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
|
