The Solvency ii
Directive
SECTION 5 - PROFESSIONAL SECRECY, EXCHANGE OF INFORMATION AND
PROMOTION OF SUPERVISORY CONVERGENCE
Article 63
Obligation
Member States shall provide that all persons who are working or
who have worked for the supervisory authorities, as well as auditors
and experts acting on behalf of those authorities, are bound by the
obligation of professional secrecy.
Without prejudice to
cases covered by criminal law, any confidential information received
by such persons whilst performing their duties may not be divulged
to any person or authority whatsoever, except in summary or
aggregate form, such that individual insurance and reinsurance
undertakings cannot be identified.
However, where an
insurance or reinsurance undertaking has been declared bankrupt or
is being compulsorily wound up, confidential information which does
not concern third parties involved in attempts to rescue that
undertaking may be divulged in civil or commercial proceedings.
Article 64
Exchange of information
between supervisory authorities of Member States
Article 63 shall not preclude the exchange of information between
supervisory authorities of different Member States.
Such information
shall be subject to the obligation of professional secrecy laid down
in Article 63.
Article 65
Cooperation agreements with third countries
Member
States may conclude cooperation agreements providing for the
exchange of information with the supervisory authorities of third
countries or with authorities or bodies of third countries as
defined in Article 67 (1) and (2) only if the information to be
disclosed is subject to guarantees of professional secrecy at least
equivalent to those referred to in this Section.
Such exchange of information must be intended for the performance of
the supervisory task of those authorities or bodies.
Where
the information to be disclosed by a Member State to a third country
originates in another Member State, it may not be disclosed without
the express agreement of the supervisory authorities of that Member
State and, where appropriate, solely for the purposes for which
those authorities gave their agreement.
Article 66
Use of confidential
information
Supervisory authorities which receive
confidential information under Articles 63 or 64 may use it only in
the course of their duties and for the following purposes:
(1) to check that the conditions governing the taking up of the
business of insurance or reinsurance are met and to facilitate the
monitoring of the conduct of such business, especially with regard
to the monitoring of the technical provisions, the Minimum Capital
Requirement, the Solvency Capital Requirement and the governance
system;
(2) to impose sanctions;
(3) in administrative
appeals against decisions of the supervisory authorities;
(4) in court proceedings under this Directive.
Article 67
Exchange of information
with other authorities
1. Articles 63 and 66 shall not
preclude any of the following:
(a) the exchange of
information, between several supervisory authorities in the same
Member State in the discharge of their supervisory functions;
(b) the exchange of information, in the discharge of their
supervisory functions, between supervisory authorities and any of
the following which are situated in the same Member State:
(i) authorities responsible for the supervision of credit
institutions and other financial organisations and the authorities
responsible for the supervision of financial markets;
(ii)
bodies involved in the liquidation and bankruptcy of insurance
undertakings, or reinsurance undertakings and in other similar
procedures;
(iii) persons responsible for carrying out
statutory audits of the accounts of insurance undertakings,
reinsurance undertakings and other financial institutions;
(c) the disclosure to bodies which administer compulsory winding-up
proceedings or guarantee funds, of information necessary to the
performance of their duties.
The exchange of information
referred to in points (b) and (c) of the first subparagraph may also
take place between different Member States.
The information
received by those authorities, bodies and persons shall be subject
to the obligation of professional secrecy laid down in Article 63.
2. Articles 63 to 66 shall not preclude Member States from
authorising exchanges of information between the supervisory
authorities and any of the following:
(a) the authorities
responsible for overseeing the bodies involved in the liquidation
and bankruptcy of insurance undertakings, reinsurance undertakings
and other similar procedures;
(b) the authorities
responsible for overseeing the persons charged with carrying out
statutory audits of the accounts of insurance undertakings,
reinsurance undertakings, credit institutions, investment firms and
other financial institutions;
(c) independent actuaries of
insurance undertakings or reinsurance undertakings carrying out
legal supervision of those undertakings and the bodies responsible
for overseeing such actuaries.
Member States which apply the
first subparagraph shall require at least that the following
conditions are met:
(a) the information must be for the
purpose of carrying out the overseeing or legal supervision referred
to in the first subparagraph;
(b) the information received
must be subject to the conditions of professional secrecy laid down
in Article 63;
(c) where the information originates in
another Member State, it may not be disclosed without the express
agreement of the supervisory authorities from which it originates
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 the first and second subparagraphs.
3. Articles 63 to 66 shall not preclude Member States from
authorising, with the aim of strengthening the stability, and
integrity, of the financial system, the exchange of information
between the supervisory authorities and the authorities or bodies
responsible for the detection and investigation of breaches of
company law.
Member States which apply the first subparagraph
shall require that at least the following conditions are met:
(a) the information must be intended for the purpose of
detection and investigation as referred to in the first
subparagraph;
(b) information received must be subject to the
obligation of professional secrecy laid down in Article 63;
(c) where the information originates in another Member State, it may
not be disclosed without the express agreement of the supervisory
authorities from which it originates and, where appropriate, solely
for the purposes for which those authorities gave their agreement.
Where, in a Member State, the authorities or bodies referred to
in the first subparagraph perform their task of detection or
investigation with the aid of persons appointed, in view of their
specific competence, for that purpose and not employed in the public
sector, the possibility of exchanging information provided for in
the first subparagraph may be extended to such persons under the
conditions set out in the second subparagraph.
In order to
implement point (c) of the second subparagraph, the authorities or
bodies referred to in the first subparagraph shall communicate to
the supervisory authorities from which the information originates
the names and precise responsibilities of the persons to whom it is
to be sent.
4. Member States shall communicate to the
Commission and to the other Member States the names of the
authorities, persons or bodies which may receive information
pursuant to paragraph 3.
Article
68
Disclosure of information to government administrations
responsible for financial legislation
Articles 63 and
66 shall not preclude Member States from authorising, under
provisions laid down by law, 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
insurance or reinsurance undertakings and to inspectors acting on
behalf of those departments.
Such disclosures may be made
only where necessary for reasons of prudential control. Member
States shall, however, provide that information received under
Articles 64 and 67(1), and information obtained by means of on-site
verification referred to in Article 32 may only be disclosed with
the express consent of the supervisory authorities from which the
information originated or of the supervisory authorities of the
Member State in which the on-site verification was carried out.
Article 69
Transmission of
information to central banks and monetary authorities
Without prejudice to this Section a supervisory authority may
transmit information intended for the performance of their tasks to
the following:
(1) central banks and other bodies with a
similar function in their capacity as monetary authorities;
(2) where appropriate, other public authorities responsible for
overseeing payment systems.
Such authorities or bodies may
also communicate to the supervisory authorities such information as
they may need for the purposes of Article 66. Information received
in this context shall be subject to the obligation of professional
secrecy imposed in this Section.
Article 70
Supervisory convergence
1. Member States
shall ensure that the mandates of supervisory authorities take into
account, in an appropriate way, a European Union dimension.
2. Member States shall ensure that in the exercise of their duties
supervisory authorities have regard to the convergence in respect of
supervisory tools and supervisory practices in the application of
the laws, regulations and administrative requirements adopted
pursuant to this Directive. For this purpose, Member States shall
ensure that the supervisory authorities participate in the
activities of the CEIOPS pursuant to Commission Decision 2009/79/EC
of 23 January 2009 and take duly into account its guidelines and
recommendations referred to in paragraph 3.
3. The CEIOPS
shall, where necessary, provide for non-legally binding guidelines
and recommendations concerning the implementation of the provisions
of this Directive and its implementing measures in order to enhance
the convergence of supervisory practices. In addition, the CEIOPS
shall report regularly and at least every two years to the European
Parliament, the Council and the Commission on the progress of the
supervisory convergence in the Community.
SECTION 6- DUTIES OF AUDITORS
Article 71
Duties of auditors
1. Member States
shall provide at least that persons authorised within the meaning of
Eighth Council Directive 84/253/EEC of 10 April 1984 based on
Article 54 (3) (g) of the Treaty on the approval of persons
responsible for carrying out the statutory audits of accounting
documents , who perform in an insurance or reinsurance undertaking
the statutory audit referred to in Article 51 of Fourth Council
Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of
the Treaty on the annual accounts of certain types of companies ,
Article 37 of Directive 83/349/EEC or Article 31 of Directive
85/611/EEC or any other statutory task, shall have a duty to report
promptly to the supervisory authorities any fact or decision
concerning that undertaking of which they have become aware while
carrying out that task and which is liable to bring about any of the
following:
(a) 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 insurance and reinsurance undertakings;
(b) the impairment
of the continuous functioning of the insurance or reinsurance
undertaking;
(c) the refusal to certify the accounts or to
the expression of reservations;
(d) the non-compliance with
the Solvency Capital Requirement;
(e) the non-compliance with
the Minimum Capital Requirement.
The persons referred to in
the first subparagraph shall likewise have a duty to report any
facts and decisions of which they have become aware in the course of
carrying out a task as described in the first subparagraph in an
undertaking which has close links resulting from a control
relationship with the insurance or reinsurance undertaking within
which they are carrying out that task.
2. The disclosure in
good faith to the supervisory 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.
 
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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