Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning life assurance - (recast version)
(presented by the Commission)
I. Introduction
1. In the context of a people's Europe, the Commission attaches great importance to simplifying and clarifying Community law so as to make it clearer and more accessible to the ordinary citizen, thus giving him new opportunities and the chance to make use of the specific rights it gives him.
This aim cannot be achieved so long as numerous provisions that have been amended several times, often quite substantially, remain scattered, so that they must be sought partly in the original instrument and partly in later amending ones. Considerable research work, comparing many different instruments, is thus needed to identify the current rules.
For this reason a codification of rules that have frequently been amended is also essential if Community law is to be clear and transparent.
2. On 1 April 1987 the Commission therefore decided to instruct its staff that all legislative measures should be codified after no more than ten amendments, stressing that this was a minimum requirement and that departments should endeavour to codify at even shorter intervals the texts for which they were responsible, to ensure that the Community rules were clear and readily understandable.
The Conclusions of the Presidency of the Edinburgh European Council (December 1992) confirmed this, stressing the importance of official codification as it offers certainty as to the law applicable to a given matter at a given time.
3. As a consequence the Commission included in its legislative programme for 1994 the official codification of the First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance; Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC; Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive).
4. Nevertheless, during the preparation of the abovementioned proposal for an official codification it has emerged that, with the purpose of making the new text as transparent and correct as possible, it is necessary to propose some amendments to the existing directives which in substance go further that what is acceptable for a pure codification in conformity with the Interinstitutional Agreement of 20 December 1994 on an accelerated working method for official codification of legislative texts. Therefore, all the proposed amendments as set out below concern only omissions in existing texts, clarification of certain legal situations and deletions of the names of undertakings which have ceased activities and no longer need to be mentioned.
The Commission has therefore decided to submit a proposal for the recasting of the abovementioned directives instead of a proposal for an official codification.
The reasons for new provisions representing changes of substance to existing legislation are set out below. These changes are clearly identified as such in the body of the text in italic typeset with the word "new" indicated in the right-hand margin for these provisions.
All other existing provisions where the Commission does not intend to propose changes at this time, represent the part "official codification" of the attached proposal. This part "official codification" was drawn up on the basis of the texts of the acts published in the Official Journal, in all the official languages. Their content is fully preserved, and they are brought together with only such formal amendments as are required by the codification itself. In this context it should be observed that the Commission has incorporated into the existing texts the changes to the committee ("comitology") procedures as set out in Decision 1999/468/EC, whilst reproducing the type of procedure contained in the directives which are the subject of this proposed recasting. Although the articles have been given new numbers, the old numbering has been retained in the margin for ease of reference; the correlation between the old and the new numbers is shown in a table set out in Annex V.
The formal presentation of the part "official codification" follows that usually used for proposals which merely codify legislative texts.
The inclusion of a number of changes of substance in a single text, which also codifies existing legislation, allows the European Parliament and the Council to examine these changes in their proper context and provides all interested parties with a clear and coherent, single legislative act, instead of submitting new, isolated changes or a simple codification in which some provisions would be unclear or incoherent with other legal acts.
II. Comments to the proposed amendments
1. Article 1(1), point (m). Definition of "Regulated market"
A legal analysis of the situation has lead to the conclusion that without specific derogation in the Acts of accession Member States have to respect the general provisions. As far as the abolition of the right to grant authorisations to do composite activities is concerned, it has always been the understanding that the six newest Member States would have to apply this provision from the date of accession in the case of Greece, Portugal and Spain, and the date agreed in the EEA Agreement as far as Austria, Finland and Sweden are concerned. In order to clarify the situation it is therefore proposed to amend the provision in such a way that it reflects what always have been regarded to be applicable law.
3. Article 27, point (3)(a). Calculation of "future profits"
4. Article 49(2)(g), (3) and (4). Scheme of operation
With the adoption of the third life assurance Directive, the principle of a single authorisation for the EU area was introduced. This meant that assurance undertakings authorised in one Member State could establish branches in other Member States without further authorisation. There was no longer a need for having provisions outlining the information to be provided in a scheme of operation to the host Member State before a branch could be established in that host country. Therefore, Article 11 of the first life Directive giving the content of the scheme of operation was deleted by Article 33 of the third life Directive. The requirement of presenting a scheme of operation also applies when third country branches are to be established in the EU. Unfortunately, the content of the scheme of operation for third country branches to be established in the EU has been deleted when Article 11 was deleted for Community branches. The purpose of the proposed amendment is to reintroduce the text from the deleted Article concerning the content of the scheme of operation to be applied by third country branches.
5. Article 59(2). Derogations and abolition of restrictive measures
When the first life Directive was adopted a Belgian company "Caisse générale d'épargne et de retraite (CGER)"/"Algemene Spaaren Lijfrentekas (ASLK)", the societies registered under the Friendly Societies Acts in the United Kingdom and an Italian company, Banca nazionale delle communicazioni", were granted, as an exception, the right to continue the activities they were carrying on when the Directive was notified. In the meantime, the specific structure of both the Belgian and the Italian companies have disappeared and the two companies will never again need the special derogation. Therefore, it is proposed to amend the paragraph by deleting the names of the Belgian and the Italian companies. The reference to the societies registered under the Friendly Societies Acts in the United Kingdom is still valid while it remains in this proposal.
The existing text of this paragraph is referring to "Branches which have started business, in accordance with the provisions in force in their Member State of establishment ...". The definition of establishment in Article 1 says that it shall mean the head office, an agency or a branch. Therefore, it is not clear from the text whether the provisions referred to are the home Member State provisions or the provisions of the Member State of the branch. The text was originally taken from the second banking Directive but there the text is more clear in so far as the wording there is "... their host Member State ...". The assurance Directive does not have a definition of host Member State but a definition of the "Member State of the branch". To clarify the text it is proposed to replace "Member State of establishment" with "Member State of the branch".
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the proposal from the Commission,
[1] OJ C
Acting in accordance with the procedure laid down in Article 251 of the Treaty [2],
[2] OJ C
//
Whereas:
(1) The First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance [3], Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC [4] and Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive) [5] have been substantially amended several times. Since further amendments are to be made, the Directives should be recast in the interests of clarity.
[3] OJ L 63, 13.3.1979, p. 1; Directive as last amended by Directive 95/26/EC of the European Parliament and of the Council (OJ L 168, 18.7.1995, p. 7).
[5] OJ L 360, 9.12.1992, p. 1; Directive as amended by Directive 95/26/EC.
//
(2) In order to facilitate the taking-up and pursuit of the business of life assurance, it is essential to eliminate certain divergences which exist between national supervisory legislation. In order to achieve this objective and at the same time ensure adequate protection for policy-holders and beneficiaries in all Member States, the provisions relating to the financial guarantees required of life assurance undertakings should be coordinated.
// 79/267/EEC
No 1
// 92/96/EEC
No 1
90/619/EEC
No 1
(4) Under the Treaty, any discrimination with regard to freedom to provide services based on the fact that an undertaking is not established in the Member State in which the services are provided is prohibited. That prohibition applies to services provided from any establishment in the Community, whether it be the head office of an undertaking or an agency or branch.
// 90/619/EEC
Adapted
// 92/96/EEC
No 3
(6) This Directive forms part of the body of Community legislation in the field of life assurance ----- which also includes -----Council Directive 91/674/EEC of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings [6].
// 92/96/EEC
No 4
Adapted
(7) The approach adopted consists in bringing about such harmonisation as is essential, necessary and sufficient to achieve the mutual recognition of authorisations and prudential control systems, thereby making it possible to grant a single authorisation valid throughout the Community and apply the principle of supervision by the home Member State.
// 92/96/EEC
No 5
(8) As a result, the taking-up and the pursuit of the business of assurance are ----- subject to the grant of a single official authorisation issued by the competent authorities of the Member State in which an assurance undertaking has its head office. Such authorisation enables an undertaking to carry on business throughout the Community, under the right of establishment or the freedom to provide services. The Member State of the branch or of the provision of services may not ----- require assurance undertakings which wish to carry on assurance business there and which have already been authorised in their home Member State to seek fresh authorisation. -----.
// 92/96/EEC
No 6
(9) Whereas the competent authorities should not authorise or continue the authorisation of an assurance undertaking where they are liable to be prevented from effectively exercising their supervisory functions by the close links between that undertaking and other natural or legal persons. Assurance undertakings already authorised must also satisfy the competent authorities in that respect.
No 3
Adapted
(10) The definition of "close links" in this Directive lays down minimum criteria and that does not prevent Member States from applying it to situations other than those envisaged by the definition.
// 95/26/EC
(11) The sole fact of having acquired a significant proportion of a company's capital does not constitute participation for the purposes of this Directive if that holding has been acquired solely as a temporary investment which does not make it possible to exercise influence over the structure or financial policy of the undertaking.
// 95/26/EC
No 5
// 95/26/EC
No 7
Adapted
(13) For practical reasons, it is desirable to define provision of services taking into account both the assurer's establishment and the place where the commitment is to be covered. Therefore, commitment should also be defined. Moreover, it is desirable to distinguish between activities pursued by way of establishment and activities pursued by way of freedom to provide services.
// 90/619/EEC
No 3
(14) A classification by class of insurance is necessary in order to determine, in particular, the activities subject to compulsory authorisation.
// 79/267/EEC
No 2
(15) Certain mutual associations which, by virtue of their legal status, fulfil requirements as to security and other specific financial guarantees should be excluded from the scope of this Directive. Certain organisations whose activity covers only a very restricted sector and is limited by their articles of association should also be excluded.
// 79/267/EEC
(16) Life assurance is subject to official authorisation and supervision in each Member State. The conditions for the granting or withdrawal of such authorisation should be defined. -----
// 79/267/EEC
First part
(17) It is desirable to ----- clarify the powers and means of supervision vested in the competent authorities. It is also desirable to lay down specific provisions regarding the taking-up, pursuit and supervision of activity by way of freedom to provide services.
No 4
Adapted
// 92/96/EEC
No 7
Adapted
(19) It is appropriate to provide for the possibility of exchanges of information between the competent authorities and authorities or bodies which, by virtue of their function, help to strengthen the stability of the financial system. In order to preserve the confidential nature of the information forwarded, the list of addressees must remain within strict limits.
// 95/26/EC
(20) Certain behaviour, such as fraud and insider offences, is liable to affect the stability, including integrity, of the financial system, even when involving undertakings other than financial ones.
// 95/26/EC
No 9
(21) It is necessary to specify the conditions under which the abovementioned exchanges of information are authorised.
// 95/26/EC
(22) Where it is stipulated that information may be disclosed only with the express agreement of the competent authorities, these may, where appropriate, make their agreement subject to compliance with strict conditions.
No 11
(23) For the purpose of strengthening the prudential supervision of assurance undertakings and protection of clients of assurance undertakings, it should be stipulated that an auditor must have a duty to report promptly to the competent authorities, wherever, as provided for by this Directive, he becomes aware, while carrying out his tasks, of certain facts which are liable to have a serious effect on the financial situation or the administrative and accounting organisation of an assurance undertaking.
No 15
(24) Having regard to the aim in view, it is desirable for Member States to provide that such a duty should apply in all circumstances where such facts are discovered by an auditor during the performance of his tasks in an undertaking which has close links with an assurance undertaking.
// 95/26/EC
No 16
// 95/26/EC
No 17
(26) The performance of the operations of management of group pension funds ----- cannot under any circumstances affect the powers conferred on the respective authorities with regard to the entities holding the assets -----.
// 92/96/EEC
No 8
(27) Certain provisions of this Directive define minimum standards. A home Member State may lay down stricter rules for assurance undertakings authorised by its own competent authorities.
No 9
(28) The competent authorities of the Member States must have at their disposal such means of supervision as are necessary to ensure the orderly pursuit of business by assurance undertakings throughout the Community whether carried on under the right of establishment or the freedom to provide services. In particular, they must be able to introduce appropriate safeguards or impose sanctions aimed at preventing irregularities and infringements of the provisions on assurance supervision.
No 10
(29) The ----- provisions on transfer of portfolio should ----- include provisions specifically concerning the transfer to another undertaking of the portfolio of contracts concluded by way of freedom to provide services.
// 90/619/EEC
Adapted
(30) The provisions on transfers of portfolios must be in ----- line with the single legal authorisation system ----- provided for in this Directive.
No 11
Adapted
(31) ----- ----- Undertakings formed after the dates referred to in Article 18(3) should not be authorised to carry on ----- life assurance and non-life insurance activities simultaneously. Member States should be allowed to permit ----- undertakings which, ----- on the dates refered to in Article 18(3), carried on these activities simultaneously to continue to do so provided that separate management is adopted for each of their activities, in order that the respective interests of life policy-holders and non-life policy-holders are safeguarded and the minimum financial obligations in respect of one of the activities are not borne by the other activity. ----- Member States should be given the option of requiring those existing undertakings established in their territory which carry on life assurance and non-life insurance simultaneously to put an end to this practice. Moreover, specialised undertakings should be subject to special supervision where a non-life undertaking belongs to the same financial group as a life undertaking.
// 79/267/EEC
Adapted
(32) Nothing in this Directive would prevent a composite undertaking from dividing itself into two undertakings, one active in the field of life assurance, the other in non-life insurance. In order to allow such division to take place under the best possible conditions, it is desirable to permit Member States, in accordance with Community rules of competition law, to provide for appropriate tax arrangements, in particular with regard to the capital gains such division could entail.
No 13
[7] OJ L 228, 16.8.1973, p. 3; Directive as last amended by Directive 95/26/EC.
// 92/96/EEC
Adapted
(34) It is necessary from the point of view of the protection of lives assured that every assurance undertaking should establish adequate technical provisions. The calculation of such provisions is based for the most part on actuarial principles. Those principles should be coordinated in order to facilitate mutual recognition of the prudential rules applicable in the various Member States.
// 92/96/EEC
No 13
(35) It is desirable, in the interests of prudence, to establish a minimum of coordination of rules limiting the rate of interest used in calculating the technical provisions. For the purposes of such limitation, since existing methods are all equally correct, prudential and equivalent, it seems appropriate to leave Member States a free choice as to the method to be used.
No 14
// 92/96/EEC
No 15
Adapted
(37) ----- The home Member State may not require assurance undertakings to invest the assets covering their technical provisions in particular categories of assets, as such a requirement would be incompatible with ------- the liberalisation of capital movements provided for in ------- Article 56 of the Treaty.
// 92/96/EEC
Adapted
// 79/267/EEC
No 7
Adapted
(39) Directive 92/96/EEC provided for a provisional definition of a regulated market, pending the adoption of a directive on investment services in the securities field, which would harmonise that concept at Community level. Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field [8], provides for a definition of regulated market, although it excludes from its scope life assurance activities. It is therefore appropriate to also apply the concept of regulated market to life assurance activities.
[8] OJ L 141, 11.6.1993, p. 27; Directive as last amended by European Parliament and Council Directive 97/9/EC (OJ L 84, 26.3.1997, p. 22).
(40) The list of items of which the solvency margin required by this Directive may be made up ------ takes account of new financial instruments and of the facilities granted to other financial institutions for the constitution of their own funds.
// 92/96/EEC
No 18
(41) It is necessary to require a guarantee fund, the amount and composition of which are such as to provide an assurance that the undertakings possess adequate resources when they are set up and that in the subsequent course of business the solvency margin in no event falls below a minimum of security. The whole or a specified part of this guarantee fund must consist of explicit asset items.
// 79/267/EEC
// 90/619/EEC
No 7
Adapted
92/96/EEC
No 19
90/619/EEC
No 7
(43) For life assurance contracts ------ the policy-holder should be given the opportunity of cancelling the contract within a period of between 14 and 30 days.
No 11
// 92/96/EEC
// 92/96/EEC
No 21
// 90/619/EEC
Adapted
(47) Provision should be made for a system of penalties to be imposed when, in the Member State in which the commitment is entered into, an assurance undertaking does not comply with those provisions protecting the general good that are applicable to it.
// 92/96/EEC
No 26
// 79/267/EEC
// 92/96/EEC
No 22
Adapted
(50) In an ------ internal assurance market the consumer will have a wider and more varied choice of contracts. If he is to profit fully from this diversity and from increased competition, he must be provided with whatever information is necessary to enable him to choose the contract best suited to his needs. This information requirement is all the more important as the duration of commitments can be very long. The minimum provisions must therefore be coordinated in order for the consumer to receive clear and accurate information on the essential characteristics of the products proposed to him as well as the particulars of the bodies to which any complaints of policy-holders, assured persons or beneficiaries of contracts may be addressed.
// 92/96/EEC
No 23
Adapted
(51) Publicity for assurance products is an essential means of enabling assurance business to be carried on effectively within the Community. It is necessary to leave open to assurance undertakings the use of all normal means of advertising in the Member State of the branch or of provision of services. Member States may nevertheless require compliance with their national rules on the form and content of advertising, whether laid down pursuant to Community legislation on advertising or adopted by Member States for reasons of the general good.
No 24
(52) Within the framework of the internal market, no Member State may continue to prohibit the simultaneous carrying on of assurance business within its territory under the right of establishment and the freedom to provide services. ------
// 92/96/EEC
No 25
Adapted
(53) Some Member States do not subject assurance transactions to any form of indirect taxation, while the majority apply special taxes and other forms of contribution. The structures and rates of such taxes and contributions vary considerably between the Member States in which they are applied. It is desirable to prevent existing differences leading to distortions of competition in assurance services between Member States. Pending subsequent harmonisation, application of the tax systems and other forms of contribution provided for by the Member States in which commitments entered into are likely to remedy that problem and it is for the Member States to make arrangements to ensure that such taxes and contributions are collected.
// 92/96/EEC
// 92/96/EEC
No 28
(55) The coordinated rules concerning the pursuit of the business of direct insurance within the Community should, in principle, apply to all undertakings operating on the market and, consequently, also to agencies and branches where the head office of the undertaking is situated outside the Community. As regards the methods of supervision this Directive lays down ------ special provisions for such agencies or branches, in view of the fact that the assets of the undertakings to which they belong are situated outside the Community.
No 10
(56) It is desirable to provide for the conclusion of reciprocal agreements with one or more third countries in order to permit the relaxation of such special conditions, while observing the principle that such agencies and branches should not obtain more favourable treatment than Community undertakings.
// 79/267/EEC
No 11
(57) A provision should be made for a flexible procedure to make it possible to assess reciprocity with third countries on a Community basis. The aim of this procedure is not to close the Community's financial markets but rather, as the Community intends to keep its financial markets open to the rest of the world, to improve the liberalisation of the global financial markets in other third countries. To that end, this Directive provides for procedures for negotiating with third countries. As a last resort, --- the possibility of taking measures involving the suspension of new applications for authorisation or the restriction of new authorisations should be provided for using the regulatory procedure under Article 5 of Council Decision 1999/468/EC [9].
// 90/619/EEC
Adapted
// 79/267/EEC
Adapted
(59) In order to clarify the legal regime applicable to life assurance activities covered by this Directive, some provisions of Directives 79/267/EEC, 90/619/EEC and 92/96/EEC should be adapted. For that purpose some provisions concerning the establishment of the solvency margin and the rights acquired by branches of assurance undertakings established before 1 July 1994 should be amended. The content of the scheme of operation of branches of third country undertakings to be established in the Community should also be defined.
// New
(60) Technical adjustments to the detailed rules laid down in this Directive may be necessary from time to time to take account of the future development of the assurance industry. The Commission will make such adjustments as and when necessary, after consulting the Insurance Committee set up by Council Directive 91/675/EEC [10], in the exercise of the implementing powers conferred on it by the Treaty. These measures being measures of general scope within the meaning of Article 2 of Decision 1999/468/EC, they should be adopted by the use of the regulatory procedure provided for in Article 5 of that Decision.
[10] OJ L 374, 31.12.1991, p. 32.
// 92/96/EEC
No 29
Adapted
// 79/267/EEC
Second Part
(62) Pursuant to Article 15 of the Treaty, account should be taken of the extent of the effort which must be made by certain economies at different stages of development. Therefore, transitional arrangements should be adopted for the gradual application of this Directive by certain Member States.
// 92/96/EEC
No 31
(63) Directives 79/267/EEC and 90/619/EEC granted special derogation with regard to some undertakings existing at the time of the adoption of these Directives. Such undertakings have thereafter modified their structure. Therefore they do not need any longer such special derogation.
// New
(64) This Directive should not affect the obligations of Member States concerning the deadlines for transposition and for application of the Directives set out in Annex IV, Part B.
HAVE ADOPTED THIS DIRECTIVE:
//
TITLE I DEFINITIONS AND SCOPE 23
Article 1 Definitions 23
Article 2 Scope 26
Article 3 Activities and bodies excluded 27
Article 5 Scope of authorisation 30
Article 6 Conditions for obtaining authorisation 31
Article 7 Scheme of operations 34
Article 8 Shareholders and members with qualifying holdings 35
Article 9 Refusal of authorisation 35
TITLE III CONDITIONS GOVERNING THE BUSINESS OF ASSURANCE 36
Chapter 1 Principles and methods of financial supervision 36
Article 10 Competent authorities and object of supervision 36
Article 11 Supervision of branches established in another Member State 37
Article 13 Accounting, prudential and statistical information: supervisory powers 38
Article 14 Transfer of portfolio 39
Article 15 Qualifying holdings 40
Article 16 Professional secrecy 41
Article 17 Duties of auditors 46
Article 19 Separation of life assurance and non-life insurance management 49
Chapter 2 Rules Relating to Technical Provisions 50
Article 20 Establishment of technical provisions 50
Article 22 Assets covering technical provisions 55
Article 24 Rules for investment diversification 59
Article 26 Matching rules 62
Article 28 Minimum solvency margin 68
Article 29 Guarantee fund 71
Chapter 4 Contract Law and Conditions of Assurance 73
Article 32 General good 74
Article 33 Rules relating to conditions of assurance and scales of premiums 74
Article 34 Cancellation period 75
Chapter 5 Assurance undertakings in difficulty or in an irregular situation 76
Article 36 Assurance Undertakings in difficulty 76
Article 37 Withdrawal of authorisation 77
TITLE IV PROVISIONS RELATING TO RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES 79
Article 39 Freedom to provide services: prior notification to the home
Member State 81
Article 40 Freedom to provide services: notification by the home Member State 81
Article 42 Language 82
Article 43 Rules relating to conditions of assurance and scales of premiums 82
Article 44 Assurance Undertakings not complying with the legal provisions 82
Article 46 Winding up 85
Article 47 Statistical information on cross border activities 85
Article 48 Taxes on premiums 85
TITLE V RULES APPLICABLE TO AGENCIES OR BRANCHES ESTABLISHED WITHIN THE COMMUNITY AND BELONGING TO UNDERTAKINGS WHOSE HEAD OFFICES ARE OUTSIDE THE COMMUNITY 87
Article 49 Principles and conditions of authorisation 87
Article 50 Rules applicable to branches of third country undertakings 89
Article 51 Transfer of portfolio 91
Article 52 Technical provisions 93
Article 54 Advantages to undertakings authorised in more than one Member State 94
Article 55 Agreements with third countries 95
TITLE VI RULES APPLICABLE TO SUBSIDIARIES OF PARENT UNDERTAKINGS GOVERNED BY THE LAWS OF A THIRD COUNTRY AND TO ACQUISITIONS OF HOLDINGS BY SUCH PARENT UNDERTAKINGS 96
Article 56 Information from Member States to the Commission 96
Article 58 Committee procedure 99
TITLE VII TRANSITIONAL AND OTHER PROVISIONS 100
Article 59 Derogations and abolition of restrictive measures 100
Article 60 Proof of good repute 101
Article 62 Transitional regime for Sweden 102
TITLE VIII FINAL PROVISIONS 103
Article 63 Cooperation between the Member States and the Commission 103
to provide services 103
Article 66 Committee procedure 105
Article 68 Right to apply to the courts 106
Article 70 Implementation of new provisions 107
Article 71 Information to the Commission 107
Article 72 Repealed Directives and their correlation with this Directive 107
Annex I Classes of insurance 109
Annex II Matching rules 110
Annex IV Repealed Directives and deadlines for transposition into national law 114
Annex V Correlation table 115
//
Article 1 Definitions //
//
1. For the purposes of this Directive:
(a) assurance undertaking shall mean an undertaking which has received official authorisation in accordance with Article 4;
//
92/96/EEC
//
// 92/96/EEC
Article 3
//
(c) establishment shall mean the head office, an agency or a branch of an undertaking -----;
// 90/619/EEC
Adapted
(d) commitment shall mean a commitment represented by one of the kinds of insurance or operations referred to in Article 2;
Article 1(c)
//
// 92/96/EEC
Adapted
(f) Member State of the branch shall mean the Member State in which the branch covering the commitment is situated; // 92/96/EEC
Article 1(e)
(g) Member State of the commitment shall mean the Member State where the policy-holder has his habitual residence or, if the policy-holder is a legal person, the Member State where the latter's establishment, to which the contract relates, is situated;
// 90/619/EEC
Adapted
(h) Member State of the provision of services shall mean the Member State of the commitment, --------, if the commitment is covered by an assurance undertaking or a branch situated in another Member State;
Article 1(f)
//
// 92/96/EEC
//
(j) qualifying holding shall mean a direct or indirect holding in an undertaking which represents 10 % or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of the undertaking in which a holding subsists;
[12] OJ L 348, 17.12.1988, p. 62.
Article 1(h)
(k) parent undertaking shall mean a parent undertaking as defined in Articles 1 and 2 of Directive 83/349/EEC;
Article 1(i)
Article 1(j)
(m) regulated market shall mean:
- in the case of a market situated in a Member State, a regulated market as defined in Article 1, point (13) of Directive 93/22/EEC, and
- in the case of a market situated in a third country, a financial market recognised by the home Member State of the assurance undertaking which meets comparable requirements. Any financial instruments dealt in on that market must be of a quality comparable to that of the instruments dealt in on the regulated market or markets of the Member State in question;
//
(n) competent authorities shall mean the national authorities which are empowered by law or regulation to supervise assurance undertakings;
// 92/96/EEC
(o) matching assets shall mean the representation of underwriting liabilities which can be required to be met in a particular currency by assets expressed or realisable in the same currency;
Article 5(b)
Adapted
//
// 79/267/EEC
Adapted
(q) capital at risk shall mean the amount payable on death less the mathematical provision for the main risk;
Article 5(d)
//
// 95/26/EC
Adapted
(i) participation, which shall mean the ownership, direct or by way of control, of 20% or more of the voting rights or capital of an undertaking; or
(ii) control, any subsidiary undertaking of a subsidiary undertaking shall also be considered a subsidiary of the parent undertaking which is at the head of those undertakings.
A situation in which two or more natural or legal persons are permanently linked to one and the same person by a control relationship shall also be regarded as constituting a close link between such persons.
2. Wherever this Directive refers to the euro, the conversion value in national currency to be adopted shall as from 31 December of each year be that of the last day of the preceding month of October for which euro conversion values are available in all the Community currencies;
79/267/EEC
Article 5(a)
Adapted Reg. 1103/97 Article 2
//
79/267/EEC
Article 1
92/96/EEC Article 2(2))
(c) management of group pension funds, i.e. operations consisting, for the undertaking concerned, in managing the investments, and in particular the assets representing the reserves of bodies that effect payments on death or survival or in the event of discontinuance or curtailment of activity;
//
79/267/EEC
Article 1
(as amended by 92/96/EEC Article 2(2))
(d) the operations referred to in (c) where they are accompanied by insurance covering either conservation of capital or payment of a minimum interest;
(e) the operations carried out by insurance companies such as those referred to in Chapter 1, Title 4 of Book IV of the French "Code des assurances".
(3) Operations relating to the length of human life which are prescribed by or provided for in social insurance legislation, when they are effected or managed at their own risk by assurance undertakings in accordance with the laws of a Member State.
//
//
(2) operations of provident and mutual-benefit institutions whose benefits vary according to the resources available and which require each of their members to contribute at the appropriate flat rate;
// 79/267/EEC
Article 2
79/267/EEC
79/267/EEC
Article 3
//
(6) mutual associations, where:
- the annual contribution income for the activities covered by this Directive does not exceed 500 000 euro for three consecutive years. If this amount is exceeded for three consecutive years this Directive shall apply with effect from the fourth year;
//
//
// 79/267/EEC
//
(a) pension insurance companies which already under Finnish law are obliged to have separate accounting and management systems for their pension activities will furthermore, as from the date of accession, set up separate legal entities for carrying out these activities;
(b) the Finnish authorities shall allow in a non-discriminatory manner all nationals and companies of Member States to perform according to Finnish legislation the activities specified in Article 2 related to this exemption whether by means of:
- ownership or participation in an existing insurance company or group;
Decision 95/1/EC, Euratom, ECSC
Decision 95/1/EC, Euratom, ECSC
(c) the Finnish authorities will submit to the Commission for approval a report within three months from the date of accession, stating which measures have been taken to split up TEL activities from normal insurance activities carried out by Finnish insurance companies in order to conform to all the requirements of this Directive.
//
TITLE II THE TAKING UP OF THE BUSINESS OF LIFE ASSURANCE //
Article 4 Principle of authorisation
The taking-up of the activities covered by this Directive shall be subject to prior official authorisation.
//
79/267/EEC
(as amended by 92/96/EEC Article 3)
//
Article 5 Scope of authorisation
1. Authorisation shall be valid for the entire Community. It shall permit an assurance undertaking to carry on business there, under either the right of establishment or freedom to provide services.
2. Authorisation shall be granted for a particular class of assurance as listed in Annex I. It shall cover the entire class, unless the applicant wishes to cover only some of the risks pertaining to that class.
Article 7
(as amended by
92/96/EEC Article 4)
//
//
//
Article 6 Conditions for obtaining authorisation //
1. The home Member State shall require every assurance undertaking for which authorisation is sought to:
(a) adopt one of the following forms:
- in the case of the Kingdom of Belgium: "société anonyme/naamloze vennootschap", "société en commandite par actions/commanditaire vennootschap op aandelen", "association d'assurance mutuelle/onderlinge verzekeringsvereniging", "société coopérative/coöperatieve vennootschap",
- in the case of the Kingdom of Denmark: "aktieselskaber", "gensidige selskaber", "pensionskasser omfattet af lov om forsikringsvirksomhed (tværgående pensionskasser)",
- in the case of the Federal Republic of Germany: "Aktiengesellschaft", "Versicherungsverein auf Gegenseitigkeit", "öffentlich-rechtliches Wettbewerbsversicherungsunternehmen",
- in the case of the French Republic: "société anonyme", "société d'assurance mutuelle", "institution de prévoyance régie par le code de la sécurité sociale", "institution de prévoyance régie par le code rural" and "mutuelles régies par le code de la mutualité"
- in the case of Ireland: incorporated companies limited by shares or by guarantee or unlimited, societies registered under the Industrial and Provident Societies Acts and societies registered under the Friendly Societies Acts,
- in the case of the Italian Republic: "societá per azioni", "societá cooperativa", "mutua di assicurazione",
// 79/267/EEC
Article 8(1)
(as amended by
Article 8(1)
92/96/EEC Article 5)
- in the case of the Grand Duchy of Luxembourg: "société anonyme", "société en commandite par actions", "association d'assurances mutuelles", "société coopérative",
- in the case of the Kingdom of the Netherlands: "naamloze vennootschap", "onderlinge waarborgmaatschappij",
//
- in the case of the Republic of Austria: "Aktiengesellschaft", "Versicherungsverein auf Gegenseitigkeit",
- in the case of the Republic of Finland: "keskinäinen vakuutusyhtiö/ömsesidigt försäkringsbolag", "vakuutusosakeyhtiö/försäkringsaktiebolag", "vakuutusyhdistys/försäkringsförening",
79/267/EEC
(as amended by
Decision 95/1/EC, Euratom, ECSC)
79/267/EEC
Article 8(1)
(as amended by
(b) limit its objects to the business provided for in this Directive and operations directly arising therefrom, to the exclusion of all other commercial business;
(c) submit a scheme of operations in accordance with Article 7;
(d) possess the minimum guarantee fund provided for in Article 29(2);
(e) be effectively run by persons of good repute with appropriate professional qualifications or experience.
//
The competent authorities shall also refuse authorisation if the laws, regulations or administrative provisions of a non-member country governing one or more natural or legal persons with which the undertaking has close links, or difficulties involved in their enforcement, prevent the effective exercise of their supervisory functions.
The competent authorities shall require assurance undertakings to provide them with the information they require to monitor compliance with the conditions referred to in this paragraph on a continuous basis. // 79/267/EEC
(as amended by
95/26/EC
Article 2(2))
Adapted
2. Member States shall require that the head offices of insurance undertakings be situated in the same Member State as their registered offices. // 79/267/EEC
(as amended by
Article 3(1))
//
3. An assurance undertaking seeking authorisation to extend its business to other classes or to extend an authorisation covering only some of the risks pertaining to one class shall be required to submit a scheme of operations in accordance with Article 7.
// 79/267/EEC
(as amended by
92/96/EEC Article 5)
Adapted
4. Member States shall not adopt provisions requiring the prior approval or systematic notification of general and special policy conditions, of scales of premiums, of the technical bases, used in particular for calculating scales of premiums and technical provisions or of forms and other printed documents which an assurance undertaking intends to use in its dealings with policy-holders.
Notwithstanding the first subparagraph, for the sole purpose of verifying compliance with national provisions concerning actuarial principles, the home Member State may require systematic notification of the technical bases used for calculating scales of premiums and technical provisions, without that requirement constituting a prior condition for an assurance undertaking to carry on its business.
Nothing in this Directive shall prevent Member States from maintaining in force or introducing laws, regulations or administrative provisions requiring approval of the memorandum and articles of association and the communication of any other documents necessary for the normal exercise of supervision.
Not later than 1 July 1999 --------, the Commission shall submit a report to the Council on the implementation of this paragraph.
5. The provisions set out in paragraphs 1 to 4 may not require that any application for authorisation be considered in the light of the economic requirements of the market.
// 79/267/EEC
Article 8(3) and (4)
Adapted
//
(b) the guiding principles as to reassurance;
(c) the items constituting the minimum guarantee fund;
(d) estimates relating to the costs of setting up the administrative services and the organisation for securing business and the financial resources intended to meet those costs;
Article 9
Adapted
(e) a plan setting out detailed estimates of income and expenditure in respect of direct business, reassurance acceptances and reassurance cessions;
(f) a forecast balance sheet;
(g) estimates relating to the financial resources intended to cover underwriting liabilities and the solvency margin.
Article 8 Shareholders and members with qualifying holdings //
The competent authorities of the home Member State shall not grant an undertaking authorisation to take up the business of assurance before they have been informed of the identities of the shareholders or members, direct or indirect, whether natural or legal persons, who have qualifying holdings in that undertaking and of the amounts of those holdings.
The same authorities shall refuse authorisation if, taking into account the need to ensure the sound and prudent management of an assurance undertaking, they are not satisfied as to the qualifications of the shareholders or members.
Article 7
//
Such provision shall also be made with regard to cases where the competent authorities have not dealt with an application for an authorisation upon the expiry of a period of six months from the date of its receipt.
// 79/267/EEC
Article 12
//
Article 10 Competent authorities and object of supervision
//
Article 15
//
Article 16
//
Article 12 Prohibition on compulsory ceding of part of underwriting //
//
-------- Member States may not require assurance undertakings to cede part of their underwriting of activities listed in Article 2 to an organisation or organisations designated by national regulations.
Article 22(1)
-------- //
1. Each Member State shall require every assurance undertaking whose head office is situated in its territory to produce an annual account, covering all types of operation, of its financial situation and solvency.
(a) make detailed enquiries regarding the assurance undertaking's situation and the whole of its business, inter alia by:
- gathering information or requiring the submission of documents concerning its assurance business,
- carrying out on-the-spot investigations at the assurance undertaking's premises;
(b) take any measures, with regard to the assurance undertaking, its directors or managers or the persons who control it, that are appropriate and necessary to ensure that the undertaking's business continues to comply with the laws, regulations and administrative provisions with which the undertaking must comply in each Member State and in particular with the scheme of operations in so far as it remains mandatory, and to prevent or remedy any irregularities prejudicial to the interests of the assured persons; //
Article 23
(as amended by 92/96/EEC
Article 10)
Adapted
//
//
Article 14 Transfer of portfolio //
1. Under the conditions laid down by national law, each Member State shall authorise assurance undertakings with head offices within its territory to transfer all or part of their portfolios of contracts, concluded under either the right of establishment or the freedom to provide services, to an accepting office established within the Community, if the competent authorities of the home Member State of the accepting office certify that after taking the transfer into account the latter possesses the necessary solvency margin.
2. Where a branch proposes to transfer all or part of its portfolio of contracts, concluded under either the right of establishment or the freedom to provide services, the Member State of the branch shall be consulted.
3. In the circumstances referred to in paragraphs 1 and 2, the authorities of the home Member State of the transferring assurance undertaking shall authorise the transfer after obtaining the agreement of the competent authorities of the Member States of the commitment.
4. The competent authorities of the Member States consulted shall give their opinion or consent to the competent authorities of the home Member State of the transferring assurance undertaking within three months of receiving a request; the absence of any response within that period from the authorities consulted shall be considered equivalent to a favourable opinion or tacit consent.
Article 11(2) to (6)
5. A transfer authorised in accordance with this Article shall be published as laid down by national law in the Member State of the commitment. Such transfers shall automatically be valid against policy-holders, the assured persons and any other person having rights or obligations arising out of the contracts transferred.
This provision shall not affect the Member States' rights to give policy-holders the option of cancelling contracts within a fixed period after a transfer.
Article 15 Qualifying holdings
The competent authorities of the home Member State shall have a maximum of three months from the date of the notification provided for in the first subparagraph to oppose such a plan if, in view of the need to ensure sound and prudent management of the assurance undertaking, they are not satisfied as to the qualifications of the person referred to in the first subparagraph. If they do not oppose the plan in question they may fix a maximum period for its implementation.
2. Member States shall require any natural or legal person who proposes to dispose, directly or indirectly, of a qualifying holding in an assurance undertaking first to inform the competent authorities of the home Member State, indicating the size of his intended holding. Such a person must likewise inform the competent authorities if he proposes to reduce his qualifying holding so that the proportion of the voting rights or of the capital held by him would fall below 20%, 33% or 50% or so that the assurance undertaking would cease to be his subsidiary.
3. On becoming aware of them, assurance undertakings shall inform the competent authorities of their home Member States of any acquisitions or disposals of holdings in their capital that cause holdings to exceed or fall below one of the thresholds referred to in paragraphs 1 and 2.
// 92/96/EEC
Article 11(2) to (6)
Article 14
They shall also, at least once a year, inform them of the names of shareholders and members possessing qualifying holdings and the sizes of such holdings as shown, for example, by the information received at the annual general meetings of shareholders and members or as a result of compliance with the regulations relating to companies listed on stock exchanges.
4. Member States shall require that, if the influence exercised by the persons referred to in paragraph 1 is likely to operate to the detriment of the prudent and sound management of the assurance undertaking, the competent authorities of the home Member State shall take appropriate measures to put an end to that situation. Such measures may consist, for example, in injunctions, sanctions against directors and managers, or the suspension of the exercise of the voting rights attaching to the shares held by the shareholders or members in question.
Similar measures shall apply to natural or legal persons failing to comply with the obligation to provide prior information, as laid down in paragraph 1. If a holding is acquired despite the opposition of the competent authorities, the Member States shall, regardless of any other sanctions to be adopted, provide either for exercise of the corresponding voting rights to be suspended, or for the nullity of votes cast or for the possibility of their annulment.
Article 14
92/96/EEC
- to check that the conditions governing the taking-up of the business of assurance are met and to facilitate monitoring of the conduct of such business, especially with regard to the monitoring of technical provisions, solvency margins, administrative and accounting procedures and internal control mechanisms, or
- to impose sanctions, or
- in administrative appeals against decisions of the competent authority, or
- in court proceedings initiated pursuant to Article 68 or under special provisions provided for in this Directive and other directives adopted in the field of assurance undertakings.
// 92/96/EEC
Adapted
- the authorities responsible for overseeing the bodies involved in the liquidation and bankruptcy of assurance undertakings and other similar procedures, or
- the authorities responsible for overseeing the persons charged with carrying out statutory audits of the accounts of insurance undertakings, credit institutions, investment firms and other financial institutions, or
- independent actuaries of insurance undertakings carrying out legal supervision of those undertakings and the bodies responsible for overseeing such actuaries.
Member States which have recourse to the option provided for in the first subparagraph shall require at least that the following conditions are met:
- this information shall be for the purpose of carrying out the overseeing or legal supervision referred to in the first subparagraph;
- information received in this context shall be subject to the conditions of professional secrecy imposed in paragraph 1;
- where the information originates in another Member State, it may not be disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement.
Member States shall communicate to the Commission and to the other Member States the names of the authorities, persons and bodies which may receive information pursuant to this paragraph. // 92/96/EEC
(as inserted by
Article 4(1))
//
Member States which have recourse to the option provided for in the first subparagraph shall require at least that the following conditions are met:
- the information shall be for the purpose of performing the task referred to in the first subparagraph;
(as inserted by
Article 4(3))
8. Member States may authorise the competent authorities to transmit:
- to central banks and other bodies with a similar function in their capacity as monetary authorities;
- where appropriate, to other public authorities responsible for overseeing payment systems,
information intended for the performance of their task and may authorise such authorities or bodies to communicate to the competent authorities such information as they may need for the purposes of paragraph 4. Information received in this context shall be subject to the conditions of professional secrecy imposed in this Article.
9. In addition, notwithstanding paragraphs 1 and 4, Member States may, under provisions laid down by law, authorise the disclosure of certain information to other departments of their central government administrations responsible for legislation on the supervision of credit institutions, financial institutions, investment services and assurance undertakings and to inspectors acting on behalf of those departments.
However, such disclosures may be made only where necessary for reasons of prudential control.
However, Member States shall provide that information received under paragraphs 2 and 5 and that obtained by means of the on-the-spot verification referred to in Article 11 may never be disclosed in the cases referred to in this paragraph except with the express consent of the competent authorities which disclosed the information or of the competent authorities of the Member State in which on-the-spot verification was carried out. // 92/96/EEC
Article 15(5c)
Article 4(5))
92/96/EEC
(a) any person authorised within the meaning of Council Directive 84/253/EEC [13], performing in an assurance undertaking the task described in Article 51 of Council Directive 78/660/EEC [14], Article 37 of Directive 83/349/EEC or Article 31 of Council Directive 85/611/EEC [15] or any other statutory task, shall have a duty to report promptly to the competent authorities any fact or decision concerning that undertaking of which he has become aware while carrying out that task which is liable to:
[13] OJ L 126, 12.5.1984, p. 20.
[15] OJ L 375, 31.12.1985, p. 3. Directive as amended by Directive 95/26/EEC.
- constitute a material breach of the laws, regulations or administrative provisions which lay down the conditions governing authorisation or which specifically govern pursuit of the activities of assurance undertakings, or
- affect the continuous functioning of the assurance undertaking or
- lead to refusal to certify the accounts or to the expression of reservations;
(b) that person shall likewise have a duty to report any facts and decisions of which he becomes aware in the course of carrying out a task as described in (a) in an undertaking having close links resulting from a control relationship with the assurance undertaking within which he is carrying out the abovementioned task.
2. The disclosure in good faith to the competent authorities, by persons authorised within the meaning of Directive 84/253/EEC, of any fact or decision referred to in paragraph 1 shall not constitute a breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision and shall not involve such persons in liability of any kind. //
92/96/EEC
(as inserted by
Article 18 Pursuit of life assurance and non-life insurance activities //
//
1. Without prejudice to paragraphs 3 and 7, no undertaking may be authorised both pursuant to this Directive and pursuant to Directive 73/239/EEC.
3. Subject to paragraph 6, undertakings referred to in paragraph 2 and those which on:
- 1 January 1981 for undertakings authorised in Greece,
- 1 January 1986 for undertakings authorised in Spain and Portugal,
- 2 May 1992 for undertakings authorised in Austria, Finland and Sweden, and
- 15 March 1979 for all other undertakings,
carried on simultaneously both of the activities covered by this Directive and by Directive 73/239/EEC may continue to do so, provided that each activitity is separately managed in accordance with Article 19 of this Directive.
(as amended by
92/96/EEC Article 16)
Adapted
//
Article 13(4)-(5) (as amended by
Adapted
Adapted
// 79/267/EEC
(as amended by
Article 16)
Adapted
//
// 79/267/EEC
Article 14
Adapted
Adapted
// 79/267/EEC
Adapted
Chapter 2 Rules relating to technical provisions //
//
1. The home Member State shall require every assurance undertaking to establish sufficient technical provisions, including mathematical provisions, in respect of its entire business.
The amount of such technical provisions shall be determined according to the following principles:
// 79/267/EEC
(as amended by 92/96/EEC Article 18)
(iii) a prudent valuation is not a "best estimate" valuation, but shall include an appropriate margin for adverse deviation of the relevant factors;
(iv) the method of valuation for the technical provisions must not only be prudent in itself, but must also be so having regard to the method of valuation for the assets covering those provisions;
// 79/267/EEC
Article 17
//
79/267/EEC
(as amended by 92/96/EEC Article 18)
- single-premium contracts for a period of up to eight years,
Adapted
Adapted
D. In the case of participating contracts, the method of calculation for technical provisions may take into account, either implicitly or explicitly, future bonuses of all kinds, in a manner consistent with the other assumptions on future experience and with the current method of distribution of bonuses.
3. The home Member State shall require every assurance undertaking to cover the technical provisions in respect of its entire business by matching assets, in accordance with Article 26. In respect of business written in the Community, these assets must be localised within the Community. Member States shall not require assurance undertakings to localise their assets in a particular Member State. The home Member State may, however, permit relaxations in the rules on the localisation of assets.
4. If the home Member State allows any technical provisions to be covered by claims against reassurers, it shall fix the percentage so allowed. In such case, it may not require the localisation of the assets representing such claims.
Article 17
//
For this purpose, all aspects of the financial situation of an assurance undertaking may be taken into account, without the input from resources other than premiums and income earned thereon being systematic and permanent in such a way that it may jeopardise the undertaking's solvency in the long term.
// 92/96/EEC
Article 19
Article 22 Assets covering technical provisions //
The assets covering the technical provisions shall take account of the type of business carried on by an assurance undertaking in such a way as to secure the safety, yield and marketability of its investments, which the undertaking shall ensure are diversified and adequately spread. // 92/96/EEC
Adapted
Article 23 Categories of authorised assets //
//
1. The home Member State may not authorise assurance undertakings to cover their technical provisions with any but the following categories of assets:
A. Investments
(a) debt securities, bonds and other money- and capital-market instruments;
(b) loans;
(c) shares and other variable-yield participations;
(d) units in undertakings for collective investment in transferable securities (UCITS) and other investment funds;
(e) land, buildings and immovable property rights;
Article 21
B. Debts and claims
(f) debts owed by reassurers, including reassurers' shares of technical provisions;
(g) deposits with and debts owed by ceding undertakings;
(h) debts owed by policy-holders and intermediaries arising out of direct and reassurance operations;
(i) advances against policies;
(j) tax recoveries;
(k) claims against guarantee funds;
C. Others
(l) tangible fixed assets, other than land and buildings, valued on the basis of prudent amortisation;
[16] OJ L
3. The inclusion of any asset or category of assets listed in ..... paragraph (1) shall not mean that all these assets should automatically be accepted as cover for technical provisions. The home Member State shall lay down more detailed rules fixing the conditions for the use of acceptable assets; in this connection, it may require valuable security or guarantees, particularly in the case of debts owed by reassurers.
// 92/96/EEC
Article 21
[77/780/EEC]
(vi) debts owed by and claims against a third party may be accepted as cover for the technical provisions only after deduction of all amounts owed to the same third party;
(vii) the value of any debts and claims accepted as cover for technical provisions must be calculated on a prudent basis, with due allowance for the risk of any amounts not being realisable. In particular, debts owed by policy-holders and intermediaries arising out of assurance and reassurance operations may be accepted only in so far as they have been outstanding for not more than three months;
Article 21
//
Article 24 Rules for investment diversification //
1. As regards the assets covering technical provisions, the home Member State shall require every assurance undertaking to invest no more than:
(a) 10% of its total gross technical provisions in any one piece of land or building, or a number of pieces of land or buildings close enough to each other to be considered effectively as one investment;
(b) 5% of its total gross technical provisions in shares and other negotiable securities treated as shares, bonds, debt securities and other money- and capital-market instruments from the same undertaking, or in loans granted to the same borrower, taken together, the loans being loans other than those granted to a State, regional or local authority or to an international organisation of which one or more Member States are members. This limit may be raised to 10% if an undertaking invests not more than 40% of its gross technical provisions in the loans or securities of issuing bodies and borrowers in each of which it invests more than 5% of its assets;
(e) 10% of its total gross technical provisions in shares, other securities treated as shares and debt securities which are not dealt in on a regulated market.
// 92/96/EEC
Article 22
2. The absence of a limit in paragraph 1 on investment in any particular category does not imply that assets in that category should be accepted as cover for technical provisions without limit. The home Member State shall lay down more detailed rules fixing the conditions for the use of acceptable assets. In particular it shall ensure, in the determination and the application of those rules, that the following principles are complied with:
(i) assets covering technical provisions must be diversified and spread in such a way as to ensure that there is no excessive reliance on any particular category of asset, investment market or investment;
(ii) investment in particular types of asset which show high levels of risk, whether because of the nature of the asset or the quality of the issuer, must be restricted to prudent levels;
(iii) limitations on particular categories of asset must take account of the treatment of reassurance in the calculation of technical provisions;
(iv) where the assets held include an investment in a subsidiary undertaking which manages all or part of the assurance undertaking's investments on its behalf, the home Member State must, when applying the rules and principles laid down in this Article, take into account the underlying assets held by the subsidiary undertaking; the home Member State may treat the assets of other subsidiaries in the same way;
3. In the context of the detailed rules laying down the conditions for the use of acceptable assets, the Member State shall give more limitative treatment to:
- any loan unaccompanied by a bank guarantee, a guarantee issued by an assurance undertaking, a mortgage or any other form of security, as compared with loans accompanied by such collateral,
- UCITS not coordinated within the meaning of Directive 85/611/EEC and other investment funds, as compared with UCITS coordinated within the meaning of that Directive,
- securities which are not dealt in on a regulated market, as compared with those which are,
- bonds, debt securities and other money- and capital-market instruments not issued by States, local or regional authorities or undertakings belonging to Zone A as defined in Directive ../.../EC or the issuers of which are international organisations not numbering at least one Community Member State among their members, as compared with the same financial instruments issued by such bodies.
4. Member States may raise the limit laid down in paragraph 1(b) to 40% in the case of certain debt securities when these are issued by a credit institution which has its head office in a Member State and is subject by law to special official supervision designed to protect the holders of those debt securities. In particular, sums deriving from the issue of such debt securities must be invested in accordance with the law in assets which, during the whole period of validity of the debt securities, are capable of covering claims attaching to debt securities and which, in the event of failure of the issuer, would be used on a priority basis for the reimbursement of the principal and payment of the accrued interest.
5. Member States shall not require assurance undertakings to invest in particular categories of assets.
6. Notwithstanding paragraph 1, in exceptional circumstances and at the assurance undertaking's request, the home Member State may, temporarily and under a properly reasoned decision, allow exceptions to the rules laid down in paragraph 1 (a) to (e), subject to Article 22.
Article 22
Adapted
[89/647/EEC]
4. Where the benefits referred to in paragraphs 1 and 2 include a guarantee of investment performance or some other guaranteed benefit, the corresponding additional technical provisions shall be subject to Articles 22, 23, and 24.
// 92/96/EEC
Article 23
//
Article 26 Matching rules //
1. For the purposes of Articles 20 (3) and 52, Member States shall comply with Annex II ------ as regards the matching rules.
2. This Article shall not apply to the commitments referred to in Article 25 -----.
Article 24
//
//
The solvency margin shall consist of:
// 79/267/EEC
Article 18, second paragraph, point 1
(b) the memorandum and articles of association must stipulate, with respect to any such payments for reasons other than the individual termination of membership, that the competent authorities must be notified at least one month in advance and can prohibit the payment within that period;
//
(b) only fully paid-up funds may be taken into account;
// 79/267/EEC
(as amended by 92/96/EEC Article 25)
(f) the loan agreement may be amended only after the competent authorities have declared that they have no objection to the amendment,
- securities with no specified maturity date and other instruments that fulfil the following conditions, including cumulative preferential shares other than those mentioned in the fifth indent, up to 50% of the margin for the total of such securities and the subordinated loan capital referred to in the fifth indent:
(a) they may not be repaid on the initiative of the bearer or without the prior consent of the competent authority;
(b) the contract of issue must enable the assurance undertaking to defer the payment of interest on the loan;
(c) the lender's claims on the assurance undertaking must rank entirely after those of all non-subordinated creditors;
(d) the documents governing the issue of the securities must provide for the loss-absorption capacity of the debt and unpaid interest, while enabling the assurance undertaking to continue its business;
(e) only fully paid-up amounts may be taken into account.
(2) in so far as authorised under national law, profit reserves appearing in the balance sheet where they may be used to cover any losses which may arise and where they have not been made available for distribution to policy-holders;
// 79/267/EEC
(as amended by 92/96/EEC Article 25)
79/267/EEC
second paragraph,
Adapted
(b) where Zillmerizing is not practised or where, if practised, it is less than the loading for acquisition costs included in the premium, the difference between a non-Zillmerized or partially Zillmerized mathematical provision and a mathematical provision Zillmerized at a rate equal to the loading for acquisition costs included in the premium; this figure may not, however, exceed 3,5% of the sum of the differences between the relevant capital sums of life assurance activities and the mathematical provisions for all policies for which Zillmerizing is possible; the difference shall be reduced by the amount of any undepreciated acquisition costs entered as an asset;
(c) where approval is given by the competent authorities of the Member States concerned in which the assurance undertaking is carrying on its activities any hidden reserves resulting from the under-estimation of assets and over-estimation of liabilities other than mathematical provisions in so far as such hidden reserves are not of an exceptional nature.
Article 18
Adapted
Adapted
Article 28 Minimum solvency margin //
Subject to Article 29, the minimum solvency margin shall be determined as shown below according to the classes of insurance underwritten:
(a) For the kinds of insurance referred to in Article 2, point (1)(a) and (b) other than assurances linked to investment funds and for the operations referred to in Article 2(3), it must be equal to the sum of the following two results :
a 4% fraction of the mathematical provisions, relating to direct business gross of reinsurance cessions and to reinsurance acceptances shall be multiplied by the ratio, for the last financial year, of the total mathematical provisions net of reinsurance cessions to the gross total mathematical provisions as specified above; that ratio may in no case be less than 85%;
- second result:
for policies on which the capital at risk is not a negative figure, a 0.3% fraction of such capital underwritten by the assurance undertaking shall be multiplied by the ratio, for the last financial year, of the total capital at risk retained as the undertaking's liability after reinsurance cessions and retrocessions to the total capital at risk gross of reinsurance; that ratio may in no case be less than 50%.
For temporary assurance on death of a maximum term of three years the above fraction shall be 0.1%; for such assurance of a term of more than three years but not more than five years the above fraction shall be 0.15%.
// 79/267/EEC
Article 19
79/267/EEC
Adapted
(b) For the supplementary insurance referred to in Article 2, point (1)(c), it shall be equal to the result of the following calculation:
- the premiums or contributions (inclusive of charges ancillary to premiums or contributions) due in respect of direct business in the last financial year in respect of all financial years shall be aggregated;
- to this aggregate there shall be added the amount of premiums accepted for all reinsurance in the last financial year;
- from this sum shall then be deducted the total amount of premiums or contributions cancelled in the last financial year as well as the total amount of taxes and levies pertaining to the premiums or contributions entering into the aggregate.
The amount so obtained shall be divided into two portions, the first extending up to 10 million euro and the second comprising the excess; 18% and 16% of these portions respectively shall be calculated and added together.
The result shall be obtained by multiplying the sum so calculated by the ratio existing in respect of the last financial year between the amount of claims remaining to be borne by the assurance undertaking after deduction of transfers for reinsurance and the gross amount of claims; this ratio may in no case be less than 50%.
Reg. 1103/97 Article 2
Adapted
(e) For assurances covered by Article 2, point (1)(a) and (b) linked to investment funds and for the operations referred to in Article 2, point (2)(c), (d) and (e) it shall be equal to:
- a 4% fraction of the mathematical provisions, calculated in compliance with the conditions set out in the first result in (a) of this Article in so far as the assurance undertaking bears an investment risk, and a 1% fraction of the provisions calculated in the same way, in so far as the undertaking bears no investment risk provided that the term of the contract exceeds five years and the allocation to cover management expenses set out in the contract is fixed for a period exceeding five years,
plus
Article 19
Adapted
Adapted
Adapted
//
//
// 79/267/EEC
Article 20
2. (a) The guarantee fund may not, however, be less than a minimum of 800 000 euro.
(c) For mutual associations referred to in the second sentence of the second indent of Article 3, point (6), as soon as they come within the scope of this Directive, and for tontines, any Member State may permit the establishment of a minimum of the guarantee fund of 100 000 euro to be increased progressively to the amount fixed in (b) by successive tranches of 100 000 euro whenever the contributions increase by 500 000 euro.
// 79/267/EEC
Reg. 1103/97 Article 2
//
Article 30 Assets not used to cover technical provisions //
1. Member States shall not prescribe any rules as to the choice of the assets that need not be used as cover for the technical provisions referred to in Article 20.
2. Subject to Article 20(3), Article 36(1), (2), (3) and (5), and the second subparagraph of Article 37(1), Member States shall not restrain the free disposal of those assets, whether movable or immovable, that form part of the assets of authorised assurance undertakings.
Article 21
(as amended by 92/96/EEC Article 27)
3. Paragraphs 1 and 2 shall not preclude any measures which Member States, while safeguarding the interests of the lives assured, are entitled to take as owners or members of or partners in the assurance undertakings in question.
// Adapted
//
Chapter 4 Contract Law and Conditions of Assurance //
Article 31 Law applicable //
1. The law applicable to contracts relating to the activities referred to in this Directive shall be the law of the Member State of the commitment. However, where the law of that State so allows, the parties may choose the law of another country.
2. Where the policy-holder is a natural person and has his habitual residence in a Member State other than that of which he is a national, the parties may choose the law of the Member State of which he is a national.
A Member State in which various territorial units have their own rules of law concerning contractual obligations shall not be bound to apply the provisions of this Directive to conflicts which arise between the laws of those units.
// 90/619/EEC
//
// 92/96/EEC
Article 28
//
Article 33 Rules relating to conditions of assurance and scales of premiums //
//
Article 29
Adapted
//
1. Each Member State shall prescribe that a policy-holder who concludes an individual life-assurance contract shall have a period of between 14 and 30 days from the time when he was informed that the contract had been concluded within which to cancel the contract.
The giving of notice of cancellation by the policy-holder shall have the effect of releasing him from any future obligation arising from the contract.
2. The Member States need not apply paragraph 1 to contracts of six months' duration or less, nor where, because of the status of the policy-holder or the circumstances in which the contract is concluded, the policy-holder does not need this special protection. Member States shall specify in their rules where paragraph 1 is not applied.
Article 15
//
Article 35 Information for policy-holders //
//
1. Before the assurance contract is concluded, at least the information listed in point A of Annex III shall be communicated to the policy-holder.
4. The detailed rules for implementing this Article and Annex III shall be laid down by the Member State of the commitment.
// 92/96/EEC
//
//
//
1. If an assurance undertaking does not comply with Article 20, the competent authority of its home Member State may prohibit the free disposal of its assets after having communicated its intention to the competent authorities of the Member States of commitment.
2. For the purposes of restoring the financial situation of an assurance undertaking the solvency margin of which has fallen below the minimum required under Article 28, the competent authority of the home Member State shall require that a plan for the restoration of a sound financial position be submitted for its approval.
In exceptional circumstances, if the competent authority is of the opinion that the financial situation of the assurance undertaking will further deteriorate, it may also restrict or prohibit the free disposal of the assurance undertaking's assets. It shall inform the authorities of other Member States within the territories of which the assurance undertaking carries on business of any measures it has taken and the latter shall, at the request of the former, take the same measures.
3. If the solvency margin falls below the guarantee fund as defined in Article 29, the competent authority of the home Member State shall require the assurance undertaking to submit a short-term finance scheme for its approval.
It may also restrict or prohibit the free disposal of the assurance undertaking's assets. It shall inform the authorities of other Member States within the territories of which the assurance undertaking carries on business accordingly and the latter shall, at the request of the former, take the same measures.
// 79/267/EEC
(as amended by 92/96/EEC Article 12)
Adapted
79/267/EEC
Adapted
(a) does not make use of the authorisation within 12 months, expressly renounces it or ceases to carry on business for more than 6 months, unless the Member State concerned has made provision for authorisation to lapse in such cases;
(b) no longer fulfils the conditions for admission;
(c) has been unable, within the time allowed, to take the measures specified in the restoration plan or finance scheme referred to in Article 36;
79/267/EEC
(as amended by 92/96/EEC Article 13)
In the event of the withdrawal or lapse of the authorisation, the competent authority of the home Member State shall notify the competent authorities of the other Member States accordingly and they shall take appropriate measures to prevent the assurance undertaking from commencing new operations within their territories, under either the freedom of establishment or the freedom to provide services. The home Member State's competent authority shall, in conjunction with those authorities, take all necessary measures to safeguard the interests of the assured persons and shall restrict, in particular, the free disposal of the assets of the assurance undertaking in accordance with Article 36(1), (2), second subparagraph, and (3), second subparagraph.
2. Any decision to withdraw an authorisation shall be supported by precise reasons and notified to the assurance undertaking in question. // 79/267/EEC
Article 26
(as amended by 92/96/EEC Article 13)
//
//
//
1. An assurance undertaking that proposes to establish a branch within the territory of another Member State shall notify the competent authorities of its home Member State.
2. The Member States shall require every assurance undertaking that proposes to establish a branch within the territory of another Member State to provide the following information when effecting the notification provided for in paragraph 1:
Article 10
Article 10
(as amended by 92/96/EEC Article 32)
Adapted
The competent authorities of the home Member State shall also attest that the assurance undertaking has the minimum solvency margin calculated in accordance with Articles 28 and 29.
Adapted
Article 39 Freedom to provide services: Prior notification to the home Member State //
Any assurance undertaking that intends to carry on business for the first time in one or more Member States under the freedom to provide services shall first inform the competent authorities of the home Member State, indicating the nature of the commitments it proposes to cover.
// 90/619/EEC
(as amended by 92/96/EEC Article 34)
//
2. Where the competent authorities of the home Member State do not communicate the information referred to in paragraph 1 within the period laid down, they shall give the reasons for their refusal to the assurance undertaking within that same period. The refusal shall be subject to a right to apply to the courts in the home Member State.
// 90/619/EEC
(as amended by 92/96/EEC Article 35)
Any change which an assurance undertaking intends to make to the information referred to in Article 39 shall be subject to the procedure provided for in Articles 39 and 40. // 90/619/EEC
Adapted
The competent authorities of the Member State of the branch or the Member State of the provision of services may require that the information which they are authorised under this Directive to request with regard to the business of assurance undertakings operating in the territory of that State shall be supplied to them in the official language or languages of that State.
Article 38
Article 43 Rules relating to conditions of assurance and scales of premiums //
The Member State of the branch or of provision of services shall not lay down provisions requiring the prior approval or systematic notification of general and special policy conditions, scales of premiums, technical bases used in particular for calculating scales of premiums and technical provisions, forms and other printed documents which an assurance undertaking intends to use in its dealings with policy-holders. For the purpose of verifying compliance with national provisions concerning assurance contracts, it may require an assurance undertaking that proposes to carry on assurance business within its territory, under the right of establishment or the freedom to provide services, to effect only non-systematic notification of those policy conditions and other printed documents without that requirement constituting a prior condition for an assurance undertaking to carry on its business.
// 92/96/EEC
Article 39
//
1. Any assurance undertaking carrying on business under the right of establishment or the freedom to provide services shall submit to the competent authorities of the Member State of the branch and/or of the Member State of the provision of services all documents requested of it for the purposes of this Article in so far as assurance undertakings the head office of which is in those Member States are also obliged to do so.
2. If the competent authorities of a Member State establish that an assurance undertaking with a branch or carrying on business under the freedom to provide services in its territory is not complying with the legal provisions applicable to it in that State, they shall require the assurance undertaking concerned to remedy that irregular situation.
// 92/96/EEC
Adapted
Article 40
5. Paragraphs 2, 3 and 4 shall not affect the emergency power of the Member States concerned to take appropriate measures to prevent or penalise irregularities committed within their territories. This shall include the possibility of preventing assurance undertakings from continuing to conclude new assurance contracts within their territories.
6. Paragraphs 2, 3 and 4 shall not affect the power of the Member States to penalise infringements within their territories.
7. If an assurance undertaking which has committed an infringement has an establishment or possesses property in the Member State concerned, the competent authorities of the latter may, in accordance with national law, apply the administrative penalties prescribed for that infringement by way of enforcement against that establishment or property.
8. Any measure adopted under paragraphs 3 to 7 involving penalties or restrictions on the conduct of assurance business must be properly reasoned and communicated to the assurance undertaking concerned.
9. Every two years, the Commission shall submit to the Insurance Committee a report summarising the number and type of cases in which, in each Member State, authorisation has been refused pursuant to Articles 38 or 40 or measures have been taken under paragraph 4 of this Article. Member States shall cooperate with the Commission by providing it with the information required for that report.
//
Article 45 Advertising //
Nothing in this Directive shall prevent assurance undertakings with head offices in other Member States from advertising their services through all available means of communication in the Member State of the branch or Member State of the provision of services, subject to any rules governing the form and content of such advertising adopted in the interest of the general good.
Article 41
//
//
// 92/96/EEC
//
//
The competent authority of the home Member State shall, within a reasonable time and on an aggregate basis forward this information to the competent authorities of each of the Member States concerned which so request.
2. The law applicable to the contract pursuant to Article 31 shall not affect the fiscal arrangements applicable.
//
//
//
1. Each Member State shall make access to the activities referred to in Article 2 by any undertaking whose head office is outside the Community subject to an official authorisation.
// 79/267/EEC
(e) it possesses in the Member State where it carries on an activity assets of an amount equal in value to at least one half of the minimum amount prescribed in Article 29(2) (a) in respect of the guarantee fund and deposits one fourth of the minimum amount as security;
(f) it undertakes to keep a solvency margin complying with Article 53;
//
(g) it submits a scheme of operations in accordance with the provisions in paragraphs 3 and 4.
(c) the guiding principles as to reinsurance;
(d) the state of the undertaking's solvency margin and guarantee fund referred to in Articles 27, 28 and 29;
// New
(g) a plan setting out detailed estimates of income and expenditure in respect of direct business, reinsurance acceptances and reinsurance cessions.
Article 50 Rules applicable to branches of third country undertakings //
1. (a) Subject to point (b), agencies and branches referred to in this Title may not simultaneously carry on in a Member State the activities referred to in the Annex to Directive 73/239/EEC and those covered by this Directive.
(b) Subject to point (c), Member States may provide that agencies and branches referred to in this Title which on the date referred to in Article 18(3) carried on both activities simultaneously in a Member State may continue to do so there provided that each activity is separately managed in accordance with Article 19.
(c) Any Member State which under Article 18(6) requires undertakings established in its territory to cease the simultaneous pursuit of the activities in which they were engaged on the dates referred to in Article 18(3) must also impose this requirement on agencies and branches referred to in this Title which are established in its territory and simultaneously carry on both activities there. // 79/267/EEC
Adapted
Adapted
(d) Member States may provide that agencies and branches referred to in this Title whose head office simultaneously carries on both activities and which on the dates referred to in Article 18(3) carried on in the territory of a Member State solely the activity covered by this Directive may continue their activity there. If the undertaking wishes to carry on the activity referred to in Directive 73/239/EEC in that territory it may only carry on the activity covered by this Directive through a subsidiary.
2. Articles 13 and 36 shall apply mutatis mutandis to agencies and branches referred to in this title.
For the purposes of applying Article 36, the competent authority which supervises the overall solvency of agencies or branches shall be treated in the same way as the competent authority of the head-office Member State.
3. In the case of a withdrawal of authorisation by the authority referred to in Article 54(2), this authority shall notify the competent authorities of the other Member States where the undertaking operates and the latter authorities shall take the appropriate measures. If the reason for the withdrawal of authorisation is the inadequacy of the solvency margin calculated in accordance with Article 54(1)(a), the competent authorities of the other Member States concerned shall also withdraw their authorisations.
// Adapted
[73/239/EEC]
Article 51 Transfer of portfolio //
//
1. Under the conditions laid down by national law, each Member State shall authorise agencies and branches set up within its territory and covered by this Title to transfer all or part of their portfolios of contracts to an accepting office established in the same Member State if the competent authorities of that Member State or, if appropriate, those of the Member State referred to in Article 54 certify that after taking the transfer into account the accepting office possesses the necessary solvency margin.
2. Under the conditions laid down by national law, each Member State shall authorise agencies and branches set up within its territory and covered by this Title to transfer all or part of their portfolios of contracts to an assurance undertaking with a head office in another Member State if the competent authorities of that Member State certify that after taking the transfer into account the accepting office possesses the necessary solvency margin.
3. If under the conditions laid down by national law a Member State authorises agencies and branches set up within its territory and covered by this Title to transfer all or part of their portfolios of contracts to an agency or branch covered by this Title and set up within the territory of another Member State it shall ensure that the competent authorities of the Member State of the accepting office or, if appropriate, of the Member State referred to in Article 54 certify that after taking the transfer into account the accepting office possesses the necessary solvency margin, that the law of the Member State of the accepting office permits such a transfer and that the State has agreed to the transfer. // 79/267/EEC
(as inserted by 92/96/EEC Article 49)
4. In the circumstances referred to in paragraphs 1, 2 and 3 the Member State in which the transferring agency or branch is situated shall authorise the transfer after obtaining the agreement of the competent authorities of the Member State of the commitment, where different from the Member State in which the transferring agency or branch is situated.
5. The competent authorities of the Member States consulted shall give their opinion or consent to the competent authorities of the home Member State of the transferring assurance undertaking within three months of receiving a request; the absence of any response from the authorities consulted within that period shall be considered equivalent to a favourable opinion or tacit consent.
6. A transfer authorised in accordance with this Article shall be published as laid down by national law in the Member State of the commitment. Such transfers shall automatically be valid against policy-holders, assured persons and any other persons having rights or obligations arising out of the contracts transferred.
This provision shall not affect the Member States' right to give policy-holders the option of cancelling contracts within a fixed period after a transfer. //
Article 52 Technical provisions //
//
// 79/267/EEC
Adapted
//
Article 53 Solvency margin and guarantee fund //
3. The assets representing the minimum solvency margin must be kept within the Member State where activities are carried on up to the amount of the guarantee fund and the excess within the Community.
Article 29
Article 54 Advantages to undertakings authorised in more than one Member State //
//
1. Any undertaking which has requested or obtained authorisation from more than one Member State may apply for the following advantages which may be granted only jointly:
3. The advantages provided for in paragraph 1 may only be granted if the competent authorities of all Member States in which an application has been made agree to them. They shall take effect from the time when the selected competent authority informs the other competent authorities that it will supervise the state of solvency of the entire business of the agencies or branches within the Community.
The competent authority selected shall obtain from the other Member States the information necessary for the supervision of the overall solvency of the agencies and branches established in their territory.
// 79/267/EEC
Adapted
//
Article 55 Agreements with third countries //
//
The Community may, by means of agreements concluded pursuant to the Treaty with one or more third countries, agree to the application of provisions different from those provided for in this Title, for the purpose of ensuring, under conditions of reciprocity, adequate protection for policy-holders in the Member States. // 79/267/EEC
Article 32
//
TITLE VI RULES APPLICABLE TO SUBSIDIARIES OF PARENT UNDERTAKINGS GOVERNED BY THE LAWS OF A THIRD COUNTRY AND TO THE ACQUISITIONS OF HOLDINGS BY SUCH PARENT UNDERTAKINGS //
//
//
(b) whenever such a parent undertaking acquires a holding in a Community assurance undertaking which would turn the latter into its subsidiary. The Commission shall inform the Committee referred to in Article 58(2) accordingly.
When authorisation is granted to the direct or indirect subsidiary of one or more parent undertakings governed by the law of third countries, the structure of the group shall be specified in the notification which the competent authorities shall address to the Commission. // 79/267/EEC
(as inserted by 90/619/EEC Article 9)
//
//
Article 32b
Adapted
3 Whenever it appears to the Commission, either on the basis of the reports referred to in paragraph 2 or on the basis of other information, that a third country is not granting Community assurance undertakings effective market access comparable to that granted by the Community to insurance undertakings from that third country, the Commission may submit proposals to the Council for the appropriate mandate for negotiation with a view to obtaining comparable competitive opportunities for Community assurance undertakings. The Council shall decide by a qualified majority.
// 79/267/EEC
(as inserted by 90/619/EEC
Article 9)
Adapted
Adapted
Such limitations or suspension may not apply to the setting up of subsidiaries by assurance undertakings or their subsidiaries duly authorised in the Community, or to the acquisition of holdings in Community assurance undertakings by such undertakings or subsidiaries.
5. Whenever it appears to the Commission that one of the situations described in paragraphs 3 and 4 has arisen, the Member States shall inform it at its request:
(a) of any request for the authorisation of a direct or indirect subsidiary one or more parent undertakings of which are governed by the laws of the third country in question;
(b) of any plans for such an undertaking to acquire a holding in a Community assurance undertaking such that the latter would become the subsidiary of the former.
This obligation to provide information shall lapse whenever an agreement is reached with the third country referred to in paragraph 3 or 4 when the measures referred to in the second and third subparagraphs of paragraph 4 cease to apply.
// 79/267/EEC
Article 32b
(as inserted by 90/619/EEC Article 9)
1. The Commission shall be assisted by a committee composed of representatives of the Member States and chaired by the representative of the Commission.
2. Where reference is made to this paragraph, the regulatory procedure laid down in Article 5 of Decision 1999/468/EC shall apply, in compliance with Article 7(3) and Article 8 thereof.
//
Article 32 bis
90/619/EEC,
Adapted
//
TITLE VII TRANSITIONAL AND OTHER PROVISIONS //
Article 59 Derogations and abolition of restrictive measures //
//
1. ------ Undertakings set up in the United Kingdom by Royal Charter or by private Act or by special Public Act may carry on their activity in the form in which they were constituted on 15 March 1979 for an unlimited period.
The United Kingdom ------- shall draw up a list of such undertakings and communicate it to the other Member States and the Commission.
// 79/267/EEC
Article 33(4)
Adapted
// New
//
// 79/267/EEC
Adapted
Adapted
//
// 92/96/EEC
Adapted
Article 62 Transitional regime for Sweden //
1. The Kingdom of Sweden may operate a transitional arrangement up to 1 January 2000 for complying with Article 24 (1) (b) ------, it being understood that the Swedish authorities have submitted, before 1 July 1994 for approval by the Commission, a schedule of the measures to have the exposures exceeding the limits of Article 24(1)(b) brought within the limits laid down by this Directive;
2. No later than the date of Swedish accession and on 31 December 1997 the Swedish authorities shall present progress reports to the Commission on the measures taken to comply with this Directive. The Commission shall on the basis of these reports review these measures. In the light of developments, these measures shall, if appropriate, be adapted with a view to accelerating the process of reduction of the exposures. The Swedish authorities shall require the life assurance undertakings concerned to initiate immediately the process of reduction of the relevant exposures. The assurance undertakings concerned will at no time increase these exposures, unless they are already within the limits prescribed by this Directive and any such increase does not lead them to exceed those limits. The Swedish authorities shall submit by the end of the transitional period a final report on the results of the above measures.
Adapted
TITLE VIII FINAL PROVISIONS //
//
//
// 79/267/EEC
Adapted
Article 28
Each Member State shall inform the Commission of any major difficulties to which application of this Directive gives rise, inter alia any arising if a Member State becomes aware of an abnormal transfer of business referred to in this Directive to the detriment of undertakings established in its territory and to the advantage of agencies and branches located just beyond its borders.
The Commission and the competent authorities of the Member States concerned shall examine such difficulties as quickly as possible in order to find an appropriate solution.
Where necessary, the Commission shall submit appropriate proposals to the Council. // 90/619/EEC
Article 28
Adapted
Article 64 Reports on the development of the market under the freedom to provide services //
//
The following technical adjustments to be made to --------- this Directive shall be adopted in accordance with the procedure laid down in Article 66(2):
Article 47
- extension of the legal forms provided for in Article 6 (1) (a),
- amendments to the list set out in Error! Reference source not found., or adaptation of the terminology used in that list to take account of the development of assurance markets,
- clarification of the items constituting the solvency margin listed in Article 27 to take account of the creation of new financial instruments,
- alteration of the minimum guarantee fund provided for in Article 29(2) to take account of economic and financial developments,
- amendments, to take account of the creation of new financial instruments, to the list of assets acceptable as cover for technical provisions set out in Article 23 and to the rules on the spreading of investments laid down in Article 24,
- changes in the relaxations in the matching rules laid down in Error! Reference source not found., to take account of the development of new currency-hedging instruments or progress made in economic and monetary union,
Article 66 Committee procedure
1. The Commission shall be assisted by the Insurance Committee instituted by Directive 91/675/EEC.
2. Where reference is made to this paragraph, the regulatory procedure laid down in Article 5 of Decision 1999/468/EC shall apply, in compliance with Article 7(3) and Article 8 thereof.
3. The period provided for in Article 5(6) of Decision 1999/468/EC shall be three months.
Article 47
92/96/EC
Adapted
//
1. Branches which have started business, in accordance with the provisions in force in the Member State of the branch, before 1 July 1994 shall be presumed to have been subject to the procedure laid down in Article 38(1) to (5).
They shall be governed, from that date by Articles 13, 20, 36, 37 and 44.
// 92/96/EEC
New: "the branch"
Adapted
Adapted
//
//
// 92/96/EEC
//
Review of amounts expressed in euro //
1. The Commission shall submit to the Council before 15 March 1985 a report dealing with the effects of the financial requirements imposed by this Directive on the situation in the insurance markets of the Member States. ---------
// 79/267/EEC
Adapted