Directive 73/239/EEC is hereby amended as follows:
In Article 12a, paragraphs 1 and 2 shall be replaced by the following:
‘1.The competent authorities of the other Member State involved shall be consulted prior to the granting of an authorisation to a non-life insurance undertaking, which is:
a subsidiary of an insurance or reinsurance undertaking authorised in another Member State; or
a subsidiary of the parent undertaking of an insurance or reinsurance undertaking authorised in another Member State; or
controlled by the same person, whether natural or legal, who controls an insurance or reinsurance undertaking authorised in another Member State.
2.The competent authority of a Member State involved responsible for the supervision of credit institutions or investment firms shall be consulted prior to the granting of an authorisation to a non-life insurance undertaking which is:
a subsidiary of a credit institution or investment firm authorised in the Community; or
a subsidiary of the parent undertaking of a credit institution or investment firm authorised in the Community; or
controlled by the same person, whether natural or legal, who controls a credit institution or investment firm authorised in the Community.’
In Article 13(2), the following subparagraph shall be added:
‘The home Member State of the insurance undertaking shall not refuse a reinsurance contract concluded by the insurance undertaking with a reinsurance undertaking authorised in accordance with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance(1) or an insurance undertaking authorised in accordance with this Directive or Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance(2), on grounds directly related to the financial soundness of the reinsurance undertaking or the insurance undertaking.’
In Article 15, paragraphs 2 and 3 shall be replaced by the following:
‘2.The home Member State shall require every insurance undertaking to cover the technical provisions and the equalisation reserve referred to in Article 15a of this Directive by matching assets in accordance with Article 6 of Directive 88/357/EEC. In respect of risks situated within the Community, those assets must be localised within the Community. Member States shall not require insurance undertakings to localise their assets in any particular Member State. The home Member State may, however, allow the rules on the localisation of assets to be relaxed.
3.Member States shall not retain or introduce for the establishment of technical provisions a system of gross reserving which requires pledging of assets to cover unearned premiums and outstanding claims provisions by the reinsurer, when the reinsurer is a reinsurance undertaking authorised in accordance with Directive 2005/68/EC or an insurance undertaking authorised in accordance with this Directive or Directive 2002/83/EC.
When the home Member State allows any technical provisions to be covered by claims against a reinsurer which is neither a reinsurance undertaking authorised in accordance with Directive 2005/68/EC nor an insurance undertaking authorised in accordance with this Directive or Directive 2002/83/EC, it shall set the conditions for accepting such claims.’
Article 16(2) is hereby amended as follows:
point (b) of the first subparagraph shall be replaced by the following:
reserves (statutory and free reserves) which neither correspond to underwriting liabilities nor are classified as equalisation reserves;’;
the introductory wording and point (a) of the fourth subparagraph shall be replaced by the following:
‘The available solvency margin shall also be reduced by the following items:
participations which the insurance undertaking holds in:
insurance undertakings within the meaning of Article 6 of this Directive, Article 4 of Directive 2002/83/EC, or Article 1(b) of Directive 98/78/EC of the European Parliament and of the Council,
reinsurance undertakings within the meaning of Article 3 of Directive 2005/68/EC or non-member country reinsurance undertakings within the meaning of Article 1(l) of Directive 98/78/EC,
insurance holding companies within the meaning of Article 1(i) of Directive 98/78/EC,
credit institutions and financial institutions within the meaning of Article 1(1) and (5) of Directive 2000/12/EC of the European Parliament and of the Council,
investment firms and financial institutions within the meaning of Article 1(2) of Council Directive 93/22/EEC and of Article 2(4) and (7) of Council Directive 93/6/EEC’.
Article 16a is hereby amended as follows:
in paragraph 3, the seventh subparagraph shall be replaced by the following:
‘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 undertaking after deduction of amounts recoverable under reinsurance and the gross amount of claims; that ratio may in no case be less than 50 %. Upon application, with supporting evidence, by the insurance undertaking to the competent authority of the home Member State and with the agreement of that authority, amounts recoverable from special purpose vehicles referred to in Article 46 of Directive 2005/68/EC may be deducted as reinsurance.’;
in paragraph 4, the seventh subparagraph shall be replaced by the following:
‘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 undertaking after deduction of amounts recoverable under reinsurance and the gross amount of claims; that ratio may in no case be less than 50 %. Upon application, with supporting evidence, by the insurance undertaking to the competent authority of the home Member State and with the agreement of that authority, amounts recoverable from special purpose vehicles referred to in Article 46 of Directive 2005/68/EC may be deducted as reinsurance.’
The following Article shall be inserted:
1.Each Member State shall require that an insurance undertaking whose head office is situated within its territory and which conducts reinsurance activities establishes, in respect of its entire business, a minimum guarantee fund in accordance with Article 40 of Directive 2005/68/EC, where one of the following conditions is met:
(a)the reinsurance premiums collected exceed 10 % of its total premium;
(b)the reinsurance premiums collected exceed EUR 50 000 000;
(c)the technical provisions resulting from its reinsurance acceptances exceed 10 % of its total technical provisions.
2.Each Member State may choose to apply to such insurance undertakings as are referred to in paragraph 1 of this Article and whose head office is situated within its territory the provisions of Article 34 of Directive 2005/68/EC in respect of their reinsurance acceptance activities, where one of the conditions laid down in the said paragraph 1 is met.
In that case, the relevant Member State shall require that all assets employed by the insurance undertaking to cover the technical provisions corresponding to its reinsurance acceptances shall be ring-fenced, managed and organised separately from the direct insurance activities of the insurance undertaking, without any possibility of transfer. In such a case, and only as far as their reinsurance acceptance activities are concerned, insurance undertakings shall not be subject to Articles 20, 21 and 22 of Directive 92/49/EEC(3) and Annex I to Directive 88/357/EEC.
Each Member State shall ensure that their competent authorities verify the separation provided for in the second subparagraph.
3.If the Commission decides, pursuant to Article 56(c) of Directive 2005/68/EC to increase the amounts used for the calculation of the required solvency margin provided for in Article 37(3) and (4) of that Directive, each Member State shall apply to such insurance undertakings as are referred to in paragraph 1 of this Article the provisions of Articles 35 to 39 of that Directive in respect of their reinsurance acceptance activities.’
In Article 20a, paragraph 4 shall be replaced by the following:
‘4.Member States shall ensure that the competent authorities have the power to decrease the reduction, based on reinsurance, to the solvency margin as determined in accordance with Article 16a where:
the nature or quality of reinsurance contracts has changed significantly since the last financial year;
there is no, or a limited, risk transfer under the reinsurance contracts.’
OJ L 345, 19.12.2002, p. 1. Directive as last amended by Directive 2005/1/EC (OJ L 79, 24.3.2005, p. 9).’
Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) (OJ L 228, 11.8.1992, p. 1). Directive as last amended by Directive 2005/1/EC.’