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.
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[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."
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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.
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[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
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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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