The Solvency ii
Directive
(81) Conditions
should be laid down under which
winding-up proceedings which, without being founded on insolvency,
involve a priority order for the payment of insurance claims, fall
within the scope of this Directive.
Claims by the employees of
an insurance undertaking arising from employment contracts and
employment relationships should be capable of being subrogated to a
national wage guarantee scheme.
Such
subrogated claims should benefit from the
treatment determined by the home Member State's law (lex concursus).
(82) Reorganisation measures do not preclude the opening of
winding-up proceedings.
Winding-up
proceedings should therefore be able to be opened in the absence of,
or following, the adoption of reorganisation measures and they may
terminate with composition or other analogous measures, including
reorganisation measures.
(83) Only
the competent authorities of the home Member State should be
empowered to take decisions on winding-up proceedings concerning
insurance undertakings.
The
decisions should produce their effects throughout the Community and
should be recognised by all Member States.
The decisions should be published in accordance with the procedures
of the home Member State and in the Official Journal of the European
Union.
Information should also be made
available to known creditors who are
resident in the Community who should have the right to lodge claims
and submit observations.
(84) All the assets and
liabilities of the insurance undertaking should be taken into
consideration in the winding-up proceedings.
(85) All the
conditions for the opening, conduct and closure of winding-up
proceedings should be governed by the law of the home Member State.
(86) In order to ensure coordinated action amongst the Member
States the supervisory authorities of the home Member State and
those of all the other Member States should be informed as a matter
of urgency of the opening of winding-up proceedings.
(87) It
is of utmost importance that insured
persons, policyholders, beneficiaries and any injured party having a
direct right of action against the insurance undertaking on a claim
arising from insurance operations be protected in winding-up
proceedings, it being understood that such protection does not
include claims which arise not from obligations under insurance
contracts or insurance operations but from civil liability caused by
an agent in negotiations for which, according to the law applicable
to the insurance contract or operation, the agent himself is not
responsible under such insurance contract or operation.
In order to achieve that objective, Member
States should be provided with a choice between equivalent methods
to ensure special treatment for insurance creditors, neither of
those methods impeding a Member State from establishing a ranking
between different categories of insurance claims.
Furthermore, an appropriate balance should be ensured between the
protection of insurance creditors and other privileged creditors
protected under the legislation of the Member State concerned.
(88) The opening of winding-up proceedings should involve the
withdrawal of the authorisation to conduct business granted to the
insurance undertaking unless this has already occurred.
(89)
Creditors should have the right to lodge claims or to submit written
observations in winding-up proceedings.
Claims by creditors resident in a Member
State other than the home Member State should be treated in
the same way as equivalent claims in the home Member State without
any discrimination on the grounds of nationality or residence.
(90) In order to protect legitimate expectations and the
certainty of certain transactions in Member States other than the
home Member State, it is necessary to determine the law applicable
to the effects of reorganisation measures and winding-up proceedings
on pending lawsuits and on individual enforcement actions arising
from lawsuits.
(91) The measures necessary for the
implementation of this Directive should be adopted in accordance
with Council Decision 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers conferred on the
Commission.
In particular power should be
conferred on the Commission to adopt measures concerning the
adaptation of Annexes and measures specifying in particular the
supervisory powers and actions to be taken and laying down more
detailed requirements in areas such as the governance system, public
disclosure, assessment criteria in relation to qualifying holdings,
calculation of technical provisions and capital requirements,
investment rules and group supervision.
Since those measures are of general scope
and are designed to amend non-essential elements of this Directive,
and to supplement it by the addition of new non-essential elements
they must be adopted in accordance with the regulatory procedure
with scrutiny provided for in Article 5a of Decision 1999/468/EC.
The Commission should also be empowered to
adopt implementing measures granting to third countries the status
of equivalence with the provisions of this directive.
While these measures have to be in accordance with criteria
determined beforehand they still merit a certain level of control.
It is therefore appropriate that they are adopted under the
regulatory procedure.
(92) Since the objectives of the action
to be taken cannot be sufficiently achieved by the Member States and
can therefore, by reason of their scale and effects, be better
achieved at Community level, the Community may adopt measures, in
accordance with the principle of subsidiarity as set out in Article
5 of the Treaty.
-----------------------------------------------------------------------------------------------------------------------
[Note - Subsidiarity principle: Matters are
handled by the smallest, lowest or least centralized competent
authority]
[Note - They mean Article 5 of
the Treaty of Lisbon amending the Treaty on European Union and the
Treaty establishing the European Community
Article 5
Under the principle of subsidiarity, in areas which do not fall
within its exclusive competence, the Union shall act only if and
insofar as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level
or at regional and local level, but can rather, by reason of the
scale or effects of the proposed action, be better achieved at Union
level.
The institutions of the Union shall apply the
principle of subsidiarity as laid down in the Protocol on the
application of the principles of subsidiarity and proportionality.
National Parliaments shall ensure compliance with that
principle in accordance with the procedure set out in that
Protocol.]
Under the principle of
proportionality, the content and form of Union action shall not
exceed what is necessary to achieve the objectives of the Treaties.
The institutions of the Union shall apply the principle of
proportionality as laid down in the Protocol on the application of
the principles of subsidiarity and proportionality."
------------------------------------------------------------------------------------------------------------------------
In accordance with the principle of
proportionality, as set out in that Article, this Directive does not
go beyond what is necessary in order to achieve those objectives.
(93) The provisions of Council Directive 64/225/EEC of 25
February 1964 on the abolition of restrictions on freedom of
establishment and freedom to provide services in respect of
reinsurance and retrocession , Council Directive 73/240/EEC of 24
July 1973 abolishing restrictions on freedom of establishment in the
business of direct insurance other than life insurance , Council
Directive 76/580/EEC of 29 June 1976 amending Directive 73/239/EEC
on the coordination of laws, regulations and administrative
provisions relating to the taking up and pursuit of the business of
direct insurance other than life assurance and Council Directive
84/641/EEC of 10 December 1984 amending, particularly as regards
tourist assistance, the First Directive (73/239/EEC) on the
coordination of laws, regulations and administrative provisions
relating to the taking-up and pursuit of the business of direct
insurance other than life have become obsolete and should therefore
be repealed.
(94) The obligation to transpose this Directive
into national law should be confined to those provisions which
represent a substantive change as compared with the earlier
Directives.
The obligation to transpose
the provisions which are unchanged arises under the earlier
Directives.
(95) This Directive should be without prejudice
to the obligations of the Member States relating to the time-limits
for transposition into national law of the Directives set out in
Annex VI, Part B.
(95a) The Commission will review the
adequacy of existing guarantee schemes in the insurance sector and
make an appropriate legislative proposal.
(95b) Article 17(2)
of Directive 2003/41/EC of the European Parliament and of the
Council of 3 June 2003 on the activities and supervision of
institutions for occupational retirement provision refers to the
existing legislative provisions on solvency margins.
Those references should be retained in order to maintain the status
quo.
The Commission should conduct its
review of Directive 2003/41/EC under Article 21(4) thereof as
quickly as possible. The Commission, assisted by the CEIOPS, should
develop a proper system of solvency rules for pension provision,
whilst fully reflecting the essential distinctiveness of insurance
and, therefore, should not prejudge the application of the Solvency
II rules to be imposed upon them.
(95c) Adoption of this
Directive changes the risk profile of the insurance company
vis-à-vis the policy holder.
The
Commission should as soon as possible but no later than at the end
of 2010 come forward with a proposal for the revision of Directive
2002/92/EC of the European Parliament and of the Council of 9
December 2002 on insurance mediation taking into account the
consequences for policy holders of this Directive.
(95d)
Further wide-ranging reforms of the regulatory and supervisory model
of the EU financial sector are highly needed and should be put
forward swiftly by the European Commission with due consideration of
the conclusions presented by the group of experts chaired by Jacques
de Larosière of February 25th 2009.
The
Commission should propose legislation needed to tackle the
shortcomings identified regarding the provisions related to
supervisory coordination and cooperation arrangements.
(95e)
It is necessary to seek advice from the CEIOPS on how best to
address the issues of an enhanced group supervision and capital
management within a group of insurance or reinsurance undertakings.
The CEIOPS should be invited to provide
advice that will help the Commission to develop its proposals under
conditions that are consistent with high level of policyholder (and
beneficiary) protection and safeguarding of financial stability.
In that regard the CEIOPS should be invited to
advise the Commission on the structure and principles which could
guide potential future amendments to this Directive which may be
needed to give effect to the changes that may be proposed.
The Commission should submit a report followed
by appropriate proposals to the European Parliament and the Council
for alternative regimes for the prudential supervision of insurance
and reinsurance undertakings within groups which enhance the
efficient capital management within groups if it is satisfied that
an adequate supportive regulatory framework for the introduction of
such a regime is in place.
In particular,
it is desirable that a group support regime operates on sound
foundations based on the existence of harmonised and adequately
funded insurance guarantee schemes, harmonised and legally binding
framework between competent authorities, central banks and
ministries of finance concerning crisis management, resolution and
fiscal burden-sharing which aligns supervisory powers and fiscal
responsibilities, legally binding framework for the mediation of
supervisory disputes, harmonised framework on early intervention,
harmonised framework on asset transferability, insolvency and
winding up procedures which eliminates the relevant national company
or corporate law barriers to asset transferability.
In its report the Commission should also take into account the
behaviour of diversification effects over time and risk associated
with being part of a group, practices in centralised group risk
management, functioning of group internal models as well as
supervision of intra-group transactions and risk concentrations.
(95f) In accordance with point 34 of the Interinstitutional
agreement on better law-making , Member States are encouraged to
draw up, for themselves and in the interest of the Community, their
own tables illustrating, as far as possible, the correlation between
this Directive and the transposition measures, and to make them
public.
----------------------------------------------------------------------------------------------------------------------
[Note: When they mention the "point 34 of the
Interinstitutional agreement on better law-making" they mean the
REPORT on the conclusion of the interinstitutional agreement on
‘Better Law-Making’ between the European Parliament, the Council and
the Commission (2003/2131(ACI)) - Committee on Constitutional
Affairs
Better transposition and application
34. The
Commission will draw up annual reports on the transposition of
directives in the various Member States, with tables showing
transposition rates.
Those reports will be
communicated to the European Parliament and to the Council, and will
be made public.
The Council will encourage the Member States
to draw up, for themselves and in the interests of the Community,
their own tables which will, as far as possible, illustrate the
correlation between the directives and the transposition measures
and to make them public.
It calls on those
Member States which have not yet done so to appoint a transposition
coordinator as soon as possible
---------------------------------------------------------------------------------------------------------------------------------
 
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
|
