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The Solvency ii Directive
TITLE V

OTHER PROVISIONS

Article 300
Right to apply to the courts


Member States shall ensure that decisions taken in respect of an insurance or a reinsurance undertaking under laws, regulations and administrative provisions implementing this Directive are subject to the right to apply to the courts.

Article 301
Cooperation between the Member States and the Commission


1. The Member States shall cooperate with each other for the purpose of facilitating the supervision of insurance and reinsurance within the Community and the application of this Directive.

2. The Commission and the supervisory authorities of the Member States shall collaborate closely with each other for the purpose of facilitating the supervision of insurance and reinsurance within the Community and of examining any difficulties which may arise in the application of this Directive.

3. Member States shall inform the Commission of any major difficulties to which the application of this Directive gives rise.

The Commission and the supervisory authorities of the Member States concerned shall examine those difficulties as quickly as possible in order to find an appropriate solution.


Article 302
Euro


Where this Directive makes reference to the Euro, the exchange value in national currencies to be used with effect from 31 December of each year shall be the value which applies on the last day of the preceding October for which exchange values for the Euro are available in all Community currencies.


Article 303
Review of amounts expressed in euro


The amounts expressed in euro in this Directive shall be adapted every five years, by increasing the base amount in euro by the percentage change in the Harmonised Indices of Consumer Prices of all Member States as published by Eurostat starting from 31 October 2012 until the date of adaptation and rounded up to a multiple of EUR 100 000.

If the percentage change since the previous adaptation is less than 5 %, the amounts will not be adapted.

The Commission shall publish the adapted amounts in the Official Journal of the European Union.

The adapted amounts shall be implemented by Member States within 12 months of the publication in the Official Journal of the European Union.


Article 304
Committee procedure


1. The Commission shall be assisted by the European Insurance and Occupational Pensions Committee established by Commission Decision 2004/9/EC of 5 November 2003 .

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

3. Where reference is made to this paragraph, Articles 5a(1) to (4) of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.


Article 305
Notifications submitted prior to entry into force of the laws, regulations and administrative provisions necessary to comply with Articles 56 to 62


The assessment procedure applied to proposed acquisitions for which notifications referred to in Article 56 have been submitted to the competent authorities prior to the entry into force of the laws, regulations and administrative provisions necessary to comply with Articles 56 to 62, shall be carried out in accordance with the national law of Member States in force at the time of notification.


Article 305a
Amendments to Directive 2003/41/EC


1. Article 17(2) is replaced by the following:

"For the purposes of calculating the minimum amount of additional assets, the rules laid down in Articles 17a to 17d shall apply."

2. The following Articles 17a to 17d are inserted:


"Article 17a
Available solvency margin


1. Each Member State shall require of every institution referred to in Article 17 (1) which is located in its territory an adequate available solvency margin in respect of its entire business at all times which is at least equal to the requirements in this Directive.

2. The available solvency margin shall consist of the assets of the institution free of any foreseeable liabilities, less any intangible items, including:

(a) the paid-up share capital or, in the case of an institution taking the form of a mutual undertaking, the effective initial fund plus any accounts of the members of the mutual undertaking which meet all the following criteria:

(i) the memorandum and articles of association must stipulate that payments may be made from these accounts to members of the mutual undertaking only in so far as this does not cause the available solvency margin to fall below the required level, or, after the dissolution of the undertaking, if all the undertaking's other debts have been settled;

(ii) the memorandum and articles of association must stipulate, with respect to any payments referred to in point (i) for reasons other than the individual termination of membership in the mutual undertaking, that the competent authorities must be notified at least one month in advance and can prohibit the payment within that period;

(iii) the relevant provisions of the memorandum and articles of association may be amended only after the competent authorities have declared that they have no objection to the amendment, without prejudice to the criteria stated in points (i) and (ii);

(b) reserves (statutory and free) not corresponding to underwriting liabilities;

(c) the profit or loss brought forward after deduction of dividends to be paid;

(d) 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 members and beneficiaries. The available solvency margin shall be reduced by the amount of own shares directly held by the institution.

3. Member States may provide that the available solvency margin may also consist of:

(a) cumulative preferential share capital and subordinated loan capital up to 50 % of the lesser of the available solvency margin and the required solvency margin, no more than 25 % of which shall consist of subordinated loans with a fixed maturity, or fixed-term cumulative preferential share capital, provided that binding agreements exist under which, in the event of the bankruptcy or liquidation of the institution, the subordinated loan capital or preferential share capital ranks after the claims of all other creditors and is not to be repaid until all other debts outstanding at the time have been settled.

Subordinated loan capital shall also fulfil the following conditions:

(i) only fully paid-up funds shall be taken into account;

(ii) for loans with a fixed maturity, the original maturity shall be at least five years. No later than one year before the repayment date, the institution shall submit to the competent authorities for their approval a plan showing how the available solvency margin will be kept at or brought to the required level at maturity, unless the extent to which the loan may rank as a component of the available solvency margin is gradually reduced during at least the last five years before the repayment date. The competent authorities may authorise the early repayment of such loans provided application is made by the issuing institution and its available solvency margin will not fall below the required level;

(iii) loans the maturity of which is not fixed shall be repayable only subject to five years' notice unless the loans are no longer considered as a component of the available solvency margin or unless the prior consent of the competent authorities is specifically required for early repayment. In the latter event the institution shall notify the competent authorities at least six months before the date of the proposed repayment, specifying the available solvency margin and the required solvency margin both before and after that repayment. The competent authorities shall authorise repayment only if the institution's available solvency margin will not fall below the required level;

(iv) the loan agreement shall not include any clause providing that in specified circumstances, other than the winding-up of the institution, the debt will become repayable before the agreed repayment dates;

(v) the loan agreement may be amended only after the competent authorities have declared that they have no objection to the amendment;

(b) securities with no specified maturity date and other instruments, including cumulative preferential shares other than those mentioned in point (a), up to 50 % of the lesser of the available solvency margin and the required solvency margin for the total of such securities and the subordinated loan capital referred to in point (a) provided they fulfil the following:

(i) they may not be repaid on the initiative of the bearer or without the prior consent of the competent authority;

(ii) the contract of issue shall enable the institution to defer the payment of interest on the loan;

(iii) the lender's claims on the institution shall rank entirely after those of all non-subordinated creditors;

(iv) the documents governing the issue of the securities shall provide for the loss-absorption capacity of the debt and unpaid interest, while enabling the institution to continue its business;

(v) only fully paid-up amounts shall be taken into account.

4. Upon application, with supporting evidence, by the institution to the competent authority of the home Member State and with the agreement of that competent authority, the available solvency margin may also consist of:

(a) where Zillmerising 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-Zillmerised or partially Zillmerised mathematical provision and a mathematical provision Zillmerised 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 and occupational retirement provision activities and the mathematical provisions for all policies for which Zillmerising is possible. The difference shall be reduced by the amount of any undepreciated acquisition costs entered as an asset;

(b) any hidden net reserves arising out of the valuation of assets, in so far as such hidden net reserves are not of an exceptional nature;

(c) one half of the unpaid share capital or initial fund, once the paid-up part amounts to 25 % of that share capital or fund, up to 50 % of the lesser of the available and required solvency margin.

5. The Commission may adopt implementing measures relating to paragraphs 2, 3 and 4 to take into account developments that justify a technical adjustment of the elements eligible for the available solvency margin.

Those measures designed to amend non-essential elements of this Directive shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 21b.


Article 17b
Required solvency margin


1. Subject to Article 17c, the required solvency margin shall be determined as laid down in paragraphs 2 to 6 according to the liabilities underwritten.

2. The required solvency margin shall be equal to the sum of the following two results:

(a) first result:

a 4 % fraction of the mathematical provisions relating to direct business and reinsurance acceptances gross of reinsurance cessions shall be multiplied by the ratio, for the last financial year, of the mathematical provisions net of reinsurance cessions to the gross total mathematical provisions. That ratio may in no case be less than 85 %.;

(b) 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 institution shall be multiplied by the ratio, for the last financial year, of the total capital at risk retained as the institution'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 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 %.

3. For the supplementary insurance referred to in Article 2(3)(a)(iii) of Directive 2009/.../EC [on the taking-up and pursuit of the business of Insurance and Reinsurance] the required solvency margin shall be equal to the required solvency margin for institutions as laid down in Article 17d.

4. For capital redemption operations referred to in Article 2(3)(b)(ii) of Directive 2009/.../EC [on the taking-up and pursuit of the business of Insurance and Reinsurance], the required solvency margin shall be equal to a 4 % fraction of the mathematical provisions calculated in compliance with paragraph 2(a).

5. For operations referred to in Article 2(3)(b)(i) of Directive 2009/.../EC [on the taking-up and pursuit of the business of Insurance and Reinsurance], the required solvency margin shall be equal to 1 % of their assets.

6. For assurances covered by Article 2(3)(a)(i) and (ii) of Directive 2009/.../EC [on the taking-up and pursuit of the business of Insurance and Reinsurance] linked to investment funds and for the operations referred to in Article 2(3)(b)(iii), (iv) and (v) of Directive 2009/.../EC [on the taking-up and pursuit of the business of Insurance and Reinsurance], the required solvency margin shall be equal to the sum of the following:

(a) in so far as the institution bears an investment risk, a 4 % fraction of the technical provisions, calculated in compliance with paragraph 2(a);

(b) in so far as the institution bears no investment risk but the allocation to cover management expenses is fixed for a period exceeding five years, a 1 % fraction of the technical provisions, calculated in compliance with paragraph 2(a);

(c) in so far as the institution bears no investment risk and the allocation to cover management expenses is not fixed for a period exceeding five years, an amount equivalent to 25 % of the last financial year's net administrative expenses pertaining to such business;

(d) in so far as the institution covers a death risk, a 0,3 % fraction of the capital at risk calculated in compliance with paragraph 2(b).


Article 17c
Guarantee fund


1. Member States may provide that one third of the required solvency margin as specified in Article 17b shall constitute the guarantee fund. This fund shall consist of the items listed in Article 17a(2), (3) and, with the agreement of the competent authority of the home Member State, (4)(b).

2. The guarantee fund may not be less than a minimum of EUR 3 million. Any Member State may provide for a one-fourth reduction of the minimum guarantee fund in the case of mutual undertakings and mutual-type undertakings.


Article 17d
Required solvency margin for the purpose of Article 17b(3)


1. The required solvency margin shall be determined on the basis either of the annual amount of premiums or contributions, or of the average burden of claims for the past three financial years.

2. The amount of the required solvency margin shall be equal to the higher of the two results as set out in paragraphs 3 and 4.

3. The premium basis shall be calculated using the higher of gross written premiums or contributions as calculated below, and gross earned premiums or contributions.

The premiums or contributions (inclusive of charges ancillary to premiums or contributions) due in respect of direct business in the last financial year shall be aggregated.

To this sum there shall be added the amount of premiums accepted for all reinsurance in the last financial year.

From this sum there 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 portion extending up to EUR 50 million, the second comprising the excess; 18 % and 16 % of these portions respectively shall be calculated and added together.

The sum so obtained shall be multiplied by the ratio existing in respect of the sum of the last three financial years between the amount of claims remaining to be borne by the institution after deduction of amounts recoverable under reinsurance and the gross amount of claims; that ratio may in no case be less than 50 %.

4. The claims basis shall be calculated, as follows:

The amounts of claims paid in respect of direct business (without any deduction of claims borne by reinsurers and retrocessionaires) in the periods specified in paragraph 1 shall be aggregated.

To this sum there shall be added the amount of claims paid in respect of reinsurances or retrocessions accepted during the same periods and the amount of provisions for claims outstanding established at the end of the last financial year both for direct business and for reinsurance acceptances.

From this sum there shall be deducted the amount of recoveries effected during the periods specified in paragraph 1.

From the sum then remaining, there shall be deducted the amount of provisions for claims outstanding established at the commencement of the second financial year preceding the last financial year for which there are accounts, both for direct business and for reinsurance acceptances.

One-third of the amount so obtained shall be divided into two portions, the first extending up to EUR 35 million and the second comprising the excess; 26 % and 23 % of these portions respectively shall be calculated and added together.

The sum so obtained shall be multiplied by the ratio existing in respect of the sum of the last three financial years between the amount of claims remaining to be borne by the institution after deduction of amounts recoverable under reinsurance and the gross amount of claims; that ratio may in no case be less than 50 %.

5. If the required solvency margin as calculated in paragraphs 2, 3 and 4 is lower than the required solvency margin of the year before, the required solvency margin shall be at least equal to the required solvency margin of the year before multiplied by the ratio of the amount of the technical provisions for claims outstanding at the end of the last financial year and the amount of the technical provisions for claims outstanding at the beginning of the last financial year. In these calculations technical provisions shall be calculated net of reinsurance but the ratio may in no case be higher than 1.".

3. The following Articles 21a and 21b are inserted:

"Article 21a
Review of the amount of the guarantee fund


1. The amount in euro as laid down in Article 17c(2) shall be reviewed annually starting on 31 October 2012, in order to take account of changes in the European index of consumer prices comprising all Member States as published by Eurostat.

The amount shall be adapted automatically, by increasing the base amount in euro by the percentage change in that index over the period between [31.12.2009] and the review date and rounded up to a multiple of EUR 100 000.

If the percentage change since the last adaptation is less than 5 %, no adaptation shall take place.

2. The Commission shall inform annually the European Parliament and the Council of the review and the adapted amount referred to in paragraph 1.

Article 21b
Committee procedure


1. The Commission shall be assisted by the European Insurance and Occupational Pensions Committee established by Commission Decision 2004/9/EC*.

2. Where reference is made to this paragraph, Articles 5a(1) to (4) of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.


Article 305b
Duration based equity risk sub-module


1. Member States may authorise life insurance undertakings providing:

(a) occupational-retirement-provision business in accordance with Article 4 of Directive 2003/41/EC, or

(b) retirement benefits paid by reference to reaching, or the expectation of reaching, retirement where the premiums paid for those benefits have a tax deduction which is authorised to policyholders in accordance with the national legislation of the Member State that has authorised the undertaking;

and where

(i) all assets and liabilities corresponding to this business are ring-fenced, managed and organised separately from the other activities of the insurance undertakings, without any possibility of transfer, and

(ii) the activities of the undertaking related to points a) and b), in relation to which the approach referred to in this paragraph is applied, are carried out only in the Member State where the undertaking has been authorised, and

(iii) the average duration of the liabilities corresponding to this business held by the undertaking exceeds an average of 12 years,

to apply an equity risk sub-module of the Solvency Capital Requirement, which is calibrated using a Value-at-Risk measure, over a time period, which is consistent with the typical holding period of equity investments for the undertaking concerned, with a confidence level providing the policyholders and beneficiaries with a level of protection equivalent to that set out in Article 101, if the approach provided for in this Article is only used in respect of those assets and liabilities referred in point i). In the calculation of the Solvency Capital Requirement these assets and liabilities shall be fully considered for the purpose of assessing the diversification effects, without prejudice to the need to safeguard the interests of policyholders and beneficiaries in other Member States.

Subject to the approval by the supervisory authorities, the approach set out in subparagraph 1 shall only be used if the solvency and liquidity position as well as the strategies, processes and reporting procedures of the undertaking concerned with respect to asset – liability management are such as to ensure, on an on-going basis, that it is able to hold equity investments for a period which is consistent with the typical holding period of equity investments for the undertaking concerned. The undertaking shall be able to demonstrate to the supervisory authority that this condition is verified with the level of confidence necessary to provide policyholders and beneficiaries with a level of protection equivalent to that set out in Article 101.

Insurance and reinsurance undertakings shall not revert to applying the approach set out in Article 105, except in duly justified circumstances and subject to the approval of the supervisory authorities.

2. The Commission shall submit to the European Insurance and Occupational Pensions Committee and the European Parliament, at the latest three years after the date referred to in Article 310(1), a report on the application of the approach set out in paragraph 1 of this Article and the supervisory authorities' practices adopted pursuant to paragraph 1 of this Article, accompanied, where appropriate, by any adequate proposals. This report shall address in particular cross-border effects of the use of this approach in a view to preventing regulatory arbitrage from insurance and reinsurance undertakings.


TITLE VI

TRANSITIONAL AND FINAL PROVISIONS

CHAPTER I

TRANSITIONAL PROVISIONS

SECTION 1 - INSURANCE

Article 306
Derogations and abolition of restrictive measures


1. Member States may exempt non-life insurance undertakings which on 31 January 1975 did not comply with the requirements of Articles 16 and 17 of Directive 73/239/EEC whose annual premium or contribution income on 31 July 1978 fell short of six times the amount of the minimum guarantee fund required under Article 17 (2) of Directive 73/239/EEC from the requirement to establish such minimum guarantee fund before the end of the financial year in respect of which the premium or contribution income is as much as six times such minimum guarantee fund. After considering the results of the examination provided for under Article 301(2), the Council shall unanimously decide, on a proposal from the Commission, when this exemption is to be abolished by Member States.

2. Non-life insurance undertakings set up in the United Kingdom by Royal Charter or by private Act or by special public Act may continue to carry on their business in the form in which they were constituted on 31 July 1973 for an unlimited period.

Life insurance 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 legal form in which they were constituted on 15 March 1979 for an unlimited period.

The United Kingdom shall draw up a list of the undertakings referred to in the first and second subparagraphs and communicate it to the other Member States and the Commission.

3. The societies registered in the United Kingdom under the Friendly Societies Acts may continue the activities of life insurance and savings operations which, in accordance with their objects, they were carrying on as of 15 March 1979.

4. At the request of non-life insurance undertakings which comply with the requirements of Title I, Chapter VI, Sections 2, 4 and 5,Member States shall cease to apply restrictive measures such as those relating to mortgages, deposits and securities.


Article 307
Rights acquired by existing branches and insurance undertakings


1. Branches which started business, in accordance with the provisions in force in the Member State where that branch is situated, before 1 July 1994 shall be presumed to have been subject to the procedure laid down in Article 143 and 144.

2. Articles 145 and 146 shall not affect rights acquired by insurance undertakings carrying on business under the freedom to provide services before 1 July 1994.


SECTION 2 - REINSURANCE

Article 308
Transitional period for Articles 57(3) and 60(6) of Directive 2005/68/EC


A Member State may postpone the application of the provisions of Article 57(3) of Directive 2005/68/EC amending Article 15(3) of Directive 73/239/EEC and of the provision of Article 60(6) of Directive 2005/68/EC until 10 December 2008.


Article 309
Right acquired by existing reinsurance undertakings


1. Reinsurance undertakings subject to this Directive which were authorised or entitled to conduct reinsurance business in accordance with the provisions of the Member States in which they have their head offices before 10 December 2005 shall be deemed to be authorised in accordance with Article 14.

However, they shall be obliged to comply with the provisions of this Directive concerning the carrying on of the business of reinsurance and with the requirements set out in points (b), and (d) to (g) of Article 18(1), Articles 19, 20 and 24 and Title I Chapter VI, Sections 2, 3 and 4.

2. Member States may allow reinsurance undertakings referred to in paragraph 1 which at 10 December 2005 did not comply with point (b) of Article 18(1), Articles 19 and 20 and Title I Chapter VI, Sections 2, 3 and 4 until 10 December 2008 in order to comply with such requirements.


CHAPTER II

FINAL PROVISIONS

Article 310
Transposition


1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 4, 6-8, 10, 13, 14, 18, 23, 26-31, 34-54, 66, 67, 70, 71, 73-140, 142, 144, 146, 150, 160-165, 170, 171, 176, 188, 190, 208-268, 280, 304, 305a and 305b and Annex III, IV and V by 31 October 2012 at the latest.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication.
 
They shall also include a statement that references in existing laws, regulations and administrative provisions to the directives repealed by this Directive shall be construed as references to this Directive.
 
Member States shall determine how such reference is to be made and how that statement is to be formulated.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.


Article 311
Repeal


1. Directives 73/239/EEC, 78/473/EEC, 88/357/EEC, 92/49/EEC, 98/78/EC, 2001/17/EC, 2002/83/EC and 2005/68/EC, as amended by the Directives listed in Annex VI, Part A, are repealed with effect from the day after the date set out in Article 310 (1), without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex VI, Part B.

References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VI.

2. Directives 64/225/EEC, 73/240/EEC, 76/580/EEC, 84/641/EEC and 87/344/EEC are repealed as amended by the Directives listed in Annex VI, Part A, with effect from the day after the date set out in Article 310 (1), without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex VI, Part B.


Article 312
Entry into force


This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Articles 1-3, 5, 9, 11, 12, 15-17, 19-22, 24-25, 32, 55-65, 68, 69, 72, 141, 143, 145, 147- 149, 151-159, 166-169, 172-175, 177-187, 189, 191-207, 269-279, 281-298, 300-303, 305, 306-309 and Annexes I and II, V, VI and VII shall apply from 1. November 2012.


Article 313
Addressees


This Directive is addressed to the Member States.
 
   
 
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