The Solvency ii
Directive
CHAPTER
IV
THIRD COUNTRIES
Article 263
Parent
undertakings outside the Community: verification of
equivalence
1. In the case referred to in point (c) of
Article 211(2), the supervisory authorities concerned shall
verify
whether the insurance and reinsurance undertakings, the parent
undertaking of which has its head office outside the Community, are
subject to supervision, by a third country supervisory authority,
which is equivalent to that provided for by this Title on the
supervision at the level of the group of insurance and reinsurance
undertakings referred to in points (a) and (b) of Article
211(2).
The verification shall be carried out by the
supervisory authority which would be the group supervisor if the
criteria set out in Article 251(2) were to apply, at the request of
the parent undertaking or of any of the insurance and reinsurance
undertakings authorised in the Community or on its own initiative,
unless the Commission had concluded previously in respect of the
equivalence of the third country involved. In so doing, that
supervisory authority shall consult the other supervisory
authorities concerned, and CEIOPS, before taking a
decision.
1a. The Commission may adopt implementing measures
specifying the criteria to assess whether the prudential regime in a
third-country for the supervision of groups is equivalent to that
laid down in this Title. Those measures designed to amend
non-essential elements of this Directive by supplementing it shall
be adopted in accordance with the regulatory procedure with scrutiny
referred to in Article 304(3).
2. The Commission may adopt,
after consultation of the European Insurance and Occupational
Pensions Committee and in accordance with the procedure referred to
in Article 304(2), and taking into account the criteria adopted in
accordance with paragraph 1a, a decision as to whether the
prudential regime for the supervision of groups in a third-country
is equivalent to that laid down in this Title.
Those
decisions shall be regularly reviewed to take into account any
changes to the prudential regime for the supervision of groups laid
down in this Title and to the prudential regime in the third country
for the supervision of groups and to any other change in regulation
that may affect the decision of equivalence.
When a decision
has been adopted by the Commission, in accordance with the first
subparagraph, in respect of a third country, that decision shall be
recognised as determinative for the purposes of the verification
referred to in paragraph 1.
Article 263a
Parent
undertaking outside the Community: equivalence
1. In the
event of equivalent supervision referred to in Article 263, Member
States shall rely on the equivalent group supervision exercised by
the third-country supervisory authorities, in accordance with
paragraph 2.
2. Articles 251 to 262 shall apply mutatis
mutandis to the cooperation with third-country supervisory
authorities.
Article 264
Parent undertakings
outside the Community: absence of equivalence
1. In the
absence of equivalent supervision referred to in Article 263, Member
States shall apply to the insurance and reinsurance undertakings
either Articles 216 to 262, by analogy and with the exception of
Articles 234 to 247, or one of the methods set out in paragraph
2.
The general principles and methods set out in Articles 216
to 262 shall apply at the level of the insurance holding company,
third-country insurance undertaking or third-country reinsurance
undertaking.
For the sole purpose of the
group solvency
calculation, the parent undertaking shall be
treated as if it were
an insurance or reinsurance undertaking subject to the same
conditions as laid down in TITLE I, Chapter VI, Section 3,
Subsections 1, 2 and 3 as regards the own funds eligible for the
Solvency Capital Requirement and to either of the
following:
(a) a Solvency Capital Requirement determined in
accordance with the principles of Article 224 where it is an
insurance holding company;
(b) a Solvency Capital Requirement
determined in accordance with the principles of Article 225, where
it is a third-country insurance undertaking or a third-country
reinsurance undertaking.
2. Member States shall allow their
supervisory authorities to apply other methods which ensure
appropriate supervision of the insurance and reinsurance
undertakings in a group.
These methods must be agreed by the group
supervisor, after consultation with the other supervisory
authorities concerned.
The supervisory authorities
may in
particular require the establishment of an insurance holding company
which has its head office in the Community, and apply this Title to
the insurance and reinsurance undertakings in the group headed by
that insurance holding company.
The methods chosen shall
allow the objectives of the group supervision as defined in this
Title to be achieved and shall be notified to the other supervisory
authorities concerned and the Commission.
Article
265
Parent undertakings outside the Community:
levels
Where the parent undertaking referred to in Article
263 is itself a subsidiary of an insurance holding company having
its head office outside the Community or of a third-country
insurance or reinsurance undertaking, Member States shall apply the
verification provided for in Article 263 only at the level of the
ultimate parent undertaking which is a third-country insurance
holding company, a third-country insurance undertaking or a
third-country reinsurance undertaking
However, Member States
shall allow their supervisory authorities to decide, in the absence
of equivalent supervision referred to in Article 263, to carry out a
new verification at a lower level where a parent undertaking of
insurance or reinsurance undertakings exists, whether a
third-country insurance holding company, a third-country insurance
undertaking or a third-country reinsurance undertaking.
In
such a case, the supervisory authority referred to in the second
subparagraph of Article 263(1) shall explain its decision to the
group.
Article 264 shall apply mutatis
mutandis.
Article 266
Cooperation with third
countries supervisory authorities
1. The Commission may
submit proposals to the Council for the negotiation of agreements
with one or more third countries regarding the means of exercising
group supervision over:
(a) insurance or reinsurance
undertakings which have, as participating undertakings, undertakings
within the meaning of Article 211 which have their head office
situated in a third country; and
(b) third-country insurance
undertakings or third-country reinsurance undertakings which have,
as participating undertakings, undertakings within the meaning of
Article 211 which have their head office in the Community.
2.
The agreements referred to in paragraph 1 shall in particular seek
to ensure both:
(a) that the supervisory authorities of the
Member States are able to obtain the information necessary for the
supervision at the level of the group of insurance and reinsurance
undertakings which have their head office in the Community and which
have subsidiaries or hold participations in undertakings outside the
Community; and
(b) that the supervisory authorities of third
countries are able to obtain the information necessary for the
supervision at the level of the group of third-country insurance and
reinsurance undertakings which have their head office in their
territories and which have subsidiaries or hold participations in
undertakings in one or more Member States.
3. Without
prejudice to Article 391(1) and (2) of the Treaty, the Commission
shall, with the assistance of the European Insurance and
Occupational Pensions Committee, examine the outcome of the
negotiations referred to in paragraph 1.
CHAPTER
V
MIXED-ACTIVITY INSURANCE HOLDING COMPANIES
Article
267
Intra-group transactions
1. Member States shall
ensure that, where the parent undertaking of one or more insurance
or reinsurance undertakings is a mixed-activity insurance holding
company, the supervisory authorities responsible for the supervision
of these insurance or reinsurance undertakings exercise general
supervision over transactions between these insurance or reinsurance
undertakings and the mixed-activity holding company and its related
undertakings.
2. Articles 249, 253 to 259 and 262 shall apply
mutatis mutandis.
Article 268
Cooperation with
third countries
As concerns cooperation with third countries,
Article 266 shall apply mutatis mutandis.
TITLE
IV
REORGANISATION AND WINDING-UP OF INSURANCE
UNDERTAKINGS
CHAPTER I
SCOPE AND
DEFINITIONS
Article 269
Scope of this
Title
This Title shall apply to reorganisation measures and
winding-up proceedings concerning the following:
(1)
insurance undertakings;
(2.) branches situated in the
territory of the Community of insurance undertakings which have
their head office outside the Community.
Article
270
Definitions
1. For the purpose of this Title the
following definitions shall apply:
(a) "competent
authorities" means the administrative or judicial authorities of the
Member States which are competent for the purposes of the
reorganisation measures or the winding-up proceedings;
(b)
"branch" means any permanent presence of an insurance undertaking in
the territory of a Member State other than the home Member State
which carries on insurance activities ;
(c)
"reorganisation
measures" means measures involving any intervention by the competent
authorities which are intended to preserve or restore the financial
situation of an insurance undertaking and which affect pre-existing
rights of parties other than the insurance undertaking itself,
including but not limited to measures involving the possibility of a
suspension of payments, suspension of enforcement measures or
reduction of claims;
(d) "winding-up proceedings" means
collective proceedings involving the realisation of the assets of an
insurance undertaking and the distribution of the proceeds among the
creditors, shareholders or members as appropriate, which necessarily
involve any intervention by the competent authorities, including
where the collective proceedings are terminated by a composition or
other analogous measure, whether or not they are founded on
insolvency or are voluntary or compulsory;
(e)
"administrator" means any person or body appointed by the competent
authorities for the purpose of administering reorganisation
measures;
(f) "liquidator" means any person or body appointed
by the competent authorities or by the governing bodies of an
insurance undertaking for the purpose of administering winding-up
proceedings;
(g) "insurance claims" means any amount which is
owed by an insurance undertaking to insured persons, policyholders,
beneficiaries or to any injured party having direct right of action
against the insurance undertaking and which arises from an insurance
contract or from any operation provided for in points (b) and (c) of
Article 2(3) in direct insurance business, including amounts set
aside for those persons, when some elements of the debt are not yet
known.
The premiums owed by an insurance undertaking as a
result of the non-conclusion or cancellation of insurance contracts
and operations referred to in point (g) of the first subparagraph in
accordance with the law applicable to such contracts or operations
before the opening of the winding-up proceedings shall also be
considered insurance claims.
2. For the purpose of applying
this Title to reorganisation measures and winding-up proceedings
concerning a branch situated in a Member State of an insurance
undertaking whose head office is located outside the Community the
following definitions shall apply:
(a) "home Member State"
means the Member State in which the branch was granted authorisation
according to Articles 143 to 147;
(b) "supervisory
authorities" means the supervisory authorities of the Member State
in which the branch was authorised;
(c) "competent
authorities" means the competent authorities of the Member State in
which the branch was authorised.
CHAPTER
II
REORGANISATION MEASURES
Article 271
Adoption
of reorganisation measures - Applicable law
1. Only the
competent authorities of the home Member State shall be entitled to
decide on the reorganisation measures with respect to an insurance
undertaking, including its branches.
2. The reorganisation
measures shall not preclude the opening of winding-up proceedings by
the home Member State.
3. The reorganisation measures shall
be governed by the laws, regulations and procedures applicable in
the home Member State, unless otherwise provided in Articles 287 to
294.
4. Reorganisation measures taken in accordance with the
legislation of the home Member State shall be fully effective
throughout the Community without any further formalities, including
against third parties in other Member States, even if the
legislation of those other Member States does not provide for such
reorganisation measures or alternatively makes their implementation
subject to conditions which are not fulfilled.
5. The
reorganisation measures shall be effective throughout the Community
once they become effective in the home Member
State.
Article 272
Information to the supervisory
authorities
The competent authorities of the home Member
State shall inform as a matter or urgency the supervisory
authorities of that Member State of their decision on any
reorganisation measure, where possible before the adoption of such a
measure and failing that immediately thereafter.
The
supervisory authorities of the home Member State shall inform as a
matter of urgency the supervisory authorities of all other Member
States of the decision to adopt reorganisation measures including
the possible practical effects of such measures.
Article
273
Publication of decisions on reorganisation
measures
1. Where an appeal is possible in the home Member
State against a reorganisation measure, the competent authorities of
the home Member State, the administrator or any person entitled to
do so in the home Member State shall make public the decision on a
reorganisation measure in accordance with the publication procedures
provided for in the home Member State and, furthermore, publish in
the Official Journal of the European Union at the earliest
opportunity an extract from the document establishing the
reorganisation measure.
The supervisory authorities of the
other Member States which have been informed of the decision on a
reorganisation measure pursuant to Article 272 may ensure the
publication of such decision within their territory in the manner
they consider appropriate.
2. The publications provided for
in paragraph 1 shall specify the competent authority of the home
Member State, the applicable law as provided in Article 271(3) and
the administrator appointed, if any. They shall be made in the
official language or in one of the official languages of the Member
State in which the information is published.
3. The
reorganisation measures shall apply regardless of the provisions
concerning publication set out in paragraphs 1 and 2 and shall be
fully effective as against creditors, unless the competent
authorities of the home Member State or the law of that Member State
provide otherwise.
4. Where reorganisation measures affect
exclusively the rights of shareholders, members or employees of an
insurance undertaking, considered in those capacities, paragraphs 1,
2 and 3 shall not apply unless the law applicable to the
reorganisation measures provides otherwise.
The competent
authorities shall determine the manner in which the parties referred
to in the first subparagraph are to be informed in accordance with
the applicable law.
Article 274
Information to
known creditors - Right to lodge claims
1. Where the law of
the home Member State requires a claim to be lodged in order for it
to be recognised or provides for compulsory notification of a
reorganisation measure to creditors who have their habitual
residence, domicile or head office in that State, the competent
authorities of the home Member State or the administrator shall also
inform known creditors who have their habitual residence, domicile
or head office in another Member State, in accordance with Articles
283 and 285(1).
2. Where the law of the home Member State
provides for the right of creditors who have their habitual
residence, domicile or head office in that Member State to lodge
claims or to submit observations concerning their claims, creditors
who have their habitual residence, domicile or head office in
another Member State shall have the same right in accordance with
Articles 284 and 285(2).
CHAPTER III
WINDING-UP
PROCEEDINGS
Article 275
Opening of winding-up
proceedings - Information to the supervisory authorities
1.
Only the competent authorities of the home Member State shall be
entitled to take a decision concerning the opening of winding-up
proceedings with regard to an insurance undertaking, including its
branches in other Member States. This decision may be taken in the
absence, or following the adoption, of reorganisation
measures.
2. A decision concerning the opening of winding-up
proceedings of an insurance undertaking, including its branches in
other Member States, adopted in accordance with the legislation of
the home Member State shall be recognised without further formality
throughout the Community and shall be effective there as soon as the
decision is effective in the Member State in which the proceedings
are opened.
3. The competent authorities of the home Member
State shall inform as a matter of urgency the supervisory
authorities of that Member State of the decision to open winding-up
proceedings, if possible before the proceedings are opened and
failing that immediately thereafter.
The supervisory
authorities of the home Member State shall inform as a matter of
urgency the supervisory authorities of all other Member States of
the decision to open winding-up proceedings including the possible
practical effects of such proceedings.
Article
276
Applicable law
1. The decision to open winding-up
proceedings with regard to an insurance undertaking, the winding-up
proceedings and their effects shall be governed by the law
applicable in the home Member State unless otherwise provided in
Articles 287 to 294.
2. The law of the home Member State
shall determine at least the following:
(a) the assets which
form part of the estate and the treatment of assets acquired by, or
devolving to, the insurance undertaking after the opening of the
winding-up proceedings;
(b) the respective powers of the
insurance undertaking and the liquidator;
(c) the conditions
under which set-off may be invoked;
(d) the effects of the
winding-up proceedings on current contracts to which the insurance
undertaking is party;
(e) the effects of the winding-up
proceedings on proceedings brought by individual creditors, with the
exception of lawsuits pending referred to in Article 294;
(f)
the claims which are to be lodged against the estate of the
insurance undertaking and the treatment of claims arising after the
opening of winding-up proceedings;
(g) the rules governing
the lodging, verification and admission of claims;
(h) the
rules governing the distribution of proceeds from the realisation of
assets, the ranking of claims, and the rights of creditors who have
obtained partial satisfaction after the opening of winding-up
proceedings by virtue of a right in rem or through a
set-off;
(i) the conditions for and the effects of closure of
winding-up proceedings, in particular by composition;
(j)
rights of the creditors after the closure of winding-up
proceedings;
(k) the party who is to bear the cost and
expenses incurred in the winding-up proceedings;
(l) the
rules relating to the nullity, voidability or unenforceability of
legal acts detrimental to all the creditors.
Article
277
Treatment of insurance claims
1. Member States
shall ensure that insurance claims take precedence over other claims
on the insurance undertaking in one or both of the following
ways:
(a) with respect to assets representing the technical
provisions, insurance claims shall take absolute precedence over any
other claim on the insurance undertaking;
(b) with respect to
the whole of the assets of the insurance undertaking, insurance
claims shall take precedence over any other claim on the insurance
undertaking with the only exception of the following:
(i)
claims by employees arising from employment contracts and employment
relationships;
(ii) claims by public bodies on
taxes;
(iii) claims by social security systems;
(iv)
claims on assets subject to rights in rem.
2. Without
prejudice to paragraph 1, Member States may provide that the whole
or a part of the expenses arising from the winding-up procedure, as
determined by their national law, shall take precedence over
insurance claims.
3. Member States which have chosen the
option provided for in point (a) of paragraph 1 shall require
insurance undertakings to establish and keep up to date a special
register in accordance with Article 278.
Article
278
Special register
1. Every insurance undertaking
shall keep at its head office a special register of the assets used
to cover the technical provisions calculated and invested in
accordance with law of the home Member State.
2. Where an
insurance undertaking carries on both non-life and life activities,
it shall keep at its head office separate registers for each type of
business.
However, where a Member State authorises insurance
undertakings to cover life and the risks listed in classes 1 and 2
of point A of Annex I, it may provide that those insurance
undertakings must keep a single register for the whole of their
activities.
3. The total value of the assets entered, valued
in accordance with the law applicable in the home Member State,
shall at no time be less than the value of the technical
provisions.
4. Where an asset entered in the register is
subject to a right in rem in favour of a creditor or a third party,
with the result that part of the value of the asset is not available
for the purpose of covering commitments, that fact shall be recorded
in the register and the amount not available shall not be included
in the total value referred to in paragraph 3.
5. In the
following cases the treatment of an asset in the case of the
winding-up of the insurance undertaking with respect to the method
provided for in point (a) of Article 157(1) shall be determined by
the legislation of the home Member State, except where Articles 288,
289 or 290 apply to that asset:
(a) where the asset used to
cover technical provisions is subject to a right in rem in favour of
a creditor or a third party, without meeting the conditions set out
in paragraph 4;
(b) where such an asset is subject to a
reservation of title in favour of a creditor or of a third
party;
(c) where a creditor has a right to demand the set-off
of his claim against the claim of the insurance
undertaking;
6. Once winding-up proceedings have been opened,
the composition of the assets entered in the register in accordance
with paragraphs 1 to 5 shall not be changed and no alteration other
than the correction of purely clerical errors shall be made in the
registers, except with the authorisation of the competent
authority.
However, the liquidators shall add to those assets
the yield therefrom and the value of the pure premiums received in
respect of the class of insurance concerned between the opening of
the winding-up proceedings and the time of payment of the insurance
claims or until any transfer of portfolio is effected.
7. If
the product of the realisation of assets is less than their
estimated value in the registers, the liquidators shall justify this
to the supervisory authorities of the home Member
States.
Article 279
Subrogation to a guarantee
scheme
The home Member State may provide that, where the
rights of insurance creditors have been subrogated to a guarantee
scheme established in that Member State, claims by that scheme shall
not benefit from the provisions of 277(1).
Article
280
Representation of preferential claims by
assets
Member States which choose the option set out in point
(b) of Article 277(1) shall require every insurance undertaking to
ensure that the claims which may take precedence over insurance
claims pursuant to point (b) of Article 277(1) and which are
registered in the insurance undertaking's accounts are represented,
at any moment and independently from a possible winding-up, by
assets.
Article 281
Withdrawal of the
authorisation
1. Where the opening of winding-up proceedings
is decided in respect of an insurance undertaking, the authorisation
of that undertaking shall be withdrawn in accordance with the
procedure laid down in Article 142, except to the extent necessary
for the purposes of paragraph 2.
2. The withdrawal of
authorisation pursuant to paragraph 1 shall not prevent the
liquidator or any other person appointed by the competent
authorities from carrying on some of the activities of the insurance
undertakings in so far as that is necessary or appropriate for the
purposes of winding-up.
The home Member State may provide
that such activities shall be carried on with the consent and under
the supervision of the supervisory authorities of that Member
State.
Article 282
Publication of decisions on
winding-up procedures
1. The competent authority, the
liquidator or any person appointed for that purpose by the competent
authority shall publish the decision to open winding-up proceedings
in accordance with the publication procedures provided for in the
home Member State and also publish an extract from the winding-up
decision in the Official Journal of the European Union.
The
supervisory authorities of all other Member States which have been
informed of the decision to open winding-up proceedings in
accordance with Article 275(3) may ensure the publication of such
decision within their territories in the manner they consider
appropriate.
2. The publication referred to in paragraph 1
shall specify the competent authority of the home Member State, the
applicable law and the liquidator appointed. It shall be in the
official language or in one of the official languages of the Member
State in which the information is published.
Article
283
Information to known creditors
1. When winding-up
proceedings are opened, the competent authorities of the home Member
State, the liquidator or any person appointed for that purpose by
the competent authorities shall without delay individually inform by
written notice each known creditor who has his habitual residence,
domicile or head office in another Member State.
2. The
notice referred to in paragraph 1 shall cover time limits, the
sanctions laid down with regard to those time limits, the body or
authority empowered to accept the lodging of claims or observations
relating to claims and any other measures.
The notice shall
also indicate whether creditors whose claims are preferential or
secured in rem need to lodge their claims.
In the case of
insurance claims, the notice shall further indicate the general
effects of the winding-up proceedings on the insurance contracts, in
particular, the date on which the insurance contracts or the
operations will cease to produce effects and the rights and duties
of insured persons with regard to the contract or
operation.
Article 284
Right to lodge
claims
1. Any creditor, including public authorities of
Member States, whose habitual residence, domicile or head office is
situated in a Member State other than the home Member State shall
have the right to lodge claims or to submit written observations
relating to claims.
2. The claims of all creditors referred
to in paragraph 1 shall be treated in the same way and given the
same ranking as claims of an equivalent nature which may be lodged
by creditors who have their habitual residence, domicile or head
office in the home Member State. Competent authorities shall
therefore operate without discrimination at Community level.
3. Except in cases where the law of the home Member State
allows otherwise, a creditor shall send to the competent authority
copies of any supporting documents and shall indicate the following:
(a) the nature and the amount of the claim;
(b) the
date on which the claim arose;
(c) whether he alleges
preference, security in rem or reservation of title in respect of
the claim;
(d) where appropriate, what assets are covered by
his security.
The precedence granted to insurance claims by
Article 277 need not be indicated.
Article
285
Languages and form
1. The information in the
notice referred to in Article 283(1) shall be provided in the
official language or one of the official languages of the home
Member State.
For that purpose a form shall be used bearing
one of the following headings in all the official languages of the
European Union:
(a) "Invitation to lodge a claim; time
limits to be observed";
(b) where the law of the home Member
State provides for the submission of observations relating to
claims, "Invitation to submit observations relating to a claim; time
limits to be observed".
However, where a known creditor is a
holder of an insurance claim, the information in the notice referred
to in Article 283(1) shall be provided in the official language or
one of the official languages of the Member State in which the
creditor has his habitual residence, domicile or head
office.
2. Creditors who have their habitual residence,
domicile or head office in a Member State other than the home Member
State may lodge their claims or submit observations relating to
claims in the official language or one of the official languages of
that other Member State.
However, in that case, the lodging
of their claims or the submission of observations on their claims,
as appropriate, shall bear the heading "Lodgement of claim" or
"Submission of observations relating to claims", as appropriate, in
the official language or one of the official languages of the home
Member State.
Article 286
Regular information to
the creditors
1. Liquidators shall, in an appropriate manner,
keep creditors regularly informed on the progress of the
winding-up.
2. The supervisory authorities of the Member
States may request information on developments in the winding-up
procedure from the supervisory authorities of the home Member
State.
CHAPTER IV
COMMON PROVISIONS
Article
287
Effects on certain contracts and rights
By way of
derogation from Articles 271 and 276, the effects of the opening of
reorganisation measures or of winding-up proceedings shall be
governed as follows:
(1) in the case of employment contracts
and employment relationships, solely by the law of the Member State
applicable to the employment contract or employment
relationship;
(2) in the case of contracts conferring the
right to make use of or acquire immovable property solely by the law
of the Member State in whose territory the immovable property is
situated;
(3) in the case of rights of the insurance
undertaking with respect to immovable property, a ship or an
aircraft subject to registration in a public register by the law of
the Member State under whose authority the register is
kept.
Article 288
Rights in rem of third
parties
1. The opening of reorganisation measures or
winding-up proceedings shall not affect the rights in rem of
creditors or third parties in respect of tangible or intangible,
movable or immovable assets - both specific assets and collections
of indefinite assets as a whole which change from time to time -
which belong to the insurance undertaking and which are situated
within the territory of another Member State at the time of the
opening of such measures or proceedings.
2. The rights
referred to in paragraph 1 shall at least include:
(a) the
right to dispose of assets or have them disposed of and to obtain
satisfaction from the proceeds of or income from those assets, in
particular by virtue of a lien or a mortgage;
(b) the
exclusive right to have a claim met, in particular a right
guaranteed by a lien in respect of the claim or by assignment of the
claim by way of a guarantee;
(c) the right
to demand the
assets from, or to require restitution by, anyone having possession
or use of them contrary to the wishes of the party so
entitled;
(d) a right to the beneficial use of
assets.
3. The right, recorded in a public register and
enforceable against third parties, under which a right in rem within
the meaning of paragraph 1 may be obtained, shall be considered a
right in rem.
4. Paragraph 1 shall not preclude actions for
nullity, voidability or unenforceability referred to in point (l) of
Article 276(2).
[Note by George Lekatis: Right in rem is right associated with a
property / right against a thing or property. In personam right is
the right associated with a specific person / against a person and
its property]
Article 289
Reservation of
title
1. The opening of reorganisation measures or winding-up
proceedings against an insurance undertaking purchasing an asset
shall not affect the rights of a seller which are based on a
reservation of title where at the time of the opening of such
measures or proceedings the asset is situated within the territory
of a Member State other than the Member State in which such measures
or proceedings were opened.
2. The opening, after delivery of
the asset, of reorganisation measures or winding-up proceedings
against an insurance undertaking which is selling an asset shall not
constitute grounds for rescinding or terminating the sale and shall
not prevent the purchaser from acquiring title where at the time of
the opening of such measures or proceedings the asset sold is
situated within the territory of a Member State other than the State
in which such measures or proceedings were opened.
3.
Paragraphs 1 and 2 shall not preclude actions for nullity,
voidability or unenforceability referred to in point (l) of Article
276(2).
Article 290
Set-off
1. The opening of
reorganisation measures or winding-up proceedings shall not affect
the right of creditors to demand the set-off of their claims against
the claims of the insurance undertaking, where such a set-off is
permitted by the law applicable to the claim of the insurance
undertaking.
2. Paragraph 1 shall not preclude actions for
nullity, voidability or unenforceability referred to in point (l) of
Article 276(2).
Article 291
Regulated
markets
1. Without prejudice to Article 288 the effects of a
reorganisation measure or the opening of winding-up proceedings on
the rights and obligations of the parties to a regulated market
shall be governed solely by the law applicable to that
market.
2. Paragraph 1 shall not preclude any action for
nullity, voidability, or unenforceability referred to in point (l)
of Article 276(2) which may be taken to set aside payments or
transactions under the law applicable to that
market.
Article 292
Detrimental acts
Point
(l) of Article 276(2) shall not apply where a person who has
benefited from a legal act which is detrimental to all the creditors
provides proof that that act is subject to the law of a Member State
other than the home Member State, and that law does not allow any
means of challenging that act in the relevant case.
Article
293
Protection of third-party purchasers
The following
law shall be applicable where, by an act concluded after the
adoption of a reorganisation measure or the opening of winding-up
proceedings, an insurance undertaking disposes, for consideration,
of any of the following:
(1) in the case of an immovable
asset, the law of the Member State in whose territory the immovable
asset is localised;
(2) in the case of a ship or an aircraft
subject to registration in a public register, the law of the Member
State under whose authority the register is kept;
(3) in the
case of transferable or other securities whose existence or transfer
presupposes entry in a register or account laid down by law or which
are placed in a central deposit system governed by the law of a
Member State, the law of the Member State under whose authority the
register, account or system is kept.
Article
294
Lawsuits pending
The effects of reorganisation
measures or winding-up proceedings on a pending lawsuit concerning
an asset or a right of which the insurance undertaking has been
divested shall be governed solely by the law of the Member State in
which the lawsuit is pending.
Article
295
Administrators and liquidators
1. The appointment
of the administrator or the liquidator shall be evidenced by a
certified copy of the original decision of appointment or by any
other certificate issued by the competent authorities of the home
Member State.
The Member State within whose territory the
administrator or liquidator wishes to act may require a translation
into the official language or one of the official languages of that
Member State. No formal authentication of that translation or other
similar formality shall be required.
2. Administrators and
liquidators shall be entitled to exercise within the territory of
all the Member States all the powers which they are entitled to
exercise within the territory of the home Member
State.
Persons to assist or represent administrators and
liquidators may be appointed, in accordance with the law of the home
Member State, in the course of the reorganisation measure or
winding-up proceedings, in particular in host Member States and,
specifically, in order to help overcome any difficulties encountered
by creditors in that State.
3. In exercising their powers
according to the law of the home Member State, administrators or
liquidators shall comply with the law of the Member States within
whose territory they wish to take action, in particular with regard
to procedures for the realisation of assets and the informing of
employees.
Those powers shall not include the use of force or
the right to rule on legal proceedings or
disputes.
Article 296
Registration in a public
register
1. The administrator, liquidator or any other
authority or person duly empowered in the home Member State may
request that a reorganisation measure or the decision to open
winding-up proceedings be registered in any relevant public register
kept in the other Member States.
However, if a Member State
provides for mandatory registration, the authority or person
referred to in the first subparagraph shall take all the measures
necessary to ensure such registration.
2. The costs of
registration shall be regarded as costs and expenses incurred in the
proceedings.
Article 297
Professional
secrecy
All persons required to receive or divulge
information in connection with the procedures laid down in Articles
272, 275 and 298 shall be bound by professional secrecy, as laid
down in Articles 63 to 68, with the exception of any judicial
authorities to which existing national provisions
apply.
Article 298
Treatment of branches of third
country insurance undertakings
Where an insurance undertaking
whose head office is outside the Community has branches established
in more than one Member State, each branch shall be treated
independently with regard to the application of this
Title.
The competent authorities and the supervisory
authorities of those Member States shall endeavour to coordinate
their actions.
Any administrators or liquidators shall
likewise endeavour to coordinate their
actions.
  
Return to Index
Solvency ii Introduction (1) to (10)
Solvency ii Introduction (11) to (20)
Solvency ii Introduction (21) to (30)
Solvency ii Introduction (31) to (40)
Solvency ii Introduction (41) to (50)
Solvency ii Introduction (51) to (60)
Solvency ii Introduction (61) to (70)
Solvency ii Introduction (71) to (80)
Solvency ii Introduction (81) to (95)
Solvency ii Articles 1 to 10
Solvency ii Articles 11 to 20
Solvency ii Articles 21 to 30
Solvency ii Articles 31 to 39
Solvency ii Articles 40 to 49
Solvency ii Articles 50 to 62
Solvency ii Articles 63 to 71
Solvency ii Articles 72 to 85
Solvency ii Articles 86 to 99
Solvency ii Articles 100 to 125
Solvency ii Articles 126 to 142
Solvency ii Articles 143 to 159
Solvency ii Articles 160 to 173
Solvency ii Articles 174 to 203
Solvency ii Articles 204 to 215
Solvency ii Articles 216 to 233
Solvency ii Articles 234 to
262
Solvency ii Articles 263 to 298
Solvency ii Articles 300 to 313
Solvency ii ANNEX 1 to 3
Solvency ii ANNEX 4 to 5
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