REPORT on the proposal for a directive of the European Parliament and of the Council amending Directives 98/78/EC, 2002/87/EC and 2006/48/EC as regards the supplementary supervision of financial entities in a financial conglomerate

    28.3.2011 - (COM(2010)0433 – C7‑0203/2010 – 2010/0232(COD)) - ***I

    Committee on Economic and Monetary Affairs
    Rapporteur: Theodor Dumitru Stolojan


    Procedure : 2010/0232(COD)
    Document stages in plenary
    Document selected :  
    A7-0097/2011

    DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

    on the proposal for a directive of the European Parliament and of the Council amending Directives 98/78/EC, 2002/87/EC and 2006/48/EC as regards the supplementary supervision of financial entities in a financial conglomerate

    (COM(2010)0433 – C7‑0203/2010 – 2010/0232(COD))

    (Ordinary legislative procedure: first reading)

    The European Parliament,

    –   having regard to the Commission proposal to Parliament and the Council (COM(2010)0433),

    –   having regard to Article 294(2) and Article 53(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0203/2010),

    –   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

    –   having regard to the opinion of the European Central Bank of 28 January 2011[1],

    –   having regard to Rule 55 of its Rules of Procedure,

    –   having regard to the report of the Committee on Economic and Monetary Affairs and the opinion of the Committee on Legal Affairs (A7-0097/2011),

    1.  Adopts its position at first reading hereinafter set out;

    2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

    3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

    Amendment  1

    Proposal for a directive – amending act

    Title

    Text proposed by the Commission

    Amendment

    Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directives 98/78/EC, 2002/87/EC and 2006/48/EC as regards the supplementary supervision of financial entities in a financial conglomerate

    Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directives 98/78/EC, 2002/87/EC, 2006/48/EC and 2009/138/EC as regards the supplementary supervision of financial entities in a financial conglomerate

    Amendment  2

    Proposal for a directive – amending act

    Recital 2

    Text proposed by the Commission

    Amendment

    (2) It is appropriate to ensure consistency with the aim of Directive 2002/87/EC and Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 2000/12/EC1 of the European Parliament and of the Council, to enable supervision of insurance groups as well as appropriate supplementary supervision of insurance and other entities within a mixed financial holding structure. For this reason, Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance and reinsurance undertakings in an insurance or reinsurance group2 should be amended to define and include mixed financial holding companies. In order to ensure timely coherent supervision, Directive 98/78/EC should be amended, notwithstanding the imminent application of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (recast)3.

    (2) It is appropriate to ensure consistency between the aim of Directive 2002/87/EC of the European Parliament and of the Council, Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, and Directives 98/78/EC, 2004/39/EC1, 2006/48/EC2, 2006/49/EC3 and 2009/138/EC4 of the European Parliament and of the Council, in order to enable appropriate supplementary supervision of insurance and banking groups, including where they are part of a mixed financial holding structure.

    _____

    1 OJ L 35, 11.2.2003, p. 1.

    2 OJ L 330, 5.12.1998, p. 1.

    3 OJ L 335, 17.12.2009, p. 1.

    _____

    1 OJ L 145, 30.4.2004, p. 1.

    2 OJ L 177, 30.6.2006, p. 1.

    3 OJ L 177, 30.6.2006, p. 201.

    4 OJ L 335, 17.12.2009, p. 1.

    Amendment  3

    Proposal for a directive – amending act

    Recital 3

    Text proposed by the Commission

    Amendment

    (3) It is necessary that financial conglomerates are identified throughout the European Union according to the extent to which they are exposed to group risks, based on common guidelines issued by the European Banking Authority and the European Insurance and Occupational Pensions Authority in accordance with Article 42 of the Regulation (EU) No ../.. establishing a European Banking Authority and Article 42 of the Regulation (EU) No ../.. establishing a European Insurance and Occupational Pensions Authority, following cooperation within the Joint Committee of European Supervisory Authorities. It is also important that the requirements regarding the waiving of the application of supplementary supervision are applied in a risk-based manner according to these guidelines. This is of particular importance in the case of the larger, internationally operating conglomerates.

    (3) It is necessary that financial conglomerates are identified throughout the Union according to the extent to which they are exposed to group risks, based on common guidelines issued by the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council1 (EBA), the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council2 (EIOPA) and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council3 (ESMA) in accordance with Article 56 of Regulation (EU) No 1093/2010, Regulation (EU) No 1094/2010 and Regulation (EU) No 1095/2010, following cooperation within the Joint Committee of the European Supervisory Authorities (Joint Committee). It is also important that the requirements regarding the waiving of the application of supplementary supervision are applied in a risk-based manner according to these guidelines. This is of particular importance in the case of the larger, internationally operating conglomerates.

     

    ________

    1 OJ L 331, 15.12.2010, p. 12.

    2 OJ L 331, 15.12.2010, p. 48.

    3 OJ L 331, 15.12.2010, p. 84.

    Amendment  4

    Proposal for a directive

    Recital 4

    Text proposed by the Commission

    Amendment

    (4) The comprehensive and adequate monitoring of group risks in large, complex, internationally operating conglomerates, as well as the supervision of the group-wide capital policies of these groups, is only possible when competent authorities gather supervisory information and plan supervisory measures beyond the national scope of their mandate. It is therefore necessary that competent authorities coordinate supplementary supervision on international conglomerates among the competent authorities which are regarded as most relevant for the supplementary supervision of a conglomerate. The college of a financial conglomerate's relevant competent authorities should reflect the supplementary nature of this Directive, and as such it should add value to existing colleges for the banking subgroup and the insurance subgroup in the conglomerate, without replicating, duplicating or replacing them.

    (4) The comprehensive and adequate monitoring of group risks in large, complex, internationally operating conglomerates, as well as the supervision of the group-wide capital policies of these groups, is only possible when competent authorities gather supervisory information and plan supervisory measures beyond the national scope of their mandate. It is therefore necessary that competent authorities coordinate supplementary supervision on international conglomerates among the competent authorities which are regarded as most relevant for the supplementary supervision of a conglomerate through the Joint Committee. The college of a financial conglomerate's relevant competent authorities should reflect the supplementary nature of this Directive, and as such it should add value to existing colleges for the banking subgroup and the insurance subgroup in the conglomerate, without replicating, duplicating or replacing them.

    Amendment  5

    Proposal for a directive

    Recital 4 a (new)

    Text proposed by the Commission

    Amendment

     

    (4a) In order to ensure appropriate regulatory oversight, it is necessary that the legal and operational structure, including all legal entities, of banks, insurers and financial conglomerates with cross-border activities are monitored by EBA, EIOPA, and the Joint Committee, as appropriate, and that information is made available to the relevant competent authorities, the Commission and the European Systemic Risk Board (ESRB) and, where appropriate, made public.

    Justification

    Builds upon Rapporteur's amendment to track the legal and operational structure of conglomerates, expanding it to all cross-border insurers and banks.

    Amendment  6

    Proposal for a directive – amending act

    Recital 5

    Text proposed by the Commission

    Amendment

    (5) The supplementary supervision of large, complex, internationally operating conglomerates requires coordination throughout the European Union, in order to contribute to the stability of the internal market for financial services. To this end, competent authorities need to agree upon the supervisory approaches applied to these conglomerates. The European Banking Authority and the European Insurance and Occupational Pensions Authority should issue, in accordance with Article 42 of the Regulation (EU) No ../.. establishing a European Banking Authority and Article 42 of the Regulation (EU) No ../.. establishing a European Insurance and Occupational Pensions Authority, following cooperation within the Joint Committee of European Supervisory Authorities, common guidelines for these common approaches, thus ensuring a comprehensive prudential framework of the supervisory tools and powers available in the banking, insurance and financial conglomerates directives. The guidelines which will be issued as provided for in this Directive must reflect the supplementary nature of this Directive, and complement the sector-specific supervision as provided for by Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC, 93/22/EEC, 98/78/EC, 2000/12/EC, 2004/39/EC, 2006/48/EC, 2006/49/EC and 2009/138/EC.

    (5) The supplementary supervision of large, complex, internationally operating conglomerates requires coordination throughout the Union, in order to contribute to the stability of the internal market for financial services. To this end, competent authorities need to agree upon the supervisory approaches applied to these conglomerates. EBA, EIOPA and ESMA (the ESAs) should issue, in accordance with Article 56 of Regulation (EU) No 1093/2010, Regulation (EU) No 1094/2010 and Regulation (EU) No1095/2010, following cooperation within the Joint Committee, common guidelines for these common approaches, thus ensuring a comprehensive prudential framework of the supervisory tools and powers available in the banking, insurance, securities and financial conglomerates directives. The guidelines which will be issued as provided for in this Directive must reflect the supplementary nature of this Directive, and complement the sector-specific supervision as provided for by Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 98/78/EC, 2004/39/EC, 2006/48/EC, 2006/49/EC and 2009/138/EC.

    Amendment  7

    Proposal for a directive – amending act

    Recital 6

    Text proposed by the Commission

    Amendment

    (6) There is a genuine need to monitor and control potential group risks, posed to the conglomerate, coming from participations in other companies. For those cases where the specific supervisory powers provided by this Directive appear to be insufficient, the supervisory community should develop alternative methods to address and appropriately take into account these risks, preferably by work conducted by the European Banking Authority and the European Insurance and Occupational Pensions Authority in the forum of the Joint Committee of the European Supervisory Authorities. If a participation is the only element of identification of a financial conglomerate, supervisors should be allowed to assess whether the group is exposed to group risks and waive the group from supplementary supervision, if appropriate.

    (6) There is a genuine need to monitor and control potential group risks, posed to the conglomerate, coming from participations in other companies. For those cases where the specific supervisory powers provided by this Directive appear to be insufficient, the supervisory community should develop alternative methods to address and appropriately take into account these risks, preferably by work conducted by the ESAs in the forum of the Joint Committee. If a participation is the only element of identification of a financial conglomerate, supervisors should be allowed to assess whether the group is exposed to group risks and waive the group from supplementary supervision, if appropriate.

    Amendment  8

    Proposal for a directive – amending act

    Recital 7

    Text proposed by the Commission

    Amendment

    (7) With regard to certain group structures, supervisors were left without powers in the current crisis since the combination of directives had forced them to choose either sector-specific or supplementary supervision. While a complete review of the Directive should be undertaken in the context of the G20 work on conglomerates, the necessary supervisory powers should be restored as soon as possible.

    (7) With regard to certain group structures, supervisors were left without powers in the current crisis since the combination of directives had forced them to choose either sector-specific or supplementary supervision. While a complete review of the Directive should be undertaken in the context of the G20 work on conglomerates, the necessary supervisory powers should be provided as soon as possible.

    Amendment  9

    Proposal for a directive – amending act

    Recital 7 a (new)

    Text proposed by the Commission

    Amendment

     

    (7a) It is appropriate to ensure consistency between the aims of Directive 2002/87/EC and Directive 98/78/EC. Directive 98/78/EC should therefore be amended to define and include mixed financial holding companies. In order to ensure timely coherent supervision, Directive 98/78/EC should be amended, notwithstanding the imminent application of Directive 2009/138/EC, which should be amended to the same effect.

    Amendment  10

    Proposal for a directive

    Recital 7 b (new)

    Text proposed by the Commission

    Amendment

     

    (7b) It is necessary that, in the context of Union-wide stress tests initiated by the ESAs, specific parameters for the testing of financial conglomerates are developed by the Joint Committee. In particular, stress tests should take account of liquidity and solvency risks of the conglomerates and should cover not only assets in their available-for-sale (AFS) books, but also assets held-to-maturity.

    Amendment  11

    Proposal for a directive – amending act

    Recital 7 c (new)

    Text proposed by the Commission

    Amendment

     

    (7c) The Commission should further develop a coherent and conclusive system of supervision of financial conglomerates. The upcoming complete review of Directive 2002/87/EC should cover non-regulated entities, in particular special purpose vehicles, and should diminish the waivers available to supervisors in determining what is a financial conglomerate. The review should also include the impact on financial stability of systemically relevant financial conglomerates and providing the right incentives, as some of these may be considered "too big to fail" or "too big to supervise". Regulatory action should be considered.

    Amendment  12

    Proposal for a directive – amending act

    Recital 10

    Text proposed by the Commission

    Amendment

    (10) Directives 98/78/EC, 2002/87/EC and 2006/48/EC should therefore be amended accordingly,

    (10) Directives 98/78/EC, 2002/87/EC, 2006/48/EC and 2009/138/EC should therefore be amended accordingly,

    Amendment  13

    Proposal for a directive – amending act

    Article 1 – point -1 (new)

    Directive 98/78/EC

    Article 1 – point j

     

    Text proposed by the Commission

    Amendment

     

    (-1) Article 1(j) is replaced by the following:

     

    "(j) mixed-activity insurance holding company means a parent undertaking, other than an insurance undertaking, a non-member country insurance undertaking, a reinsurance undertaking, a non-member country reinsurance undertaking, an insurance holding company or a mixed financial holding company [...], which includes at least one insurance undertaking or a reinsurance undertaking among its subsidiary undertakings;"

    Amendment  14

    Proposal for a directive – amending act

    Article 1 – point 2 a (new)

    Directive 98/78/EC

    Article 2 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (2a) The following Article is inserted:

     

    "Article 2a

     

    Level of application with regard to mixed financial holding companies

     

    1. Where a mixed financial holding company is subject to equivalent provisions under this Directive and under Directive 2002/87/EC, in particular in terms of consolidated capital adequacy requirements or risk-based supervision, the competent authority for exercising supplementary supervision may, after consulting the other competent authorities concerned, apply only the provision of Directive 2002/87/EC to that mixed financial holding company.

     

    2. Where a mixed financial holding company is subject to equivalent provisions under this Directive and under Directive 2006/48/EC, in particular in terms of consolidated capital adequacy requirements or risk-based supervision, the competent authority for exercising supplementary supervision may, in agreement with the consolidating supervisor in the banking and investment services sector, apply only the provision of the Directive relating to the most significant sector as defined in Article 3(2) of Directive 2002/87/EC.

     

    3. The competent authority for exercising supplementary supervision shall inform the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council1 (EBA), and the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council2 (EIOPA) of the decisions taken under paragraphs 1 and 2. EBA, EIOPA and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council3 shall, through the Joint Committee of the European Supervisory Authorities (Joint Committee), develop guidelines aimed at converging supervisory practices and shall, within three years of the adoption of the guidelines, develop draft regulatory technical standards.

     

    Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and Regulation (EU) No 1095/2010.

     

    _________

    1 OJ L 331, 15.12.2010, p. 12.

    2 OJ L 331, 15.12.2010, p. 48.

    3 OJ L 331, 15.12.2010, p. 84.

    Amendment  15

    Proposal for a directive – amending act

    Article 1 – point 5

    Directive 98/78/EC

    Article 10

     

    Text proposed by the Commission

    Amendment

    (5) Article 10(2) is replaced by the following:

    (5) Article 10 is replaced by the following:

     

    "Article 10

     

    Insurance holding companies, mixed financial holding companies, non-member country insurance undertakings and non-member country reinsurance undertakings

     

    1. In the case referred to in Article 2(2), Member States shall require the method of supplementary supervision to be applied in accordance with Annex II.

    2. In the case referred to in Article 2(2), the calculation shall include all related undertakings of the insurance holding company, the mixed financial holding company, the non-member-country insurance undertaking or the non-member country reinsurance undertaking, in the manner provided for in Annex II.

    2. In the case referred to in Article 2(2), the calculation shall include all related undertakings of the insurance holding company, the mixed financial holding company, the non-member country insurance undertaking or the non-member country reinsurance undertaking, in the manner provided for in Annex II.

     

    3. If, on the basis of that calculation, the competent authorities conclude that the solvency of a subsidiary insurance undertaking or a reinsurance undertaking of the insurance holding company, the mixed financial holding company, the non-member country insurance undertaking or the non-member country reinsurance undertaking is, or may be, jeopardised, they shall take appropriate measures at the level of that insurance undertaking or reinsurance undertaking."

    Amendment  16

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 1 – paragraph 1

     

    Text proposed by the Commission

    Amendment

    This Directive lays down rules for supplementary supervision of regulated entities which have obtained an authorisation in accordance with Article 6 of Directive 73/239/EEC, Article 6 of Directive 79/267/EEC, Article 5 of Directive 2004/39/EC of the European Parliament and of the Council, Article 6 of Directive 2006/48/EC of the European Parliament and of the Council or Article 14 of Directive 2009/138/EC of the European Parliament and of the Council and which are part of a financial conglomerate.

    This Directive lays down rules for supplementary supervision of regulated entities which have obtained an authorisation in accordance with Article 6 of Directive 73/239/EEC, Article 6 of Directive 79/267/EEC, Article 5 of Directive 2004/39/EC of the European Parliament and of the Council, Article 3 of Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance1, Article 6 of Directive 2006/48/EC of the European Parliament and of the Council or Article 14 of Directive 2009/138/EC of the European Parliament and of the Council and which are part of a financial conglomerate.

     

    _____

    1 OJ L 323, 9.12.2005, p. 1.

    Amendment  17

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 1

     

    Text proposed by the Commission

    Amendment

    (1) ‘credit institution’ means a credit institution within the meaning of Article 4(1) of Directive 2006/48/EC;

    (1) ‘credit institution’ means a credit institution within the meaning of Article 4(1) of Directive 2006/48/EC or an undertaking the registered office of which is in a third country and which would require authorisation under that Directive if its registered office were in the Union;

    Amendment  18

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 2

     

    Text proposed by the Commission

    Amendment

    (2) ‘insurance undertaking means an insurance undertaking within the meaning of Article 13(1) and (2) of Directive 2009/138/EC;

    (2) ‘insurance undertaking means an insurance undertaking within the meaning of Article 13(1), (2) and (3) of Directive 2009/138/EC;

    Amendment  19

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 3

     

    Text proposed by the Commission

    Amendment

    (3) ‘investment firm’ means an investment firm within the meaning of Article 4(1) (1) of Directive 2004/39/EC, including the undertakings referred to in Article 3(1)(d) of Directive 2006/49/EC;

    (3) ‘investment firm’ means an investment firm within the meaning of Article 4(1) (1) of Directive 2004/39/EC, including the undertakings referred to in Article 3(1)(d) of Directive 2006/49/EC or an undertaking the registered office of which is in a third country and which would require authorisation under that Directive if its registered office were in the Union;

    Amendment  20

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 5

     

    Text proposed by the Commission

    Amendment

    (5) ‘asset management company’ means a management company within the meaning of Article 2(1)(b) of Directive 2009/65/EC, as well as an undertaking the registered office of which is outside the European Union and which would require authorisation if it had its registered office within the European Union;

    (5) ‘asset management company’ means a management company within the meaning of Article 2(1)(b) of Directive 2009/65/EC, as well as an undertaking the registered office of which is in a third country and which would require authorisation under that Directive if its registered office were within the Union;

    Amendment  21

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 5 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (5a) ‘alternative investment fund manager’ means a manager of alternative investment funds within the meaning of Article 4(1)(b)(l) and (ab) of Directive 2011/.../EU of the European Parliament and of the Council1;

     

    _____

    1 OJ L...

    Amendment  22

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 6

     

    Text proposed by the Commission

    Amendment

    (6) ‘reinsurance undertaking’ means a reinsurance undertaking within the meaning of Article 13(4) and (5) of Directive 2009/138/EC;

    (6) ‘reinsurance undertaking’ means a reinsurance undertaking within the meaning of Article 13(4), (5), (6) and (26) of Directive 2009/138/EC;

    Amendment  23

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 8 – point a

     

    Text proposed by the Commission

    Amendment

    (a) a credit institution, a financial institution or an ancillary services undertaking within the meaning of Article 4(1), (5) and (21) of Directive 2006/48/EC;

    (a) a credit institution, a financial institution or an ancillary services undertaking within the meaning of Article 4(1), (5) and (21) of Directive 2006/48/EC (hereinafter referred to collectively as "the banking sector");

    Amendment  24

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 8 – point b

     

    Text proposed by the Commission

    Amendment

    (b) an insurance undertaking, a reinsurance undertaking or an insurance holding company within the meaning of Articles 13(1) and (2), 13(4) and (5) and 212(1)(f) of Directive 2009/138/EC;

    (b) an insurance undertaking, a reinsurance undertaking or an insurance holding company within the meaning of Articles 13(1) and (2), 13(4) and (5) and 212(1)(f) of Directive 2009/138/EC (hereinafter referred to collectively as "the insurance sector");

    Amendment  25

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 8 – point c

     

    Text proposed by the Commission

    Amendment

    (c) an investment firm within the meaning of Article 3(1)(b) of Directive 2006/49/EC;

    (c) an investment firm within the meaning of Article 3(1)(b) of Directive 2006/49/EC (hereinafter referred to collectively as "the investment services sector");

    Amendment  26

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 15

     

    Text proposed by the Commission

    Amendment

    (15) ‘mixed financial holding company’ means a parent undertaking, other than a regulated entity, which together with its subsidiaries, at least one of which is a regulated entity which has its head office in the European Union, and other entities, constitutes a financial conglomerate;

    (15) ‘mixed financial holding company’ means a parent undertaking, other than a regulated entity, which together with its subsidiaries, at least one of which is a regulated entity which has its head office in the Union, and other entities, constitutes a financial conglomerate;

    Amendment  27

    Proposal for a directive – amending act

    Article 2 – point 1

    Directive 2002/87/EC

    Article 2 – point 17 – point a a (new)

     

    Text proposed by the Commission

    Amendment

     

    (aa) the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council1 (EBA), the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council2 (EIOPA), or the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council3 (ESMA), , to be decided by the Joint Committee of the European Supervisory Authorities (Joint Committee), and acting through the Joint Committee;

     

    _________

    1 OJ L 331, 15.12.2010, p. 12.

    2 OJ L 331, 15.12.2010, p. 48.

    3 OJ L 331, 15.12.2010, p. 84.

    Justification

    The Joint Committee has no legal personality on the basis of the ESA regulations and therefore cannot be a 'competent authority'. Instead this task should fall to either EIOPA or EBA. Since in an emergency situation or disputes between supervisors the ESAs will be able to take decisions addressed to individual firms it is important to define which of these two is the competent authority for an individual financial conglomerate. (The Joint Committee is legally unable to make a Decision according to the ESA legislation). This should be done on the basis of the relative size of the banking or insurance component of the financial conglomerate. In all cases the competent ESA should operate through the Joint Committee to ensure consistency of action and communication with the other ESAs.

    Amendment  28

    Proposal for a directive – amending act

    Article 2 – point 2 – point -a (new)

    Directive 2002/87/EC

    Article 3 – paragraph 1

     

    Text proposed by the Commission

    Amendment

     

    (-a) Paragraph 1 is replaced by the following:

     

    "1. [...] The activities of a group shall be deemed mainly to occur in the financial sector within the meaning of Article 2(14)(c) where either:

    (a) the ratio of the balance sheet total of the regulated and non-regulated financial sector entities in the group to the balance sheet total of the group as a whole exceeds 40 %; or

    (b) EBA, EIOPA and ESMA (the ESAs), through the Joint Committee, decide that the total activities in the banking sector, insurance sector and investment services sector is materially relevant."

    Justification

    Some of the big conglomerates may have large financial sections but which are less than 40%.

    Amendment  29

    Proposal for a directive – amending act

    Article 2 – point 2 – point a

    Directive 2002/87/EC

    Article 3 – paragraph 2 – subparagraph 3

     

    Text proposed by the Commission

    Amendment

    Asset management companies within the meaning of Article 30 are added to the sector they belong to within the group; if they do not belong exclusively to one sector within the group, they are added to the smallest financial sector.

    Asset management companies within the meaning of Article 30 shall be added to the investment services sector, unless they provide a greater proportion of their services to another sector within the group, in which case they shall be added to that financial sector.

    Amendment  30

    Proposal for a directive – amending act

    Article 2 – point 2 – point a

    Directive 2002/87/EC

    Article 3 – paragraph 2 – subparagraph 3 a (new)

     

    Text proposed by the Commission

    Amendment

     

    Alternative investment fund managers within the meaning of Article 30a shall be added to the investment services sector; unless they provide a greater proportion of their services to another sector within the group, in which case they shall be added to that financial sector.

    Amendment  31

    Proposal for a directive – amending act

    Article 2 – point 2 – point b

    Directive 2002/87/EC

    Article 3 – paragraph 3 – subparagraph 3

     

    Text proposed by the Commission

    Amendment

    Decisions taken in accordance with this paragraph shall be notified to the other competent authorities concerned.

    Decisions taken in accordance with this paragraph shall be notified to the other competent authorities and shall be made public by the competent authorities. Such decisions shall not be made public in exceptional circumstances.

    Amendment  32

    Proposal for a directive – amending act

    Article 2 – point 2 – point c

    Directive 2002/87/EC

    Article 3 – paragraph 3a – subparagraph 2

     

    Text proposed by the Commission

    Amendment

    Decisions taken in accordance with this paragraph shall be notified to the other competent authorities concerned.

    Decisions taken in accordance with this paragraph shall be notified to the other competent authorities and shall be made public by the competent authorities. Such decisions shall not be made public in exceptional circumstances.

    Amendment  33

    Proposal for a directive – amending act

    Article 2 – point 2 – point d

    Directive 2002/87/EC

    Article 3 – paragraph 4 – point c

     

    Text proposed by the Commission

    Amendment

    (c) exclude a minority participation in the smaller sector if such participation is the only element for the identification of a financial conglomerate.

    (c) exclude one or more participations in the smaller sector if such participations are decisive for the identification of a financial conglomerate, and are collectively of negligible interest with respect to the objectives of supplementary supervision.

    Amendment  34

    Proposal for a directive – amending act

    Article 2 – point 2 – point e

    Directive 2002/87/EC

    Article 3 – paragraph 5

     

    Text proposed by the Commission

    Amendment

    5. For the application of paragraphs 1 and 2, the relevant competent authorities may, in exceptional cases and by common agreement, replace the criterion based on balance sheet total with one or more of the following parameters or add one or more of these parameters, if they are of the opinion that these parameters are of particular relevance for the purpose of supplementary supervision under this Directive: income structure, off-balance sheet activities, assets under management.

    5. For the application of paragraphs 1 and 2, the relevant competent authorities may, in exceptional cases and by common agreement, replace the criterion based on balance sheet total with one or more of the following parameters or add one or more of these parameters, if they are of the opinion that these parameters are of particular relevance for the purpose of supplementary supervision under this Directive: income structure, off-balance sheet activities, total assets under management.

    Amendment  35

    Proposal for a directive – amending act

    Article 2 – point 2 – point f

    Directive 2002/87/EC

    Article 3 – paragraph 8

     

    Text proposed by the Commission

    Amendment

    8. The European Banking Authority and the European Insurance and Occupational Pensions Authority shall issue common guidelines aimed at the convergence of supervisory practices with regard to the application of paragraphs 2, 3, 3a, 4 and 5 of this Article.

    8. The ESAs, through the Joint Committee, shall issue common guidelines aimed at the convergence of supervisory practices with regard to the application of paragraphs 2, 3, 3a, 4 and 5 of this Article.

    Amendment  36

    Proposal for a directive – amending act

    Article 2 – point 2 – point f

    Directive 2002/87/EC

    Article 3 – paragraph 8 a (new)

     

    Text proposed by the Commission

    Amendment

     

    8a. The competent authorities shall, on an annual basis, reassess waivers of the application of supplementary supervision and shall review the quantitative indicators set out in this Article and risk-based assessments applied to financial groups.

    Amendment  37

    Proposal for a directive – amending act

    Article 2 – point 2 a (new)

    Directive 2002/87/EC

    Article 4 – paragraph 1 – subparagraph 2 and paragraph 3

     

    Text proposed by the Commission

    Amendment

     

    (2a) Article 4 is amended as follows:

     

    (a) in paragraph 1, the second subparagraph is replaced by the following:

     

    "For this purpose:

     

    – competent authorities which have authorised regulated entities in the group shall [...] cooperate closely,

     

    – if a competent authority is of the opinion that a regulated entity authorised by that competent authority is a member of a group which may be a financial conglomerate, which has not already been identified according to this Directive, the competent authority shall communicate its view to the other competent authorities concerned and the Joint Committee."

     

    (b) paragraph 3 is replaced by the following:

     

    "3. The Joint Committee shall publish on its website and keep up-to-date the list of [...] financial conglomerates defined in accordance with Article 2. That information shall be available by hyperlink on each of the ESAs’ websites.

     

    The name of each regulated entity referred to in Article 1 which is part of a financial conglomerate shall be entered in a list, which the Joint Committee shall publish on its website and keep up to date. The Joint Committee shall also establish and regularly update a database with details on the legal and operational structure of all financial conglomerates, including all legal entities established by the financial conglomerate, to be made available to relevant competent authorities, the European Systemic Risk Board and to be published on the Joint Committee’s website."

    Amendment  38

    Proposal for a directive – amending act

    Article 2 – point 2 b (new)

    Directive 2002/87/EC

    Article 5 – paragraph 2 – point b

     

    Text proposed by the Commission

    Amendment

     

    (2b) In Article 5(2), point (b) is replaced by the following:

     

    "(b) every regulated entity, the parent undertaking of which is a mixed financial holding company which has its head office in the Union;"

    Amendment  39

    Proposal for a directive – amending act

    Article 2 – point 2 c (new)

    Directive 2002/87/EC

    Article 5 – paragraph 3

     

    Text proposed by the Commission

    Amendment

     

    (2c) In Article 5, paragraph 3 is replaced by the following:

     

    "3. Every regulated entity which is not subject to supplementary supervision in accordance with paragraph 2, the parent undertaking of which is a regulated entity or a mixed financial holding company, having its head office outside the Union, shall be subject to supplementary supervision at the level of the financial conglomerate to the extent and in the manner prescribed in Article 18."

    Amendment  40

    Proposal for a directive – amending act

    Article 2 – point 2 d (new)

    Directive 2002/87/EC

    Article 5 – paragraph 5 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (2d) In Article 5, the following paragraph is added:

     

    "5a. The ESAs, through the Joint Committee, shall issue common guidelines aimed at developing supervisory practices allowing for supplementary supervision of financial holding companies to appropriately complement the group supervision under Directive 98/78/EC or, as appropriate, consolidated supervision under Directive 2006/48/EC. Those guidelines shall allow all relevant risks to be incorporated in the supervision, while eliminating potential overlaps and preserving a level playing field."

    Justification

    Efficient supervisory practices should be developed to allow parallel application of sectoral consolidated/group supervision and supplementary supervision in relation to a mixed financial holding company. The relevant ESA, acting through the Joint Committee, should be given powers to adopt common guidelines in this respect.

    Amendment  41

    Proposal for a directive – amending act

    Article 2 – point 3 a (new)

    Directive 2002/87/EC

    Article 6 – paragraph 5 – point a

     

    Text proposed by the Commission

    Amendment

     

    (3a) In Article 6(5), point (a) is replaced by the following:

     

    "(a) if the entity is situated in a third country where there are legal impediments to the transfer of the necessary information, without prejudice to the sectoral rules regarding the obligation of competent authorities to refuse authorisation where the effective exercise of their supervisory functions is prevented, unless the entity moved from a Member State to the third country and there is evidence that the entity changed its location in order to avoid regulation."

    Amendment  42

    Proposal for a directive – amending act

    Article 2 – point 3 b (new)

    Directive 2002/87/EC

    Article 7 – paragraph 3

     

    Text proposed by the Commission

    Amendment

     

    (3b) In Article 7, paragraph 3 is replaced by the following:

     

    "3. Pending further coordination of Union legislation, Member States may set quantitative limits or allow their competent authorities to set quantitative limits, or take other supervisory measures which would achieve the objectives of supplementary supervision, with regard to any risk concentration at the level of a financial conglomerate."

    Amendment  43

    Proposal for a directive – amending act

    Article 2 – point 4

    Directive 2002/87/EC

    Article 7 – paragraph 5

     

    Text proposed by the Commission

    Amendment

    5. The European Banking Authority and the European Insurance and Occupational Pensions Authority shall issue common guidelines aimed at the convergence of supervisory practices with regard to the application of supplementary supervision of risk concentration as provided for in paragraphs 1 to 4. They shall issue specific common guidelines on the application of paragraphs 1 to 4 to participations of the financial conglomerate in cases where national company law provisions obstruct the application of Article 14(2).

    5. The ESAs shall, through the Joint Committee, issue common guidelines aimed at the convergence of supervisory practices with regard to the application of supplementary supervision of risk concentration as provided for in paragraphs 1 to 4. They shall issue specific common guidelines on the application of paragraphs 1 to 4 to participations of the financial conglomerate in cases where national company law provisions obstruct the application of Article 14(2).

    Amendment  44

    Proposal for a directive – amending act

    Article 2 – point 4 a (new)

    Directive 2002/87/EC

    Article 8 – paragraph 3

     

    Text proposed by the Commission

    Amendment

     

    (4a) In Article 8, paragraph 3 is replaced by the following:

     

    "3. Pending further coordination of Union legislation, Member States may set quantitative limits and qualitative requirements or allow their competent authorities to set quantitative limits and qualitative requirements, or take other supervisory measures that would achieve the objectives of supplementary supervision, with regard to intra-group transactions of regulated entities within a financial conglomerate."

    Amendment  45

    Proposal for a directive – amending act

    Article 2 – point 5

    Directive 2002/87/EC

    Article 8 – paragraph 5

     

    Text proposed by the Commission

    Amendment

    5. The European Banking Authority and the European Insurance and Occupational Pensions Authority shall issue common guidelines aimed at the convergence of supervisory practices with regard to the application of supplementary supervision of intra-group transactions as provided for in paragraphs 1 to 4.. They shall issue specific common guidelines on the application of paragraphs 1 to 4 to participations of the financial conglomerate in cases where national company law provisions obstruct the application of Article 14(2).

    5. The ESAs shall, through the Joint Committee, issue common guidelines aimed at the convergence of supervisory practices with regard to the application of supplementary supervision of intra-group transactions as provided for in paragraphs 1 to 4. They shall issue specific common guidelines on the application of paragraphs 1 to 4 to participations of the financial conglomerate in cases where national company law provisions obstruct the application of Article 14(2).

    Amendment  46

    Proposal for a directive – amending act

    Article 2 – point 6

    Directive 2002/87/EC

    Article 9 – paragraph 6

     

    Text proposed by the Commission

    Amendment

    6. Competent authorities shall align the application of the supplementary supervision of internal control mechanisms and risk management processes as provided for in this Article with the supervisory review processes as provided for by Article 124 of Directive 2006/48/EC and Article 36 of Directive 2009/138/EC. To this end, the European Banking Authority and the European Insurance and Occupational Pensions Authority shall issue common guidelines aimed at the convergence of supervisory practices with regard to the application of supplementary supervision of internal control mechanisms and risk management processes as provided for in this Article, as well as on the consistency with the supervisory review processes as provided for by Article 124 of Directive 2006/48/EC and Article 36 of Directive 2009/138/EC. They shall issue specific common guidelines for the application of this Article to participations of the financial conglomerate, in cases where national company law provisions obstruct the application of Article 14(2).

    6. Competent authorities shall align the application of the supplementary supervision of internal control mechanisms and risk management processes as provided for in this Article with the supervisory review processes as provided for by Article 124 of Directive 2006/48/EC and Article 36 of Directive 2009/138/EC. To this end, the ESAs shall, through the Joint Committee, issue common guidelines aimed at the convergence of supervisory practices with regard to the application of supplementary supervision of internal control mechanisms and risk management processes as provided for in this Article, as well as on the consistency with the supervisory review processes as provided for by Article 124 of Directive 2006/48/EC and Article 36 of Directive 2009/138/EC. They shall issue specific common guidelines for the application of this Article to participations of the financial conglomerate, in cases where national company law provisions obstruct the application of Article 14(2).

    Amendment  47

    Proposal for a directive – amending act

    Article 2 – point 6 a (new)

    Directive 2002/87/EC

    Article 9a a (new)

     

    Text proposed by the Commission

    Amendment

     

    (6a) The following Article in inserted:

     

    "Article 9aa

     

    Stress testing

     

    1. The coordinator shall ensure appropriate and regular stress testing of financial conglomerates. Relevant competent authorities shall cooperate fully with the coordinator.

    2. Within the context of Union-wide stress tests initiated by the ESAs in accordance with Regulation (EU) No 1093/2010, Regulation (EU) No 1094/2010 and Regulation (EU) No 1095/2010, the Joint Committee shall, in cooperation with the ESAs, the ESRB and the relevant competent authorities, develop parameters for the stress testing of financial conglomerates that capture the specific risks associated with them. The results of the stress test shall be communicated to the Joint Committee, which shall publish the results on its website and in coordination with the coordinator."

    Justification

    While stress testing should occur, it is the role of the home supervisor to decide the appropriateness, parameters and timing of a stress test for a financial conglomerate. Mandating an annual stress test does not seem appropriate: in some cases a more regular stress test may be necessary, or the opposite. Nor does it seem appropriate that the Joint Committee should provide the parameters for testing. Parameters should also take into account local considerations and the home supervisor's own objectives. The role of the Joint Committee should be to ensure that such stress testing occurs in a consistent manner - where appropriate - through sharing best practice, and to ensure that stress testing at a European level of financial conglomerates is coordinated with Europe-wide stress testing of banks or insurers that may be undertaken by EBA and EIOPA, respectively. Furthermore, the Joint Committee should not be mandated to publish all results of stress tests on its website. Publishing of the results should be a matter of judgement taken on a case-by-case basis, based on market requirements and conditions.

    Amendment  48

    Proposal for a directive – amending act

    Article 2 – point 6 b (new)

    Directive 2002/87/EC

    Article 10 – paragraph 2 – point b – points ii and iii

     

    Text proposed by the Commission

    Amendment

     

    (6b) Article 10(2)(b) is amended as follows:

     

    (a) in point (ii), the first paragraph is replaced by the following:

     

    "(ii) where more than one regulated entity with a head office in the Union have as their parent the same mixed financial holding company, and one of those entities has been authorised in the Member State in which the mixed financial holding company has its head office, the task of coordinator shall be exercised by the competent authority of the regulated entity authorised in that Member State."

     

    (b) point (iii) is replaced by the following:

     

    "(iii) where more than one regulated entity with a head office in the Union have as their parent the same mixed financial holding company and none of those entities has been authorised in the Member State in which the mixed financial holding company has its head office, the task of coordinator shall be exercised by the competent authority which authorised the regulated entity with the largest balance sheet total in the most important financial sector;"

    Amendment  49

    Proposal for a directive – amending act

    Article 2 – point 6 c (new)

    Directive 2002/87/EC

    Article 11 – paragraph 3

     

    Text proposed by the Commission

    Amendment

     

    (6c) In Article 11, paragraph 3 is replaced by the following:

     

    "3. Without prejudice to the possibility of delegating specific supervisory competences and responsibilities as provided for by Union legislation, the presence of a coordinator entrusted with specific tasks concerning the supplementary supervision of regulated entities in a financial conglomerate shall not affect the tasks and responsibilities of the competent authorities as provided for by the sectoral rules."

    Amendment  50

    Proposal for a directive – amending act

    Article 2 – point 7

    Directive 2002/87/EC

    Article 11 – paragraph 4 – subparagraph 1

     

    Text proposed by the Commission

    Amendment

    4. The coordinator shall establish a college of the relevant competent authorities to facilitate the required cooperation under this section and the exercise of the tasks listed in paragraphs 1, 2 and 3 and Article 12 and, subject to the confidentiality requirements and compatibility with Union legislation, ensure appropriate coordination and cooperation with relevant third-country competent authorities where appropriate.

    4. The coordinator shall facilitate the required cooperation under this section through the relevant sectoral college of supervisors and the exercise of the tasks listed in paragraphs 1, 2 and 3 and Article 12 and, subject to the confidentiality requirements and compatibility with Union legislation, ensure appropriate coordination and cooperation with relevant third-country competent authorities where appropriate.

    Justification

    It is unnecessary to establish new colleges for the fulfilment of this task. Such issue can be handled within existing sectoral colleges. Creating additional college would be unnecessary and could lead to information inefficiencies and other inefficiencies.

    Amendment  51

    Proposal for a directive – amending act

    Article 2 – point 7

    Directive 2002/87/EC

    Article 11 – paragraph 4 – subparagraph 2

     

    Text proposed by the Commission

    Amendment

    The establishment and functioning of that college shall be based on a written coordination arrangement within the meaning of paragraph 1. The coordinator shall decide which other competent authorities participate in a meeting or in any activity of that college.

    deleted

    Amendment  52

    Proposal for a directive – amending act

    Article 2 – point 7

    Directive 2002/87/EC

    Article 11 – paragraph 5

     

    Text proposed by the Commission

    Amendment

    5. The European Banking Authority and the European Insurance and Occupational Pensions Authority shall issue common guidelines aimed at the consistency of supervisory coordination arrangements according to Article 131a of Directive 2006/48/EC and Article 248(4) of Directive 2009/138/EC.

    5. The ESAs shall, through the Joint Committee, issue common guidelines aimed at the consistency of supervisory coordination arrangements according to Article 131a of Directive 2006/48/EC and Article 248(4) of Directive 2009/138/EC.

    Amendment  53

    Proposal for a directive – amending act

    Article 2 – point 7 a (new)

    Directive 2002/87/EC

    Article 12 b (new)

     

    Text proposed by the Commission

    Amendment

     

    (7a) The following Article is inserted:

     

    "Article 12b

     

    Common guidelines

     

    The ESAs shall, through the Joint Committee, develop common guidelines on how risk-based assessments of conglomerates are to be conducted by the competent authority. Those guidelines shall, in particular, ensure that risk-based assessments include appropriate tools in order, on the one hand to assess group risks posed to the conglomerates including leverage and solvency ratios and, on the other, to guarantee full disclosure of the on and off-balance sheet exposures of conglomerates."

    Amendment  54

    Proposal for a directive – amending act

    Article 2 – point 7 b (new)

    Directive 2002/87/EC

    Article 18

     

    Text proposed by the Commission

    Amendment

     

    (7b) Article 18 is amended as follows:

     

    (a) the title is replaced by the following:

     

    "Parent undertakings outside the Union"

     

    (b) paragraph 3 is replaced by the following:

     

    "3. Member States shall allow their competent authorities to apply other methods which ensure appropriate supplementary supervision of the regulated entities in a financial conglomerate. These methods must be agreed by the coordinator, after consultation with the other relevant competent authorities. The competent authorities may in particular require the establishment of a mixed financial holding company which has its head office in the Union, and apply this Directive to the regulated entities in the financial conglomerate headed by that holding company. The methods must achieve the objectives of the supplementary supervision as defined in this Directive and must be notified to the other competent authorities involved and the Commission."

     

    (c) the following paragraph is added:

     

    "3a. The ESAs may, through the Joint Committee, develop common guidelines as to whether the supplementary supervision arrangements of competent authorities in third countries are likely to achieve the objectives of the supplementary supervision as defined in this Directive, in relation to the regulated entities in a financial conglomerate, the head of which has its head office in a third country. The Joint Committee shall review such guidelines at regular intervals and take into account any changes to the supplementary supervision carried out by such competent authorities."

    Amendment  55

    Proposal for a directive – amending act

    Article 2 – point 8

    Directive 2002/87/EC

    Article 19 – paragraph 2

     

    Text proposed by the Commission

    Amendment

    2. Without prejudice to the procedures provided for in Article 218 of the Treaty on the Functioning of the European Union, the Commission shall, with the assistance of the European Banking Committee, the European Insurance and Occupational Pensions Committee and the Financial Conglomerates Committee, examine the outcome of the negotiations referred to in paragraph 1 and the resulting situation.

    deleted

    Amendment  56

    Proposal for a directive – amending act

    Article 2 – point 9

    Directive 2002/87/EC

    Chapter III – Title

     

    Text proposed by the Commission

    Amendment

    POWERS CONFERRED ON THE COMMISSION, COMMITTEE PROCEDURE AND ADOPTION OF COMMON GUIDELINES

    DELEGATED ACTS AND IMPLEMENTING MEASURES

    Amendment  57

    Proposal for a directive – amending act

    Article 2 – point 9 a (new)

    Directive 2002/87/EC

    Article 20

     

    Text proposed by the Commission

    Amendment

     

    (9a) Article 20 is replaced by the following:

     

    "Article 20

     

    Delegation of power

     

    1. The Commission shall be empowered to adopt, by means of delegated acts in accordance with Article 21c measures concerning the technical adaptations to be made to this Directive in the following areas:

     

    (a) a more precise formulation of the definitions referred to in Article 2 in order to take account of developments in financial markets in the application of this Directive;

     

    [...]

     

    (b) the alignment of terminology and the framing of definitions in the Directive in accordance with subsequent Union acts on regulated entities and related matters;

     

    (c) a more precise definition of the calculation methods set out in Annex I in order to take account of developments on financial markets and prudential techniques.

     

    [...]

     

    Those measures shall not include the subject matter of the power delegated to and conferred on the Commission with regard to the items listed in Article 21a."

    Amendment  58

    Proposal for a directive – amending act

    Article 2 – point 9 b (new)

    Directive 2002/87/EC

    Article 20 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (9b) The following Article is inserted:

     

    "Article 20a

     

    Regulatory technical standards

     

    1. In order to ensure consistent harmonisation of Articles 2, 7 and 8 and Annex II, the ESAs shall, through the Joint Committee, develop draft regulatory technical standards to establish a more precise formulation of the definitions referred to in Article 2 and to coordinate the provisions adopted pursuant to Articles 7 and 8 and Annex II.

     

    2. The Joint Committee shall submit those draft regulatory technical standards to the Commission by 1 January 2013 on behalf of EBA, EIOPA and ESMA.

     

    3. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the paragraph 1 in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010."

    Amendment  59

    Proposal for a directive – amending act

    Article 2 – point 9 c (new)

    Directive 2002/87/EC

    Article 21

     

    Text proposed by the Commission

    Amendment

     

    (9c) In Article 21, paragraphs 2 to 5 are deleted.

    Amendment  60

    Proposal for a directive – amending act

    Article 2 – point 9 d (new)

    Directive 2002/87/EC

    Article 21a – paragraph 1 – subparagraph 1 – point c a (new)

     

    Text proposed by the Commission

    Amendment

     

    (9d) In the first subparagraph of Article 21a(1), the following point is added:

     

    "(ca) Article 6(2) in order to ensure a uniform format (with instructions), frequency and, where appropriate, the dates for reporting."

    Amendment  61

    Proposal for a directive – amending act

    Article 2 – point 9 e (new)

    Directive 2002/87/EC

    Article 21a – paragraph 2 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (9e) In Article 21a, the following paragraph is added:

     

    2a. From [1 January 2013], the Member States shall require a uniform format, frequency and dates for reporting of the calculations referred to in this Article, in accordance with the technical standards established under Article 21a(1)(ca)."

    Justification

    Similarly to under Banking Directive, the reporting of the calculated capital adequacy requirements under Directive 2002/87/EC should follow harmonised formats, frequencies and dates of reporting. This amendment is linked to amendment 6.

    Amendment  62

    Proposal for a directive – amending act

    Article 2 – point 10

    Directive 2002/87/EC

    Article 21b

     

    Text proposed by the Commission

    Amendment

    The European Banking Authority and the European Insurance and Occupational Pensions Authority shall issue the common guidelines referred to in Article 3(3), Article 7(5), Article 8(5), Article 9(6) and Article 11(5) in accordance with the procedure laid down in Article 42 of the Regulation (EU) No ../.. establishing the European Banking Authority, and in Article 42 of the Regulation (EU) No ../.. establishing the European Insurance and Occupational Pensions Authority, following cooperation within the Joint Committee of the European Supervisory Authorities.

    The ESAs shall, through the Joint Committee, issue the common guidelines referred to in Article 3(8), Article 7(5), Article 8(5), Article 9(6), Article 11(5) and Article 18(3a) in accordance with the procedure laid down in Article 56 of each of Regulation (EU) No 1093/2010, Regulation (EU) No 1094/2010 and Regulation (EU) No 1095/2005, following cooperation within the Joint Committee.

    Amendment  63

    Proposal for a directive – amending act

    Article 2 – point 10 a (new)

    Directive 2002/87/EC

    Article 21 c (new)

     

    Text proposed by the Commission

    Amendment

     

    (10a) The following Article is inserted:

     

    "Article 21c

     

    Exercise of the delegation

     

    1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

     

    2. The delegation of power referred to in Article 20 shall be conferred on the Commission for a period of four years from ….*. The Commission shall draw up a report in respect of the delegated power at the latest six months before the end of the four-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

     

    3. The delegation of power referred to in Article 20 may be revoked at any time by the European Parliament or by the Council. A revocation decision shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

     

    4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

     

    5. A delegated act adopted pursuant to Article 20 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or the Council. "

     

    _____

    * OJ: Please insert date of entry into force of this Directive.

    Amendment  64

    Proposal for a directive – amending act

    Article 2 – point 11 a (new)

    Directive 2002/87/EC

    Article 30 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (11a) The following Article is inserted:

     

    "Article 30a

     

    Alternative investment fund managers

     

    Pending further coordination of sectoral rules, Member States shall provide for the inclusion of alternative investment fund managers:

     

    (a) in the scope of consolidated supervision of credit institutions and investment firms, and/or in the scope of supplementary supervision of insurance undertakings in an insurance group;

     

    (b) where the group is a financial conglomerate, in the scope of supplementary supervision within the meaning of this Directive; and

     

    (c) in the identification process within the meaning of Article 3(2).

     

    For the application of the first paragraph, Member States shall provide, or give their competent authorities the power to decide, according to which sectoral rules (banking sector, insurance sector or investment services sector) alternative investment fund managers shall be included in the consolidated and/or supplementary supervision referred to in point (a) of the first paragraph. For the purposes of this provision, the relevant sectoral rules regarding the form and extent of the inclusion of financial institutions shall apply mutatis mutandis to alternative investment fund managers. For the purposes of supplementary supervision referred to in point (b) of the first paragraph, the alternative investment fund manager shall be treated as part of whichever sector it is included in by virtue of point (a) of the first paragraph.

     

    Where an alternative investment fund manager is part of a financial conglomerate, any reference to the notion of regulated entity and any reference to the notion of competent authorities and relevant competent authorities shall therefore, for the purposes of this Directive, be understood as including, respectively, alternative investment fund managers and the competent authorities responsible for the supervision of alternative investment fund managers. This applies mutatis mutandis as regards groups referred to in point (a) of the first paragraph."

    Amendment  65

    Proposal for a directive – amending act

    Article 3 – point -1 (new)

    Directive 2006/48/EC

    Article 1 – paragraph 2

     

    Text proposed by the Commission

    Amendment

     

    (-1) Article 1(2) is replaced by the following:

     

    "2. Article 39 and Title V, Chapter 4, Section 1 shall apply to financial holding companies, mixed financial holding companies and mixed-activity holding companies which have their head offices in the Union."

    Amendment  66

    Proposal for a directive – amending act

    Article 3 – point -1 (new)

    Directive 2006/48/EC

    Article 4 – points 14 to 17

     

    Text proposed by the Commission

    Amendment

     

    (-1) In Article 4, points (14) to (17) are replaced by the following:

     

    "(14) ‘parent credit institution in a Member State’ means a credit institution which has a credit institution or a financial institution as a subsidiary or which holds a participation in such an institution, and which is not itself a subsidiary of another credit institution authorised in the same Member State, or of a financial holding company or mixed financial holding company set up in the same Member State;

     

    (15) ‘parent financial holding company in a Member State’ means a financial holding company which is not itself a subsidiary of a credit institution authorised in the same Member State, or of a financial holding company or mixed financial holding company set up in the same Member State;

     

    (15a) ‘parent mixed financial holding company in a Member State’ means a mixed financial holding company which is not itself a subsidiary of a credit institution authorised in the same Member State, or of a financial holding company or mixed financial holding company set up in the same Member State;

     

    (16) ‘EU parent credit institution’ means a parent credit institution in a Member State which is not a subsidiary of another credit institution authorised in any Member State, or of a financial holding company or mixed financial holding company set up in any Member State;

     

    (17) ‘EU parent financial holding company’ means a parent financial holding company in a Member State which is not a subsidiary of a credit institution authorised in any Member State or of another financial holding company or mixed financial holding company set up in any Member State;

     

    (17a) ‘EU parent mixed financial holding company’ means a parent mixed financial holding company in a Member State which is not a subsidiary of a credit institution authorised in any Member State or of another financial holding company or mixed financial holding company set up in any Member State;"

    Amendment  67

    Proposal for a directive – amending act

    Article 3 – point 1 a (new)

    Directive 2006/48/EC

    Article 4 – point 49 b (new)

     

    Text proposed by the Commission

    Amendment

    (1) The following point (49) is added to Article 4:

    (1) The following points are added to Article 4:

    “(49) 'mixed financial holding company' means a mixed financial holding company as defined in Article 2(15) of Directive 2002/87/EC of the European Parliament and of the Council on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate1;”

    “(49) 'mixed financial holding company' means a mixed financial holding company as defined in Article 2(15) of Directive 2002/87/EC;

     

    (49a) ’alternative investment fund manager’ means a manager of alternative investment funds within the meaning of Article 4(1)(c) of Directive 2011/.../EU of the European Parliament and of the Council."

    _____

    1 OJ L 35, 11.2.2003, p. 1.

     

    Justification

    Establishes definition for AIFM to allow introduction of Volker Rule for banks

    Amendment  68

    Proposal for a directive – amending act

    Article 3 – point 1 b (new)

    Directive 2006/48/EC

    Article 14

     

    Text proposed by the Commission

    Amendment

     

    (1b) Article 14 is replaced by following:

     

    "Article 14

     

    Every authorisation shall be notified to EBA. The name of each credit institution to which authorisation has been granted shall be entered in a database, as shall the legal and operational structure of that institution, including all legal entities established by that institution. EBA shall publish and keep that database up-to-date on its website."

    Justification

    Ensures that the Rapporteur's amendment (31) requiring for the Joint Committee to track the legal and operational structure of all conglomerates is repeated for banks by EBA.

    Amendment  69

    Proposal for a directive – amending act

    Article 3 – point 1 c (new)

    Directive 2006/48/EC

    Article 39 – paragraph 1 – point b

     

    Text proposed by the Commission

    Amendment

     

    (1c) In Article 39(1), point (b) is replaced by the following:

     

    "(b) credit institutions situated in third countries the parent undertakings of which, whether credit institutions, financial holding companies or mixed financial holding companies, have their head offices in the Union.

    Amendment  70

    Proposal for a directive – amending act

    Article 3 – point 1 d (new)

    Directive 2006/48/EC

    Article 39 – paragraph 2 – point a

     

    Text proposed by the Commission

    Amendment

     

    (1d) In Article 39(2), point (a) is replaced by the following:

     

    (a) that the competent authorities of the Member States are able to obtain the information necessary for the supervision, on the basis of their consolidated financial situations, of credit institutions, financial holding companies or mixed financial holding companies situated in the Union and which have as subsidiaries credit institutions or financial institutions situated outside the Union, or holding participation in such institutions; and".

    Amendment  71

    Proposal for a directive – amending act

    Article 3 – point 1 e (new)

    Directive 2006/48/EC

    Article 69 – paragraph 2

     

    Text proposed by the Commission

    Amendment

     

    (1e) In Article 69, paragraph 2 is replaced by the following:

     

    2. The Member States may exercise the option provided for in paragraph 1 where the parent undertaking is a financial holding company or mixed financial holding company set up in the same Member State as the credit institution, provided that it is subject to the same supervision as that exercised over credit institutions, and in particular to the standards laid down in Article 71(1).

    Amendment  72

    Proposal for a directive – amending act

    Article 3 – point 3 a (new)

    Directive 2006/48/EC

    Article 72 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (3a) The following Article is inserted:

     

    "Article 72a

     

    1. Where a mixed financial holding company is subject to equivalent provisions under this Directive and under Directive 2002/87/EC, in particular in terms of consolidated capital adequacy requirements or risk-based supervision, the competent authority for responsible for the exercise of supervision on a consolidated basis may, after consulting the other competent authorities responsible for the supervision of subsidiaries, apply only the provision of Directive 2002/87/EC to that mixed financial holding company.

     

    2. Where a mixed financial holding company is subject to equivalent provisions under this Directive and under Directive 2009/138/EC, in particular in terms of consolidated capital adequacy requirements or risk-based supervision, the competent authority for the exercise of supervision on a consolidated basis may, in agreement with the group supervisor in the insurance sector, apply to that mixed financial holding company only the provision of the Directive relating to the most significant financial sector as defined in Article 3(2) of Directive 2002/87/EC.

     

    3. The consolidating supervisor shall inform EBA and the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council1 (EIOPA) of the decisions taken under paragraphs 1 and 2. EBA, EIOPA and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council3 (ESMA) shall, through the Joint Committee, develop guidelines aimed at converging supervisory practices and shall, within three years of the adoption of the guidelines, develop draft regulatory technical standards.

     

    Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010.

     

    _________

    1 OJ L 331, 15.12.2010, p. 12.

    2 OJ L 331, 15.12.2010, p. 48.

    3 OJ L 331, 15.12.2010, p. 84."

    Amendment  73

    Proposal for a directive – amending act

    Article 3 – point 3 b (new)

    Directive 2006/48/EC

    Article 73 – paragraph 2

     

    Text proposed by the Commission

    Amendment

     

    (3b) In Article 73, paragraph 2 is replaced by the following:

     

    2. Competent authorities shall require subsidiary credit institutions to apply the requirements laid down in Articles 75, 120 and 123 and Section 5 of this Directive on a sub-consolidated basis if those credit institutions, or the parent undertaking where it is a financial holding company or mixed financial holding company, have a credit institution or a financial institution or an asset management company as defined in Article 2(5) of Directive 2002/87/EC as a subsidiary in a third country, or hold a participation in such an undertaking.

    Amendment  74

    Proposal for a directive – amending act

    Article 3 – point 3 c (new)

    Directive 2006/48/EC

    Article 80 – paragraph 7 – point a

     

    Text proposed by the Commission

    Amendment

     

    (3c) In Article 80(7), point (a) is replaced by the following:

     

    "(a) the counterparty is an institution or a financial holding company, mixed financial holding company, financial institution, asset management company or ancillary services undertaking subject to appropriate prudential requirements;"

    Amendment  75

    Proposal for a directive – amending act

    Article 3 – point 3 d (new)

    Directive 2006/48/EC

    Article 84 – paragraph 2 – subparagraph 2

     

    Text proposed by the Commission

    Amendment

     

    (3d) In Article 84(2), the second subparagraph is replaced by the following:

     

    Where an EU parent credit institution and its subsidiaries or an EU parent financial holding company and its subsidiaries or an EU parent mixed financial holding company and its subsidiaries use the IRB Approach on a unified basis, the competent authorities may allow minimum requirements of Annex VII, Part 4 to be met by the parent and its subsidiaries considered together."

    Amendment  76

    Proposal for a directive – amending act

    Article 3 – point 4 a (new)

    Directive 2006/48/EC

    Article 89 – paragraph 1 – point e

     

    Text proposed by the Commission

    Amendment

     

    (4a) In Article 89(1), point (e) is replaced by the following:

     

    "(e) exposures of a credit institution to a counterparty which is its parent undertaking, its subsidiary or a subsidiary of its parent undertaking provided that the counterparty is an institution or a financial holding company, mixed financial holding company, financial institution, asset management company or ancillary services undertaking subject to appropriate prudential requirements or an undertaking linked by a relationship within the meaning of Article 12(1) of Directive 83/349/EEC and exposures between credit institutions which meet the requirements set out in Article 80(8);";

    Amendment  77

    Proposal for a directive – amending act

    Article 3 – point 5

    Directive 2006/48/EC

    Article 105 – paragraph 3

     

    Text proposed by the Commission

    Amendment

    3. When an Advanced Measurement Approach is intended to be used by an EU parent credit institution and its subsidiaries or by the subsidiaries of an EU parent financial holding company or an EU parent mixed financial holding company, the competent authorities of the different legal entities shall cooperate closely as provided for in Articles 129 to 132. The application shall include the elements listed in Annex X, Part 3.

    3. When an Advanced Measurement Approach is intended to be used by an EU parent credit institution and its subsidiaries, an EU parent financial holding company and its subsidiaries or an EU parent mixed financial holding company and its subsidiaries, the competent authorities of the different legal entities shall cooperate closely as provided for in Articles 129 to 132. The application shall include the elements listed in Annex X, Part 3.

    Amendment  78

    Proposal for a directive – amending act

    Article 3 – point 5

    Directive 2006/48/EC

    Article 105 – paragraph 4

     

    Text proposed by the Commission

    Amendment

    4. Where an EU parent credit institution and its subsidiaries or the subsidiaries of an EU parent financial holding company or an EU parent mixed financial holding company use an Advanced Measurement Approach on a unified basis, the competent authorities may allow the qualifying criteria set out in Annex X, Part 3 to be met by the parent and its subsidiaries considered together.

    4. Where an EU parent credit institution and its subsidiaries, an EU parent financial holding company and its subsidiaries or an EU parent mixed financial holding company and its subsidiaries use an Advanced Measurement Approach on a unified basis, the competent authorities may allow the qualifying criteria set out in Annex X, Part 3 to be met by the parent and its subsidiaries considered together.

    Amendment  79

    Proposal for a directive – amending act

    Article 3 – point 5 a (new)

    Directive 2006/48/EC

    Article 122a – paragraph 2

     

    Text proposed by the Commission

    Amendment

     

    (5a) In Article 122a, paragraph 2 is replaced by the following:

     

    2. Where an EU parent credit institution, an EU parent financial holding company or EU parent mixed financial holding company, or one of its subsidiaries, as an originator or a sponsor, securitises exposures from several credit institutions, investment firms or other financial institutions which are included in the scope of supervision on a consolidated basis, the requirement referred to in paragraph 1 may be satisfied on the basis of the consolidated situation of the related EU parent credit institution, EU parent financial holding company or EU parent mixed financial holding company. This paragraph shall apply only where credit institutions, investment firms or financial institutions which created the securitised exposures have committed themselves to adhere to the requirements set out in paragraph 6 and deliver, in a timely manner, to the originator or sponsor and to the EU parent credit institution, the EU parent financial holding company or the EU parent mixed financial holding company the information needed to satisfy the requirements referred to in paragraph 7.

    Amendment  80

    Proposal for a directive – amending act

    Article 3 – point 6

    Directive 2006/48/EC

    Article 125 – paragraph 2

     

    Text proposed by the Commission

    Amendment

    2. Where the parent of a credit institution is a parent financial holding company in a Member State or an EU parent financial holding company or an EU parent mixed financial holding company, supervision on a consolidated basis shall be exercised by the competent authorities that authorised that credit institution under Article 6.

    2. Where the parent of a credit institution is a parent financial holding company in a Member State, a parent mixed financial holding company in a Member State, an EU parent financial holding company or an EU parent mixed financial holding company, supervision on a consolidated basis shall be exercised by the competent authorities that authorised that credit institution under Article 6.

    Amendment  81

    Proposal for a directive – amending act

    Article 3 – point 7

    Directive 2006/48/EC

    Article 126 – paragraph 1

     

    Text proposed by the Commission

    Amendment

    1. Where credit institutions authorised in two or more Member States have as their parent the same parent financial holding company in a Member State or the same EU parent financial holding company or the same mixed financial holding company, supervision on a consolidated basis shall be exercised by the competent authorities of the credit institution authorised in the Member State in which the financial holding company or mixed financial holding company was set up.

    1. Where credit institutions authorised in two or more Member States have as their parent the same parent financial holding company in a Member State, the same parent mixed financial holding company in a Member State, the same EU parent financial holding company or the same EU parent mixed financial holding company, supervision on a consolidated basis shall be exercised by the competent authorities of the credit institution authorised in the Member State in which the financial holding company or mixed financial holding company was set up.

    Where the parents of credit institutions authorised in two or more Member States comprise more than one financial holding company with head offices in different Member States and there is a credit institution in each of these States, supervision on a consolidated basis shall be exercised by the competent authority of the credit institution with the largest balance sheet total.

    Where the parents of credit institutions authorised in two or more Member States comprise more than one financial holding company or mixed financial holding company with head offices in different Member States and there is a credit institution in each of these States, supervision on a consolidated basis shall be exercised by the competent authority of the credit institution with the largest balance sheet total.

    Amendment  82

    Proposal for a directive – amending act

    Article 3 – point 8 – point a

    Directive 2006/48/EC

    Article 127 – paragraph 1

     

    Text proposed by the Commission

    Amendment

    1. Member States shall adopt any measures necessary, where appropriate, to include financial holding companies or mixed financial holding companies in consolidated supervision. Without prejudice to Article 135, the consolidation of the financial situation of the financial holding company or the mixed financial holding company shall not in any way imply that the competent authorities are required to play a supervisory role in relation to the financial holding company on a stand alone basis.

    1. Member States shall adopt any measures necessary, where appropriate, to include financial holding companies or mixed financial holding companies in consolidated supervision. Without prejudice to Article 135, the consolidation of the financial situation of the financial holding company or the mixed financial holding company shall not in any way imply that the competent authorities are required to play a supervisory role in relation to the financial holding company or mixed financial holding company on a stand alone basis.

    Amendment  83

    Proposal for a directive – amending act

    Article 3 – point 8 – point b

    Directive 2006/48/EC

    Article 127 – paragraph 3

     

    Text proposed by the Commission

    Amendment

    3. Member States shall provide that their competent authorities responsible for exercising supervision on a consolidated basis may ask the subsidiaries of a credit institution or a financial holding company or a mixed financial holding company, which are not included within the scope of supervision on a consolidated basis for the information referred to in Article 137. In such a case, the procedures for transmitting and verifying the information laid down in that Article shall apply.

    3. Member States shall provide that their competent authorities responsible for exercising supervision on a consolidated basis may ask the subsidiaries of a credit institution, a financial holding company or a mixed financial holding company, which are not included within the scope of supervision on a consolidated basis for the information referred to in Article 137. In such a case, the procedures for transmitting and verifying the information laid down in that Article shall apply.

    Amendment  84

    Proposal for a directive – amending act

    Article 3 – point 10 a (new)

    Directive 2006/48/EC

    Article 129 – paragraph 3 – subparagraphs 1, 5 and 9

     

    Text proposed by the Commission

    Amendment

     

    (10a) In Article 129, paragraph 3 is amended as follows:

     

    (a) the first subparagraph is replaced by the following:

     

    3. The consolidating supervisor and the competent authorities responsible for the supervision of subsidiaries of an EU parent credit institution, an EU parent financial holding company or an EU parent mixed financial holding company shall do everything within their power to reach a joint decision on the application of Articles 123 and 124 to determine the adequacy of the consolidated level of own funds held by the group with respect to its financial situation and risk profile and the required level of own funds for the application of Article 136(2) to each entity within the banking group and on a consolidated basis.

     

    (b) the fifth subparagraph is replaced by the following:

     

    "The decision on the application of Articles 123 and 124 and Article 136(2) shall be taken by the respective competent authorities responsible for supervision of subsidiaries of an EU parent credit institution, an EU parent financial holding company or an EU parent mixed financial holding company on an individual or sub-consolidated basis after duly considering the views and reservations expressed by the consolidating supervisor. If, at the end of the four-month period, any of the competent authorities concerned has referred the matter to EBA in accordance with Article 19 of Regulation (EU) No 1093/2010, the competent authorities shall defer their decision and await any decision that EBA shall take in accordance with Article 19(3) of that Regulation, and shall take its decision in conformity with the decision of EBA. The four-month period shall be deemed the conciliation period within the meaning of that Regulation. EBA shall take its decision within one month. The matter shall not be referred to EBA after the end of the four‑month period or after a joint decision has been reached."

     

    (c) the ninth subparagraph is replaced by the following:

     

    "The joint decision referred to in the first subparagraph and any decision taken in the absence of a joint decision in accordance with the fourth and fifth subparagraphs, shall be updated on an annual basis or, in exceptional circumstances, where a competent authority responsible for the supervision of subsidiaries of an EU parent credit institution, an EU parent financial holding company or an EU parent mixed financial holding company makes a written and fully reasoned request to the consolidating supervisor to update the decision on the application of Article 136(2). In the latter case, the update may be addressed on a bilateral basis between the consolidating supervisor and the competent authority making the request."

    Amendment  85

    Proposal for a directive – amending act

    Article 3 – point 10 b (new)

    Directive 2006/48/EC

    Article 131a – paragraph 2 – subparagraph 3

     

    Text proposed by the Commission

    Amendment

     

    (10b) In Article 131a(2), the third subparagraph is replaced by the following:

     

    The competent authorities responsible for the supervision of subsidiaries of an EU parent credit institution, an EU parent financial holding company or an EU parent mixed financial holding company and the competent authorities of a host country where significant branches as referred to in Article 42a are established, central banks as appropriate, and third countries' competent authorities where appropriate and subject to confidentiality requirements that are equivalent, in the opinion of all competent authorities, to the requirements under Chapter 1 Section 2, may participate in colleges of supervisors.

    Amendment  86

    Proposal for a directive – amending act

    Article 3 – point 10 c (new)

    Directive 2006/48/EC

    Article 132 – paragraph 1 – subparagraph 3

     

    Text proposed by the Commission

    Amendment

     

    (10c) In Article 132(1), the third subparagraph is replaced by the following:

     

    In particular, competent authorities responsible for consolidated supervision of EU parent credit institutions and credit institutions controlled by EU parent financial holding companies or by EU parent mixed financial holding companies shall provide the competent authorities in other Member States who supervise subsidiaries of these parents with all relevant information. In determining the extent of relevant information, the importance of these subsidiaries within the financial system in those Member States shall be taken into account.

    Amendment  87

    Proposal for a directive – amending act

    Article 3 – point 10 d (new)

    Directive 2006/48/EC

    Article 135

     

    Text proposed by the Commission

    Amendment

     

    (10d) Article 135 is replaced by the following:

     

    "Article135

     

    The Member States shall require that persons who effectively direct the business of a financial holding company or a mixed financial holding company be of sufficiently good repute and have sufficient experience to perform those duties."

    Amendment  88

    Proposal for a directive – amending act

    Article 3 – point 10 e (new)

    Directive 2006/48/EC

    Article 139 – paragraph 3 – subparagraph 1

     

    Text proposed by the Commission

    Amendment

     

    (10e) In Article 139(3), the first subparagraph is replaced by the following:

     

    3. Member States shall authorise the exchange between their competent authorities of the information referred to in paragraph 2, on the understanding that, in the case of financial holding companies, mixed financial holding companies, financial institutions or ancillary services undertakings, the collection or possession of information shall not in any way imply that the competent authorities are required to play a supervisory role in relation to those institutions or undertakings standing alone.

    Amendment  89

    Proposal for a directive – amending act

    Article 3 – point 10 f (new)

    Directive 2006/48/EC

    Article 140 – paragraphs 1 and 3

     

    Text proposed by the Commission

    Amendment

     

    (10f) Article 140 is amended as follows:

     

    (a) paragraph 1 is replaced by the following:

     

    1. Where a credit institution, financial holding company, mixed financial holding company or a mixed activity holding company controls one or more subsidiaries which are insurance companies or other undertakings providing investment services which are subject to authorisation, the competent authorities and the authorities entrusted with the public task of supervising insurance undertakings or those other undertakings providing investment services shall cooperate closely. Without prejudice to their respective responsibilities, those authorities shall provide one another with any information likely to simplify their task and to allow supervision of the activity and overall financial situation of the undertakings they supervise.

     

    (b) paragraph 3 is replaced by the following:

     

    3. The competent authorities responsible for supervision on a consolidated basis shall establish lists of the financial holding companies or mixed financial holding companies referred to in Article 71(2). Those lists shall be communicated to the competent authorities of the other Member States, to EBA and to the Commission.

    Amendment  90

    Proposal for a directive – amending act

    Article 3 – point 12 a (new)

    Directive 98/78/EC

    Article 143 – paragraph 3 – subparagraph 3

     

    Text proposed by the Commission

    Amendment

     

    (12a) In Article 143(3), the third subparagraph is replaced by the following:

     

    Competent authorities may in particular require the establishment of a financial holding company or mixed financial holding company which has its head office in the Union, and apply the provisions on consolidated supervision to the consolidated position of that financial holding company or mixed financial holding company.

    Amendment  91

    Proposal for a directive – amending act

    Article 3 a – title and introductory part (new)

    Directive 2009/138/EC

     

    Text proposed by the Commission

    Amendment

     

    Article 3a

     

    Amendments to Directive 2009/138/EC

     

    Directive 2009/138/EC is amended as follows:

    Amendment  92

    Proposal for a directive – amending act

    Article 3 a – point 1 (new)

    Directive 2009/138/EC

    Article 25 a (new)

     

    Text proposed by the Commission

    Amendment

     

    (1) The following article is inserted:

     

    "Article 25a

     

    Notification and publication of authorisations

     

    Every authorisation shall be notified to the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council1 (EIOPA). The name of each insurance undertaking and reinsurance undertaking to which authorisation has been granted shall be entered on a database, as shall the legal and operational structure of that undertaking, including all legal entities established by that undertaking. EIOPA shall publish and keep up to date that list on its website.

     

    _____________

    1. OJ L 331, 15.12.2010, p. 48."

    Justification

    Ensures that the Rapporteur's amendment (31) requiring for the Joint Committee to track the legal and operational structure of all conglomerates is repeated for insurers and re-insurers by EIOPA.

    Amendment  93

    Proposal for a directive – amending act

    Article 3 a – point 2 (new)

    Directive 2009/138/EC

    Article 212 – paragraph 1 – points f and g

     

    Text proposed by the Commission

    Amendment

     

    (2) In Article 212(1), point (f) and (g) are replaced by the following:

     

    "(f) "insurance holding company" means a parent undertaking which is not a mixed financial holding company [...] and the main business of which is to acquire and hold participations in subsidiary undertakings, where those subsidiary undertakings are exclusively or mainly insurance or reinsurance undertakings, or third-country insurance or reinsurance undertakings, at least one of such subsidiary undertakings being an insurance or reinsurance undertaking.

     

    (g) "mixed-activity insurance holding company" means a parent undertaking, other than an insurance undertaking, a third-country insurance undertaking, a reinsurance undertaking, a third-country reinsurance undertaking, an insurance holding company or a mixed financial holding company [...], which includes at least one insurance or reinsurance undertaking among its subsidiary undertakings.

     

    (ga) 'mixed financial holding company' means a mixed financial holding company as defined in Article 2(15) of Directive 2002/87/EC."

    Amendment  94

    Proposal for a directive – amending act

    Article 3 a – point 3 (new)

    Directive 2009/138/EC

    Article 213 – paragraphs 2 and 3

     

    Text proposed by the Commission

    Amendment

     

    (3) In Article 213, paragraphs 2 and 3 are replaced by the following:

     

    "2. Member States shall ensure that supervision at the level of the group applies as follows:

     

    (a) to insurance or reinsurance undertakings, which are a participating undertaking in at least one insurance undertaking, reinsurance undertaking, third-country insurance undertaking or third-country reinsurance undertaking, in accordance with Articles 218 to 258;

     

    (b) to insurance or reinsurance undertakings, the parent undertaking of which is an insurance holding company or a mixed financial holding company which has its head office in the Union, in accordance with Articles 218 to 258;

     

    (c) to insurance or reinsurance undertakings, the parent undertaking of which is an insurance holding company or a mixed financial holding company having its head office outside the Union or a third-country insurance or reinsurance undertaking, in accordance with Articles 260 to 263;

     

    (d) to insurance or reinsurance undertakings, the parent undertaking of which is a mixed-activity insurance holding company, in accordance with Article 265.

     

    3. In the cases referred to in points (a) and (b) of paragraph 2, where the participating insurance or reinsurance undertaking or the insurance holding company or mixed financial holding company which has its head office in the Union is either a related undertaking of, or is itself a regulated entity or a mixed financial holding company which is subject to supplementary supervision in accordance with Article 5(2) of Directive 2002/87/EC, the group supervisor may, after consulting the other supervisory authorities concerned, decide not to carry out at the level of that participating insurance or reinsurance undertaking or that insurance holding company or mixed financial holding company the supervision of risk concentration referred to in Article 244 of this Directive, the supervision of intra-group transactions referred to in Article 245 of this Directive, or both.

     

    3a. Where a mixed financial holding company is subject to equivalent provisions under this Directive and under Directive 2002/87/EC, in particular in terms of consolidated capital adequacy requirements or risk-based supervision, the competent authority for exercising supplementary supervision may, after consulting the other supervisory authorities concerned, apply only the provision of Directive 2002/87/EC to that mixed financial holding company.

     

    3b. Where a mixed financial holding company is subject to equivalent provisions under this Directive and under Directive 2006/48/EC, in particular in terms of consolidated capital adequacy requirements or risk-based supervision, the competent authority for exercising supplementary supervision may, in agreement with the consolidating supervisor in the banking and investment services sector, apply only the provision of the Directive relating to the most significant sector as defined in Article 3(2) of Directive 2002/87/EC.

     

    3c. The competent authority for exercising supplementary supervision shall inform the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council1(EBA) and EIOPA of the decisions taken under paragraphs 3a and 3b. EBA, EIOPA and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/20102 shall, through the Joint Committee, develop guidelines aimed at converging supervisory practices and shall, within three years of the adoption of the guidelines, develop draft regulatory technical standards.

     

    Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010.

     

    _______

    1 OJ L 331, 15.12.2010, p. 12.

    2 OJ L 331, 15.12.2010, p. 84.

    Amendment  95

    Proposal for a directive – amending act

    Article 3 a – point 4 (new)

    Directive 2009/138/EC

    Article 214 – paragraph 1

     

    Text proposed by the Commission

    Amendment

     

    (4) In Article 214, paragraph 1 is replaced by the following:

     

    "1. The exercise of group supervision in accordance with Article 213 shall not imply that the supervisory authorities are required to play a supervisory role in relation to the third-country insurance undertaking, the third-country reinsurance undertaking, the insurance holding company, the mixed financial holding company or the mixed-activity insurance holding company taken individually, without prejudice to Article 257 as far as insurance holding companies or mixed financial holding companies are concerned."

    Amendment  96

    Proposal for a directive – amending act

    Article 3 a – point 5 (new)

    Directive 2009/138/EC

    Article 215 – paragraphs 1 and 2

     

    Text proposed by the Commission

    Amendment

     

    (5) In Article 215, paragraphs 1 and 2 are replaced by the following:

     

    "1. Where the participating insurance or reinsurance undertaking or the insurance holding company or the mixed financial holding company referred to in Article 213(2)(a) and (b) is itself a subsidiary undertaking of another insurance or reinsurance undertaking or of another insurance holding company or of another mixed financial holding company which has its head office in the Union, Articles 218 to 258 shall apply only at the level of the ultimate parent insurance or reinsurance undertaking, insurance holding company or mixed financial holding company which has its head office in the Union.

     

    2. Where the ultimate parent insurance or reinsurance undertaking or insurance holding company or the mixed financial holding company which has its head office in the Union, referred to in paragraph 1, is a subsidiary undertaking of an undertaking which is subject to supplementary supervision in accordance with Article 5(2) of Directive 2002/87/EC, the group supervisor may, after consulting the other supervisory authorities concerned, decide not to carry out at the level of that ultimate parent undertaking the supervision of risk concentration referred to in Article 244, the supervision of intra-group transactions referred to in Article 245, or both."

    Amendment  97

    Proposal for a directive – amending act

    Article 3 a – point 6 (new)

    Directive 2009/138/EC

    Article 216 – paragraph 1

     

    Text proposed by the Commission

    Amendment

     

    (6) In Article 216, paragraph 1 is replaced by the following:

     

    "1. Where the participating insurance or reinsurance undertaking or the insurance holding company or the mixed financial holding company which has its head office in the Union, referred to in Article 213(2)(a) and (b), does not have its head office in the same Member State as the ultimate parent undertaking at Union level referred to in Article 215, Member States may allow their supervisory authorities to decide, after consulting the group supervisor and that ultimate parent undertaking at Union level, to subject to group supervision the ultimate parent insurance or reinsurance undertaking, insurance holding company or mixed financial holding company at national level."

    Amendment  98

    Proposal for a directive – amending act

    Article 3 a – point 7 (new)

    Directive 2009/138/EC

    Article 219

     

    Text proposed by the Commission

    Amendment

     

    (7) Article 219 is replaced by the following:

     

    "Article 219

     

    Frequency of calculation

     

    1. The group supervisor shall ensure that the calculations referred to in Article 218(2) and (3) are carried out at least annually, [...] by the participating insurance undertaking, reinsurance undertaking, insurance holding company or mixed financial holding company.

     

    The relevant data for and the results of that calculation shall be submitted to the group supervisor by the participating insurance or reinsurance undertaking or, where the group is not headed by an insurance or reinsurance undertaking, by the insurance holding company or the mixed financial holding company or by the undertaking in the group identified by the group supervisor after consulting the other supervisory authorities concerned and the group itself.

     

    2. The insurance undertaking, reinsurance undertaking, insurance holding company and the mixed financial holding company shall monitor the group Solvency Capital Requirement on an ongoing basis. Where the risk profile of the group deviates significantly from the assumptions underlying the last reported group Solvency Capital Requirement, the group Solvency Capital Requirement shall be recalculated without delay and reported to the group supervisor.

     

    Where there is evidence to suggest that the risk profile of the group has altered significantly since the date on which the group Solvency Capital Requirement was last reported, the group supervisor may require a recalculation of the group Solvency Capital Requirement."

    Amendment  99

    Proposal for a directive – amending act

    Article 3 a – point 8 (new)

    Directive 2009/138/EC

    Article 226

     

    Text proposed by the Commission

    Amendment

     

    (8) Article 226 is replaced by the following:

     

    "Article 226

     

    Intermediate insurance holding companies

     

    1. When calculating the group solvency of an insurance or reinsurance undertaking which holds a participation in a related insurance undertaking, a related reinsurance undertaking, a third-country insurance undertaking or a third-country reinsurance undertaking, through an insurance holding company or a mixed financial holding company, the situation of such an insurance holding company or mixed financial holding company shall be taken into account.

     

    For the sole purpose of that calculation, the intermediate insurance holding company or intermediate mixed financial holding company shall be treated as if it were an insurance or reinsurance undertaking subject to the rules laid down in Title I, Chapter VI, Section 4, Subsections 1, 2 and 3 in respect of the Solvency Capital Requirement and were subject to the same conditions as are laid down in Title I, Chapter VI, Section 3, Subsections 1, 2 and 3, in respect of own funds eligible for the Solvency Capital Requirement.

     

    2. In cases where an intermediate insurance holding company or intermediate mixed financial holding company holds subordinated debt or other eligible own funds subject to limitation in accordance with Article 98, they shall be recognised as eligible own funds up to the amounts calculated by application of the limits set out in Article 98 to the total eligible own funds outstanding at group level as compared to the Solvency Capital Requirement at group level.

     

    Any eligible own funds of an intermediate insurance holding company or intermediate mixed financial holding company, which would require prior authorisation from the supervisory authority in accordance with Article 90 if they were held by an insurance or reinsurance undertaking, may be included in the calculation of the group solvency only in so far as they have been duly authorised by the group supervisor."

    Amendment  100

    Proposal for a directive – amending act

    Article 3 a – point 9 (new)

    Directive 2009/138/EC

    Article 231 – paragraph 1

     

    Text proposed by the Commission

    Amendment

     

    (9) In Article 231, paragraph 1 is replaced by the following:

     

    1. In the case of an application for permission to calculate the consolidated group Solvency Capital Requirement, as well as the Solvency Capital Requirement of insurance and reinsurance undertakings in the group, on the basis of an internal model, submitted by an insurance or reinsurance undertaking and its related undertakings, or jointly by the related undertakings of an insurance holding company or a mixed financial holding company, the supervisory authorities concerned shall cooperate to decide whether or not to grant that permission and to determine the terms and conditions, if any, to which such permission is subject."

    Amendment  101

    Proposal for a directive – amending act

    Article 3 a – point 10 (new)

    Directive 2009/138/EC

    Article 233 – paragraph 5

     

    Text proposed by the Commission

    Amendment

     

    (10) In Article 233, paragraph 5 is replaced by the following:

     

    "5. In the case of an application for permission to calculate the Solvency Capital Requirement of insurance and reinsurance undertakings in the group on the basis of an internal model, submitted by an insurance or reinsurance undertaking and its related undertakings, or jointly by the related undertakings of an insurance holding company or mixed financial holding company, Article 231 shall apply mutatis mutandis."

    Amendment  102

    Proposal for a directive – amending act

    Article 3 a – point 11 (new)

    Directive 2009/138/EC

    Title III – Chapter II – Section I – title

     

    Text proposed by the Commission

    Amendment

     

    (11) In Title III, Chapter II, Section I, the title of Subsection 5 is replaced by the following:

     

    "Supervision of group solvency for insurance and reinsurance undertakings that are subsidiaries of an insurance holding company and mixed financial holding company".

    Amendment  103

    Proposal for a directive – amending act

    Article 3 a – point 12 (new)

    Directive 2009/138/EC

    Article 235

     

    Text proposed by the Commission

    Amendment

     

    (12) Article 235 is replaced by the following:

     

    Article 235

     

    Group solvency of an insurance holding company and mixed financial holding company

     

    Where insurance and reinsurance undertakings are subsidiaries of an insurance holding company or mixed financial holding company, the group supervisor shall ensure that the calculation of the solvency of the group is carried out at the level of the insurance holding company or mixed financial holding company applying Article 220(2) to Article 233.

     

    For the purpose of that calculation, the parent undertaking shall be treated as if it were an insurance or reinsurance undertaking subject to the rules laid down in Title I, Chapter VI, Section 4, Subsections 1, 2 and 3 as regards the Solvency Capital Requirement and subject to the same conditions as laid down in Title I, Chapter VI, Section 3, Subsections 1, 2 and 3 as regards the own funds eligible for the Solvency Capital Requirement."

    Amendment  104

    Proposal for a directive – amending act

    Article 3 a – point 13 (new)

    Directive 2009/138/EC

    Article 243

     

    Text proposed by the Commission

    Amendment

     

    (13) Article 243 is replaced by the following:

     

    "Article 243

     

    Subsidiaries of an insurance holding company and mixed financial holding company

     

    Articles 236 to 242 shall apply mutatis mutandis to insurance and reinsurance undertakings which are the subsidiary of an insurance holding company or mixed financial holding company."

    Amendment  105

    Proposal for a directive – amending act

    Article 3 a – point 14 (new)

    Directive 2009/138/EC

    Article 244 – paragraph 2

     

    Text proposed by the Commission

    Amendment

     

    (14) In Article 244, paragraph 2 is replaced by the following:

     

    "2. The Member States shall require insurance and reinsurance undertakings or insurance holding companies or mixed financial holding companies to report on a regular basis and at least annually to the group supervisor any significant risk concentration at the level of the group.

     

    The necessary information shall be submitted to the group supervisor by the insurance or reinsurance undertaking which is at the head of the group or, where the group is not headed by a insurance or reinsurance undertaking, by the insurance holding company, by the mixed financial holding company or by the insurance or reinsurance undertaking in the group identified by the group supervisor after consulting the other supervisory authorities concerned and the group.

     

    The risk concentrations shall be subject to supervisory review by the group supervisor."

    Amendment  106

    Proposal for a directive – amending act

    Article 3 a – point 15 (new)

    Directive 2009/138/EC

    Article 245 – paragraph 2

     

    Text proposed by the Commission

    Amendment

     

    (15) In Article 245, paragraph 2 is replaced by the following:

     

    "2. The Member States shall require insurance and reinsurance undertakings, insurance holding companies and mixed financial holding companies to report on a regular basis and at least annually to the group supervisor all significant intra-group transactions by insurance and reinsurance undertakings within a group, including those performed with a natural person with close links to an undertaking in the group.

     

    In addition, Member States shall require reporting of very significant intra-group transactions as soon as practicable.

     

    The necessary information shall be submitted to the group supervisor by the insurance or reinsurance undertaking which is at the head of the group or, where the group is not headed by an insurance or reinsurance undertaking, by the insurance holding company, the mixed financial holding company or by the insurance or reinsurance undertaking in the group identified by the group supervisor after consulting the other supervisory authorities concerned and the group.

     

    The intra-group transactions shall be subject to supervisory review by the group supervisor."

    Amendment  107

    Proposal for a directive – amending act

    Article 3 a – point 16 (new)

    Directive 2009/138/EC

    Article 246 – paragraph 4 – subparagraphs 1, 2 and 3

     

    Text proposed by the Commission

    Amendment

     

    (16) In Article 246(4), the first, second and third subparagraphs are replaced by the following:

     

    "4. Member States shall require the participating insurance undertaking or reinsurance undertaking, insurance holding company or mixed financial holding company to undertake at the level of the group the assessment required by Article 45. The own-risk and solvency assessment conducted at group level shall be subject to supervisory review by the group supervisor in accordance with Chapter III.

     

    Where the calculation of the solvency at the level of the group is carried out in accordance with method 1, as referred to in Article 230, the participating insurance or reinsurance undertaking, insurance holding company or mixed financial holding company shall provide to the group supervisor a proper understanding of the difference between the sum of the Solvency Capital Requirements of all the related insurance or reinsurance undertakings of the group and the group consolidated Solvency Capital Requirement.

     

    Where the participating insurance or reinsurance undertaking, insurance holding company or mixed financial holding company so decides, and subject to the agreement of the group supervisor, it may undertake any assessments required by Article 45 at the level of the group and at the level of any subsidiary in the group at the same time, and may produce a single document covering all the assessments."

    Amendment  108

    Proposal for a directive – amending act

    Article 3 a – point 17 (new)

    Directive 2009/138/EC

    Article 247 – point b

     

    Text proposed by the Commission

    Amendment

     

    (17) In Article 247(2), point (b) is replaced by the following:

     

    "(b) where a group is not headed by an insurance or reinsurance undertaking, by the supervisory authority identified in accordance with the following:

     

    (i) where the parent of an insurance or reinsurance undertaking is an insurance holding company or mixed financial holding company, by the supervisory authority which has authorised that insurance or reinsurance undertaking;

     

    (ii) where more than one insurance or reinsurance undertaking with a head office in the Union have as their parent the same insurance holding company or mixed financial holding company, and one of those undertakings has been authorised in the Member State in which the insurance holding company or mixed financial holding company has its head office, by the supervisory authority of the insurance or reinsurance undertaking authorised in that Member State;

     

    (iii) where the group is headed by more than one insurance holding company or mixed financial holding company with a head office in different Member States and there is an insurance or reinsurance undertaking in each of those Member States, by the supervisory authority of the insurance or reinsurance undertaking with the largest balance sheet total;

     

    (iv) where more than one insurance or reinsurance undertaking with a head office in the Union have as their parent the same insurance holding company or mixed financial holding company and none of those undertakings has been authorised in the Member State in which the insurance holding company or mixed financial holding company has its head office, by the supervisory authority which authorised the insurance or reinsurance undertaking with the largest balance sheet total; or

     

    (v) where the group is a group without a parent undertaking, or in any circumstances not referred to in points (i) to (iv) by the supervisory authority which authorised the insurance or reinsurance undertaking with the largest balance sheet total."

    Amendment  109

    Proposal for a directive – amending act

    Article 3 a – point 18 (new)

    Directive 2009/138/EC

    Article 256 – paragraphs 1 and 2

     

    Text proposed by the Commission

    Amendment

     

    (18) In Article 256, paragraphs 1 and 2 are replaced by the following:

     

    "1. Member States shall require participating insurance and reinsurance undertakings, insurance holding companies and mixed financial holding companies to disclose publicly, on an annual basis, a report on the solvency and financial condition at the level of the group. Articles 51 and 53 to 55 shall apply mutatis mutandis.

     

    2. Where a participating insurance or reinsurance undertaking, insurance holding company or mixed financial holding company so decides, and subject to the agreement of the group supervisor, it may provide a single solvency and financial condition report which shall comprise the following:

     

    (a) the information at the level of the group which must be disclosed in accordance with paragraph 1;

     

    (b) the information for any of the subsidiaries within the group which must be individually identifiable and disclosed in accordance with Articles 51 and 53 to 55.

     

    Before granting the agreement in accordance with the first subparagraph, the group supervisor shall consult and duly take into account any views and reservations of the members of the college of supervisors."

    Amendment  110

    Proposal for a directive – amending act

    Article 3 a – point 19 (new)

    Directive 2009/138/EC

    Article 257

     

    Text proposed by the Commission

    Amendment

     

    (19) Article 257 is replaced by the following:

     

    "Article 257

     

    Administrative, management or supervisory body of insurance holding companies and mixed financial holding companies

     

    Member States shall require that all persons who effectively run the insurance holding company or the mixed financial holding company are fit and proper to perform their duties.

     

    Article 42 shall apply mutatis mutandis."

    Amendment  111

    Proposal for a directive – amending act

    Article 3 a – point 20 (new)

    Directive 2009/138/EC

    Article 258 – paragraphs 1 and 2

     

    Text proposed by the Commission

    Amendment

     

    (20) In Article 258, paragraphs 1 and 2 are replaced by the following:

     

    "1. Where the insurance or reinsurance undertakings in a group do not comply with the requirements referred to in Articles 218 to 246 or where the requirements are met but solvency may nevertheless be jeopardised or where the intra-group transactions or the risk concentrations are a threat to the financial position of the insurance or reinsurance undertakings, the following shall require the necessary measures in order to rectify the situation as soon as possible:

     

    (a) the group supervisor with respect to the insurance holding company and mixed financial holding company;

     

    (b) the supervisory authorities with respect to the insurance and reinsurance undertakings.

     

    Where, in the case referred to in point (a) of the first subparagraph, the group supervisor is not one of the supervisory authorities of the Member State in which the insurance holding company or mixed financial holding company has its head office, the group supervisor shall inform those supervisory authorities of its findings with a view to enabling them to take the necessary measures.

     

    Where, in the case referred to in point (b) of the first subparagraph, the group supervisor is not one of the supervisory authorities of the Member State in which the insurance or reinsurance undertaking has its head office, the group supervisor shall inform those supervisory authorities of its findings with a view to enabling them to take the necessary measures.

     

    Without prejudice to paragraph 2, Member States shall determine the measures which may be taken by their supervisory authorities with respect to insurance holding companies and mixed financial holding companies.

     

    The supervisory authorities concerned, including the group supervisor, shall where appropriate coordinate their enforcement measures.

     

    2. Without prejudice to their criminal law provisions, Member States shall ensure that sanctions or measures may be imposed on insurance holding companies and mixed financial holding companies which infringe laws, regulations or administrative provisions enacted to implement this Title, or on the person effectively managing those companies. The supervisory authorities shall cooperate closely to ensure that such sanctions or measures are effective, especially when the central administration or main establishment of an insurance holding company or mixed financial holding company is not located at its head office."

    Amendment  112

    Proposal for a directive – amending act

    Article 3 a – point 21 (new)

    Directive 2009/138/EC

    Articles 262

     

    Text proposed by the Commission

    Amendment

     

    (21) Article 262 is replaced by the following:

     

    "Article 262

     

    Parent undertakings outside the Union: absence of equivalence

     

    1. In the absence of equivalent supervision referred to in Article 260, Member States shall apply to the insurance and reinsurance undertakings either Articles 218 to 258, mutatis mutandis and with the exception of Articles 236 to 243, or one of the methods set out in paragraph 2.

     

    The general principles and methods set out in Articles 218 to 258 shall apply at the level of the insurance holding company, mixed financial holding company, third-country insurance undertaking or third-country reinsurance undertaking.

     

    For the sole purpose of the group solvency calculation, the parent undertaking shall be treated as if it were an insurance or reinsurance undertaking subject to the same conditions as laid down in Title I, Chapter VI, Section 3, Subsections 1, 2 and 3 as regards the own funds eligible for the Solvency Capital Requirement and to either of the following:

     

    (a) a Solvency Capital Requirement determined in accordance with the principles of Article 226 where it is an insurance holding company or mixed financial holding company;

     

    (b) a Solvency Capital Requirement determined in accordance with the principles of Article 227, where it is a third-country insurance undertaking or a third-country reinsurance undertaking.

     

    2. Member States shall allow their supervisory authorities to apply other methods which ensure appropriate supervision of the insurance and reinsurance undertakings in a group. Those methods must be agreed by the group supervisor, after consulting the other supervisory authorities concerned.

     

    The supervisory authorities may in particular require the establishment of an insurance holding company which has its head office in the Union, or a mixed financial holding company which has its head office in the Union and apply this Title to the insurance and reinsurance undertakings in the group headed by that insurance holding company or mixed financial holding company.

     

    The methods chosen shall allow the objectives of the group supervision as defined in this Title to be achieved and shall be notified to the other supervisory authorities concerned and the Commission."

    Amendment  113

    Proposal for a directive – amending act

    Article 3 a – point 22 (new)

    Directive 2009/138/EC

    Articles 263 – paragraphs 1 and 2

     

    Text proposed by the Commission

    Amendment

     

    (23) In Article 263, the first and second paragraphs are replaced by the following:

     

    "Where the parent undertaking referred to in Article 260 is itself a subsidiary of an insurance holding company or mixed financial holding company having its head office outside the Union or of a third-country insurance or reinsurance undertaking, Member States shall apply the verification provided for in Article 260 only at the level of the ultimate parent undertaking which is a third-country insurance holding company, a third country mixed financial holding company, a third-country insurance undertaking or a third-country reinsurance undertaking.

     

    However, Member States shall allow their supervisory authorities to decide, in the absence of equivalent supervision referred to in Article 260, to carry out a new verification at a lower level where a parent undertaking of insurance or reinsurance undertakings exists, whether a third-country insurance holding company, a third country mixed financial holding company, a third-country insurance undertaking or a third-country reinsurance undertaking."

    Amendment  114

    Proposal for a directive – amending act

    Article 3 b (new)

    Text proposed by the Commission

    Amendment

     

    Article 3b

     

    Review

     

    Directive 2002/87/EC shall be fully revised by 31 December 2011. Within the context of that revision, the scope of that Directive shall be reviewed. The revision shall also focus on the role and function of systemically relevant financial conglomerates, non-regulated entities and special purpose vehicles, and exclusions from the scope of that Directive in Article 3.

    Amendment  115

    Proposal for a directive – amending act

    Article 4 – paragraph 1 – subparagraph 2

    Text proposed by the Commission

    Amendment

    They shall apply those provisions from [1 July 2011].

    They shall apply those provisions from 31 October 2011.

    Justification

    The deadline of 1 July 2011 is too short to allow for national‑level implementation of a directive, given the length of time needed for transposition.

    Amendment  116

    Proposal for a directive – amending act

    Annex I – point 15

    Directive 98/78/EC

    Annex I – section 2.2 – title

     

    Text proposed by the Commission

    Amendment

    2.2 Intermediate insurance holding companies

    2.2 Intermediate insurance holding companies and intermediate mixed financial holding companies

    Amendment  117

    Proposal for a directive – amending act

    Annex I – point 18

    Directive 98/78/EC

    Annex II – point 2 – paragraph 2

     

    Text proposed by the Commission

    Amendment

    Where other insurance holding companies or non-member country insurance or reinsurance undertakings hold successive participations in the insurance holding company or non-member country insurance or reinsurance undertaking, Member States may apply the calculations provided for in this Annex only at the level of the ultimate parent undertaking of the insurance undertaking or re-insurance undertaking which is an insurance holding company, a mixed financial holding company, a non-member-country insurance undertaking or a non-member-country re-insurance undertaking.

    Where insurance holding companies, mixed financial holding companies or non-member country insurance or reinsurance undertakings hold successive participations in the insurance holding company, mixed financial holding companies or non-member country insurance or reinsurance undertaking, Member States may apply the calculations provided for in this Annex only at the level of the ultimate parent undertaking of the insurance undertaking or re-insurance undertaking which is an insurance holding company, a mixed financial holding company, a non-member-country insurance undertaking or a non-member-country re-insurance undertaking.

    Amendment  118

    Proposal for a directive – amending act

    Annex I – point 19

    Directive 98/78/EC

    Annex II – point 3 – paragraph 1

     

    Text proposed by the Commission

    Amendment

    3. The competent authorities shall ensure that calculations analogous to those described in Annex I are carried out at the level of the insurance holding company, or mixed financial holding company.

    3. The competent authorities shall ensure that calculations analogous to those described in Annex I are carried out at the level of the insurance holding company, mixed financial holding company, non-member country insurance undertaking or non-member country reinsurance undertaking.

    Amendment  119

    Proposal for a directive – amending act

    Annex I – point 19

    Directive 98/78/EC

    Annex II – point 3 – paragraph 3 – introductory part

     

    Text proposed by the Commission

    Amendment

    For the sole purpose of this calculation, the parent undertaking shall be treated as if it were an insurance undertaking subject to the following conditions:

    For the sole purpose of this calculation, the parent undertaking shall be treated as if it were an insurance undertaking or reinsurance undertaking subject to the following conditions:

    Amendment  120

    Proposal for a directive – amending act

    Annex III

    Directive 2006/48/EC

    Annex X – part 3 – section 3 – point 30

     

    Text proposed by the Commission

    Amendment

    30. When an Advanced Measurement Approach is intended to be used by the EU parent credit institution and its subsidiaries, or by the subsidiaries of an EU parent financial holding company or an EU parent mixed financial holding company, the application shall include a description of the methodology used for allocating operational risk capital between the different entities of the group.

    30. When an Advanced Measurement Approach is intended to be used by the EU parent credit institution and its subsidiaries, the EU parent financial holding company and its subsidiaries or an EU parent mixed financial holding company and its subsidiaries, the application shall include a description of the methodology used for allocating operational risk capital between the different entities of the group.

    • [1]  OJ C 62, 26.2.2011, p. 1.

    EXPLANATORY STATEMENT

    The Commission intends to improve the supplementary supervision of financial entities in a financial conglomerate in two steps. In the first step the Commission adopted a proposal for a Directive amending the Directives linked to supplementary supervision, in particular Directives 98/78/EC, 2002/87/EC and 2006/48/EC. This proposal deals with the single most urgent technical issue based on a limited review of the existing Directives and it is the subject of this report. In the second step the Commission intends to start a more fundamental review, in the context of developments regarding supplementary supervision. That review is expected to take place at the end to 2011.

    The purpose of the Commission's proposal is to provide a so called "quick fix" for a situation that manifested itself in a more problematic way during the financial crisis, but which has been known for almost a decade. It is useful for supervisors to be able to supervise mixed financial holding companies in a similar way as financial holding companies (banking sector) and insurance holding companies (insurance sector). Although the present Directives do not seem to prohibit Member States to adapt their legislation to exert this power over these mixed financial holding companies, a European coordination is useful in order to make this mandatory. In this light, the proposal should have been part of the full review next year.

    The Council has arrived to a common view of their amendments for the existing Directives linked to the supplementary supervision. It should be emphasised that the Council proposes to push back the deadline for implementation to a date not earlier than the implementation deadline for Solvency II. With the expected amendment in Omnibus II on the implementation deadline, this implies a full implementation by Member States not earlier than 1 January 2013. In that case, the timeframe of the full review and the implementation of this Directive will collide in time and that again raises questions now about the need, use and relevance for this Directive under these conditions. It should be noted, however, that the proposed application date proposed by the Commission (1 July 2011) is far from realistic.

    This Report includes the Parliament's amendments to the Commission proposal. The amendments are also correlated with most of the Council amendments.

    The main amendments concern the following issues:

    a)        "Lisbonising" of the Financial Conglomerates Directive;

    b)        amending Directive 2009/138/EC on Solvency II in a similar way as is proposed for Directive 98/78/EC (Article 3a (new));

    c)        ensuring that the new European Supervisory Authorities will issue general guidelines regarding the supervision of the financial conglomerates through the Joint Committee;

    d)        improving the transparency of the supervisory activity on the financial conglomerates, including the list and structure of financial conglomerates which will be published.

    e)        defining and including mixed financial holding companies in the supplementary supervision;

    f)         introducing stress testing at the level of each financial conglomerate;

    g)        including alternative investment fund managers into the scope.

    OPINION of the Committee on Legal Affairs (1.3.2011)

    for the Committee on Economic and Monetary Affairs

    on the proposal for a directive of the European Parliament and of the Council amending Directives 98/78/EC, 2002/87/EC and 2006/48/EC as regards the supplementary supervision of financial entities in a financial conglomerate
    (COM(2010)0433 – C7‑0203/2010 – 2010/0232(COD))

    Rapporteur: Sebastian Valentin Bodu

    SHORT JUSTIFICATION

    Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 (the ‘Financial Conglomerates Directive’) introduced supplementary and consolidated supervision of financial groups. The objective of that supplementary supervision was to control the potential risks arising from double gearing (i.e. the multiple use of capital) and so‑called group risks: the risk of contagion, management complexity, concentration and conflicts of interest, which could arise when several licences for different financial services are combined.

    Whilst the directives relating to banking activities and insurance activities aim to constitute sufficient capital buffers to protect customers and policyholders, the Financial Conglomerates Directive regulates the supplementary supervision of group risks.

    The primary aim of this proposal is to ensure appropriate supplementary supervision, i.e. to plug the unintended gaps that have evolved in supplementary supervision owing to the definitions in the sectoral directives, namely the Capital Requirements Directive and the insurance directives. Given that the consolidated/group supervision in the sectoral directives is applied only to financial/insurance holding companies and the sectoral provisions do not refer to mixed financial holding companies, a financial/insurance holding company changing structure and becoming a mixed financial holding company will only be subject to supplementary supervision under the Financial Conglomerates Directive, and the consolidated/group supervision at the ultimate parent level will be lost. Thus, supervisory authorities have to choose (in terms of applying – or not – a waiver in determining whether a group is a financial conglomerate) if they wish to continue to classify companies as financial/insurance holding companies in order to keep consolidated/group supervision, or if they want to apply ‘only’ supplementary supervision, under the Financial Conglomerates Directive.

    The Financial Conglomerates Directive supplements the Capital Requirements Directive and the insurance directives as regards additional supervision at the top level of a group. To that end, it also contains provisions for coordination among different supervisors of a group. The Financial Conglomerates Directive defines the relevant competent authority and requires the coordinator (the top level supervisor) to consult this authority as regards certain supervisory questions. However, the current provisions leave room for different interpretations as regards the identification of the relevant competent authorities. An extensive interpretation results in a high number of authorities that must be consulted by the coordinator at the financial conglomerate level. This may undermine the effective and efficient coordination of the work to be carried out by the ‘college’ consisting of a coordinator and the relevant competent authorities.

    In order to allow for still further convergence of supervisory practices, a possibility for the European Banking Authority and the European Insurance and Occupational Pensions Authority to issue guidelines is introduced. This should reflect the supplementary nature of the Directive. By way of example, when assessing risk concentrations on a group‑wide basis relating to several risk types potentially materializing throughout the group (interest rate risk, market risk, etc.), this assessment should complement the specific supervision of, for example, large exposures as provided for in the Capital Requirements Directive. The proposal is in keeping with the principle of proportionality and subsidiarity and underscores the fact that only European Union legislation can ensure that financial conglomerates operating in more than one Member State are subject to the same requirements and supervision.

    AMENDMENTS

    The Committee on Legal Affairs calls on the Committee on Economic and Monetary Affairs, as the committee responsible, to incorporate the following amendments in its report:

    Amendment  1

    Proposal for a directive – amending act

    Article 1 – point 4

    Directive 98/78/EC

    Article 4 – paragraph 2

     

    Text proposed by the Commission

    Amendment

    2. Where insurance undertakings or reinsurance undertakings authorised in two or more Member States have as their parent undertaking the same insurance holding company, non-member-country insurance undertaking, non-member country reinsurance undertaking, mixed financial holding company or mixed-activity insurance holding company, the competent authorities of the Member States concerned may reach an agreement as to which of them shall be responsible for exercising supplementary supervision.

    2. Where insurance undertakings or reinsurance undertakings authorised in two or more Member States have as their parent undertaking the same insurance holding company, non-member-country insurance undertaking, non-member country reinsurance undertaking, mixed financial holding company or mixed-activity insurance holding company, the competent authorities of the Member States concerned may reach an agreement as to which of them shall be responsible for exercising supplementary supervision. Where the authorities are unable to reach an agreement, the European Supervisory Authority (European Banking Authority), the European Supervisory Authority (European Insurance and Occupational Pensions Authority) or both, as appropriate, acting through the Joint Committee of the European Supervisory Authorities, shall arbitrate between the competent authorities, and if necessary settle the disagreement by issuing a binding decision.

    Amendment  2

    Proposal for a directive – amending act

    Article 2 – point 3

    Directive 2002/87/EC

    Article 6 – paragraph 4 – subparagraph 2

     

    Text proposed by the Commission

    Amendment

    When applying method 2 (Deduction and aggregation) referred to in Annex I, the calculation shall take account of the proportional share held by the parent undertaking or undertaking which holds a participation in another entity of the group. ‘Proportional share’ means the proportion of the subscribed capital which is directly or indirectly held by that undertaking.

    When applying method 2 (Deduction and aggregation) referred to in Annex I, the calculation shall take account of the proportional share held by the parent undertaking or undertaking which holds a participation in another entity of the group. ‘Proportional share’ means the proportion of the subscribed capital which is directly or indirectly held by that undertaking or, where there are multiple voting shares, of the voting rights pertaining to the shareholders.

    Justification

    There may sometimes be multiple voting shares (several votes per share); what matters in such cases are the votes and not the capital share held – i.e. the degree of control exercised.

    Amendment  3

    Proposal for a directive – amending act

    Article 3 – point 13

    Directive 2006/48/EC

    Article 4 – paragraph 1 – subparagraph 2

     

    Text proposed by the Commission

    Amendment

    They shall apply those provisions from [1 July 2011].

    They shall apply those provisions from [31 October 2011].

    Justification

    The deadline of 1 July 2011 is too short to allow for national‑level implementation of a directive, given the length of time needed for transposition.

    PROCEDURE

    Title

    Amendments to Directives 98/78/EC, 2002/87/EC and 2006/48/EC as regards the supplementary supervision of financial entities in a financial conglomerate

    References

    COM(2010)0433 – C7-0203/2010 – 2010/0232(COD)

    Committee responsible

    ECON

    Opinion by

           Date announced in plenary

    JURI

    7.9.2010

     

     

     

    Rapporteur

           Date appointed

    Sebastian Valentin Bodu

    27.10.2010

     

     

    Discussed in committee

    27.1.2011

     

     

     

    Date adopted

    28.2.2011

     

     

     

    Result of final vote

    +:

    –:

    0:

    18

    0

    0

    Members present for the final vote

    Raffaele Baldassarre, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Alexandra Thein, Cecilia Wikström, Tadeusz Zwiefka

    Substitute(s) present for the final vote

    Piotr Borys, Sergio Gaetano Cofferati, Sajjad Karim, Eva Lichtenberger, Toine Manders

    PROCEDURE

    Title

    Amendments to Directives 98/78/EC, 2002/87/EC and 2006/48/EC as regards the supplementary supervision of financial entities in a financial conglomerate

    References

    COM(2010)0433 – C7-0203/2010 – 2010/0232(COD)

    Date submitted to Parliament

    16.8.2010

    Committee responsible

           Date announced in plenary

    ECON

    7.9.2010

    Committee(s) asked for opinion(s)

           Date announced in plenary

    JURI

    7.9.2010

     

     

     

    Rapporteur(s)

           Date appointed

    Theodor Dumitru Stolojan

    6.9.2010

     

     

    Discussed in committee

    26.10.2010

    25.1.2011

    28.2.2011

     

    Date adopted

    22.3.2011

     

     

     

    Result of final vote

    +:

    –:

    0:

    42

    0

    0

    Members present for the final vote

    Sharon Bowles, Udo Bullmann, Pascal Canfin, Rachida Dati, Leonardo Domenici, Derk Jan Eppink, Diogo Feio, Markus Ferber, Elisa Ferreira, Vicky Ford, Ildikó Gáll-Pelcz, José Manuel García-Margallo y Marfil, Jean-Paul Gauzès, Sven Giegold, Sylvie Goulard, Jürgen Klute, Rodi Kratsa-Tsagaropoulou, Philippe Lamberts, Werner Langen, Astrid Lulling, Íñigo Méndez de Vigo, Sławomir Witold Nitras, Ivari Padar, Alfredo Pallone, Olle Schmidt, Edward Scicluna, Peter Simon, Peter Skinner, Theodor Dumitru Stolojan, Ivo Strejček, Marianne Thyssen, Ramon Tremosa i Balcells, Corien Wortmann-Kool

    Substitute(s) present for the final vote

    Sophie Auconie, Lajos Bokros, David Casa, Robert Goebbels, Enrique Guerrero Salom, Carl Haglund, Olle Ludvigsson, Thomas Mann, Gianluca Susta

    Substitute(s) under Rule 187(2) present for the final vote

    Jiří Maštálka, Sylvana Rapti

    Date tabled

    28.3.2011