Explanatory Memorandum to COM(2007)361 - Taking-up and pursuit of the business of Insurance and Reinsurance - Solvency II - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2007)361 - Taking-up and pursuit of the business of Insurance and Reinsurance - Solvency II. |
|---|---|
| source | COM(2007)361  |
| date | 10-07-2007 |
The economic and social importance of (re)insurance is such that intervention by public authorities, in the form of prudential supervision, is generally accepted to be necessary. Insurers do not only provide protection against future events that may result in a loss; they also channel household savings into the financial markets and into the real economy.
Insurers and reinsurers must meet certain solvency requirements to ensure that they can deliver on their promises to policyholders. The present solvency rules are outdated. They are not risk sensitive, they leave too much scope to Member States for national variations, they do not properly deal with group supervision and they have meanwhile been superseded by industry, international and cross-sectoral developments. This is the reason why a new solvency regime, called Solvency II, which fully reflects the latest developments in prudential supervision, actuarial science and risk management and which allows for updates in the future is necessary.
The Solvency II project is one of the main outstanding items from the Financial Services Action Plan (1999-2005). Solvency I raised the minimum guarantee fund in 2002 but was just a stop-gap measure, needed to improve policyholder protection whilst a more fundamental reform project was undertaken. Solvency II is the result of this process, proposing a wider revision of the financial position of (re)insurance undertakings.
Following the Commission's Better Regulation and Simplification agendas, the revision of the present solvency regime has been used as an occasion to recast 13 (re)insurance Directives into one single document in which the new solvency rules have been integrated.
Contents
- 2. CONSULTATION OF STAKEHOLDERS AND INTERESTED PARTIES
- b) Impact Assessment
- 3. LEGISLATIVE APPROACH AND LEGAL BASIS
- b) Legal Basis
- 4. SCOPE OF APPLICATION
- 5. COMMENTS ON THE ARTICLES
- a) Qualitative Requirements and supervision
- Supervisory Authorities and General Rules - Articles 27 to 38
- System of Governance - Articles 41 to 49
- b) Supervisory reporting and public disclosure
- Information to be provided for supervisory purposes - Article 35
- Public Disclosure - Articles 50 to 55
- d) Quantitative requirements
- Nature Quality On the balance-sheet (basic own funds) Off the balance-sheet (ancillary own funds)
- General provisions for the Solvency Capital Requirement, using the standard formula or an internal model
- Solvency Capital Requirement standard formula
- Internal models
- e) Group Supervision - Articles 219 to 277
- Main Improvements Applicable to All (Re)insurance Groups
- Additional Improvements Applicable to Groups Using Group Support
- General Observation: Group Supervision Not only Supplementary
- 6. IMPLEMENTING MEASURES
a) Consultation of stakeholders and interested parties
Throughout the project the Commission Services have maintained close contact with interested parties. The Commission Solvency Expert Working Group, composed of Member State experts, has met 3 to 5 times a year to discuss Solvency II since the project was started in 2004.
The Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS) has been an important source of technical expertise for the Solvency II project. They advised the Commission in the design of the new solvency regime and organised a number of quantitative impact studies. Before sending its advice to the Commission, CEIOPS publicly consulted on its draft advice. Its contribution in the project has been substantial, and its involvement will also be needed later on in the process.
In June 2006, DG MARKT organised a public hearing which drew 191 participants. In addition, the Commission Services ran an online public questionnaire published on 'Your Voice in Europe' which attracted 147 responses. DG MARKT also sent a detailed questionnaire to 58 undertakings from across Europe, and this was followed up by face-to-face interviews with a number of those undertakings (mainly small or medium-sized).
A number of organisations were asked to help the Commission in assessing the potential impact of the new solvency regime: the European Central Bank (financial stability), the (re)insurance (CEA/AISAM/ACME) industry (insurance products and markets), FIN-USE (consumers) and CEIOPS (supervisory authorities). In addition DG ECFIN prepared a report on the impact of Solvency II on macro-economy.
The analysis conducted and the feedback received from stakeholders and interested parties confirm that the introduction of a new economic risk-based solvency regime, making full use of the Lamfalussy architecture, is the most effective and efficient means to meet the general objectives of the Solvency II project. Namely, to deepen the integration of the EU (re)insurance market, enhance protection of policyholders and beneficiaries, to improve the international competitiveness of EU insurers and reinsurers, and to promote better regulation.
A system based on sound economic valuation principles will reveal the true financial position of insurers, increasing transparency and confidence in the whole sector. Introducing risk-based regulatory requirements will ensure that a fair balance is struck between strong policyholder protection on the one hand and reasonable costs for insurers on the other.
In particular, capital requirements will reflect the specific risk-profile of each (re)insurance undertaking. Insurers that manage their risks well - because they have rigorous policies, use appropriate risk-mitigation techniques, or diversify their activities - will be rewarded and allowed to hold less capital than under the current EU regime. On the other hand, poorly managed insurers or insurers with a larger risk appetite will be asked to hold more capital in order to ensure that policyholder claims will be met when they fall due.
Solvency II will result in much greater emphasis being placed on sound risk management and robust internal controls. The responsibility for an insurers' financial soundness will be pushed back firmly to its management, where it belongs. Insurers will be given more freedom – i.e. they will be required to meet sound principles rather than arbitrary rules. Regulatory requirements and industry practice will be aligned and insurers will be rewarded for introducing risk and capital management systems that best fit their needs and overall risk profile. In return, they will be subject to strengthened supervisory review. The new regime will also enhance transparency and public disclosure. Insurers applying best practice will be further rewarded by investors, market participants and consumers.
However, the introduction of a new economic risk based approach may be accompanied by some short-term side–effects. Solvency II may result in a reduction of coverage for some types of insurance, as risks will receive a regulatory treatment in line with their true economic cost (for example traditional financial guarantees embedded in long-term saving products). Similarly, increased transparency may result in a reduction in cross-subsidization between business lines (e.g. from motor insurance to health and accident) and increase prices in certain areas or for specific categories of higher risk policyholders. While this is optimal from the perspective of the creation of an efficient and transparent insurance sector, the potential social impact of any resulting changes in the behaviour of insurers will need to be carefully monitored and debated in order to ensure that long-term sustainable solutions are found to tackle any issues that arise following the introduction of the new solvency regime. Insurers and national authorities should be encouraged to consider whether any such changes are likely to occur and if so how any resulting negative impacts can be mitigated. Finally, whereas the impact of Solvency II on life insurers' investment behaviour is not expected to be significant, it cannot be excluded that non-life insurers will increase their investment in bonds at the expense of equity. However, non-life insurers' holdings in equity only account for a limited share of the EU-25 securities capitalisation (4%) and a smooth transition to the new asset allocation is expected.
a) Legislative approach
The following 13 Directives in the area of life and non-life insurance, reinsurance, insurance groups and winding up were recast into a single text at the occasion of the new Solvency II amendments to be made:
- Council Directive 64/225/EEC of 25 February 1964 on the abolition of restrictions on freedom of establishment and freedom to provide services in respect of reinsurance and retrocession i;
- First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance i;
- Council Directive 73/240/EEC of 24 July 1973 abolishing restrictions on freedom of establishment in the business of direct insurance other than life assurance i;
- Council Directive 76/580/EEC of 29 June 1976 amending Directive 73/239/EEC on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance i;
- Council Directive 78/473/EEC of 30 May 1978 on the coordination of laws, regulations and administrative provisions relating to Community co-insurance i;
- Council Directive 84/641/EEC of 10 December 1984 amending, particularly as regards tourist assistance, the First Directive 73/239/EEC on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance i;
- Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance i;
- Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC i;
- Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) i;
- Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group i;
- Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings i;
- Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance i;
- Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance i.
As a complete rewrite of the existing Directives would have gone beyond a recast, the recast follows the structure of the existing (re)insurance Directives. The new Solvency II provisions are therefore introduced in different Chapters and Titles of the draft Directive and are shown in grey character. No substantive changes have been made to the existing Directives that have been recast except for those changes that are necessary in order to introduce a new solvency regime.
The proposal applies the ‘re-casting technique’ (Inter-institutional Agreement 2002/C 77/01) which enables substantive amendments to existing legislation without a self-standing amending directive. The recast reduces complexity and makes the EU legislation more accessible and comprehensible. Amendments of a non-substantive nature have been made to a large number of provisions of the existing Directives in order to improve the drafting and readability. Articles or parts of articles which have become obsolete have been deleted. All changes are clearly marked in the text.
The new solvency provisions are principles based and follow the 4 level structure of the Lamfalussy financial services architecture. The principles will be further developed through implementing measures. The new Lamfalussy architecture will enable the new solvency regime to keep pace with future market and technological developments as well as international developments in accounting and (re)insurance regulation.
The proposal is based on Articles 47 i and 55 of the Treaty, which is the legal basis to adopt Community measures aimed at achieving an internal market in financial services. The chosen instrument is a Directive as this is the most appropriate legal instrument to achieve the objectives. The proposed new provisions do not go beyond what it is necessary to achieve the objectives pursued.
The scope of application of the present Directives has not been changed. The proposal therefore applies to all life and non-life insurance undertakings and reinsurance undertakings. However, the present exclusion of small mutual undertakings has been extended to all small insurance undertakings defined in Article 4, regardless of their legal form. The Directive does not apply to pension funds covered by Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 i on the activities and supervision of institutions for occupational retirement provision. A review of this Directive will take place in 2008. At that time, the Commission will examine whether and how suitable solvency requirements can or should be developed for pension funds. Similarly the Directive does not change the regime applicable to financial conglomerates. However, if any issues are identified they will be addressed in the course of the review of the Financial Conglomerates Directive (2002/87/EC) which will take place in 2008.
The comments only relate to those Articles which are new or which have changed as a result of the introduction of the new solvency rules.
The qualitative requirements and rules on supervision applicable to (re)insurance undertakings ("Pillar II" of the Solvency II framework) are laid down in 2 sections, Supervisory Authorities and General Rules and System of Governance.
Main objective of supervision – Article 27
The main objective of (re)insurance regulation and supervision is adequate policyholder protection. Other objectives such as financial stability and fair and stable markets should also be taken into account but should not undermine that main objective.
General principles of supervision – Article 28
Supervision shall be based on a prospective and risk-oriented approach. Solvency II therefore adopts an economic risk-based approach which allows for a system that reflects the true risk profile of (re)insurance undertakings. That system should rely on sound economic principles and make optimal use of the information provided by financial markets.
Particular care has been taken to ensure that the new solvency regime is not too burdensome for small and medium-sized (re)insurance undertakings. Importance is therefore attached to the principle of proportionality, which applies to all requirements of this Directive but which is particularly relevant for the application of the quantitative and qualitative requirements of the solvency regime and the rules on supervision. It will be further specified in the implementing measures.
Transparency and accountability – Article 30
Transparency and accountability contributes to the legitimacy and integrity of the supervisory authorities and the credibility of the system of supervision. This Article therefore lays down that supervisory authorities shall conduct their tasks in a transparent and accountable manner. Disclosures foster transparency and allow a meaningful comparison of the approaches adopted by Member States. An important aspect of transparency and accountability is to provide for transparent procedures regarding the appointment and dismissal of the members of the board or managing body of the supervisory authorities.
Supervisory powers – Article 34
In order to ensure the efficiency of supervision, the supervisory authorities must be fully empowered to carry out their tasks. Article 34 therefore sets out that Member States must ensure that supervisory authorities have the power to take any measure necessary to ensure that undertakings comply with the regulatory requirements set by this Directive as well as to prevent and remedy any irregularities. In this context, it is particularly important that supervisory powers are also available with regard to outsourced and sub-outsourced activities. All supervisory powers shall be applied in a timely and proportionate manner.
In order to ensure effective supervision, it is essential that supervision is carried out both on-site and off-site; supervisory authorities are therefore given the power to conduct on-sight inspections at the premises of an insurer or reinsurer.
Supervisory Review Process – Article 36
A failure to comply with the qualitative and quantitative requirements may have severe consequences for the financial soundness of an insurer or reinsurer. The supervisory review therefore aims to identify institutions with financial, organisational or other features susceptible to producing a higher risk profile.
Under the Supervisory Review Process (SRP), the supervisory authorities review and evaluate the strategies, processes and reporting procedures established by insurers and reinsurers to comply with this Directive as well as the risks the undertaking faces or may face and its ability to assess those risks. The review also comprises an assessment of the adequacy of the undertakings' methods and practices to identify possible events or future changes in economic conditions that could have unfavourable effects on its overall financial standing. In order to ensure the efficiency of the SRP, it is important that supervisory authorities are given the power to remedy the weaknesses and deficiencies identified in the supervisory review including a follow-up process of their findings.
It is moreover essential that supervisory authorities have appropriate monitoring tools that enable deteriorating financial conditions to be identified and remedied. The results of the SRP are very useful for the supervisory authorities in prioritising future work, to ensure an appropriate degree of consistency in supervisory approaches between supervisory authorities and to provide feedback to the undertaking.
Capital add-ons – Article 37
The starting point for the adequacy of the quantitative requirements in the (re)insurance sector is the solvency capital requirement. Supervisory authorities may therefore require (re)insurance undertakings only under strictly defined exceptional circumstances to have more capital following the Supervisory Review Process. Even though the standard formula aims at capturing the risk profile of most (re)insurance undertakings in the Community, there may be some cases where the standardised approach might not entirely reflect the very specific risk profile of an undertaking.
In case of material deficiencies in the full or partial internal model (see below point e) or material governance failures it is essential that the supervisory authorities ensure that the undertaking concerned makes all efforts to remedy the deficiencies that led to the imposition of the capital add-on for the sake of policyholder protection. The supervisory authority is obliged to examine the undertaking's progress in addressing its deficiencies at least once a year. Only in case the deviation of such an undertaking's risk profile is material and the development of a partial or full internal model is inefficient, the capital add-on may have a permanent character.
The more harmonised and economic approach adopted for the (re)insurance sector as compared to the Capital Requirements Directive duly justifies the more harmonised approach of capital increases.
Responsibility of the administrative or management body – Article 40
(Re)insurance undertakings will be required to meet principles rather than rules, which puts more responsibility on management than is presently the case.
The Directive states clearly that the administrative or management body of the (re)insurance undertaking has the ultimate responsibility for the undertaking's compliance with this Directive.
Governance system and general requirements - Article 41
Consistency of governance requirements across the banking, securities and (re)insurance sectors is essential to ensure cross-sectoral consistency. The governance requirements set out in this Directive aim at achieving this objective.
Robust governance requirements are a pre-requisite for an efficient solvency system. Some risks may only be addressed through governance requirements rather than by setting quantitative requirements. A robust governance system is hence of key importance for the adequate management of the insurer and critical to the effectiveness of the supervisory system.
The governance system includes compliance with the requirements on fit and proper, risk management, the own risk and solvency assessment, internal control, internal audit, the actuarial function and outsourcing. The implementing measures on the governance requirements will specify the proportionality principle.
The identification of governance functions in the Directive should help undertakings in deciding how to implement the governance system. A function is an administrative capacity to undertake particular tasks. The identification of a particular function does not prevent the undertaking from freely deciding how to organise this function in practice unless this is otherwise specified in this Directive. This should not lead to unduly burdensome requirements because account should be taken of the nature, scale and complexity of the operations of the undertaking. The governance functions can therefore be staffed by own staff or can rely on advice from outside experts or can be outsourced to experts within the limits set by this Directive. Furthermore, in smaller and less complex undertakings, more than one function can be carried out by one person or organisational unit.
In order to make the governance system work well, undertakings are required to have written policies in place which clearly set out how they deal with internal control, internal audit, risk management and, where relevant, with outsourcing. It is essential that the administrative or management body is actively involved in the governance system. The written policies should therefore be approved by the administrative or management body and be revised at least annually or before any significant change is implemented in the system. The amendment of the policies prior to the system change is essential because the undertaking would otherwise already be in non-compliance with its internal strategies and processes. It is the role of the supervisory authority in the SRP to review and evaluate the governance system.
Own Risk and Solvency Assessment (ORSA) – Article 44
As part of their risk management system, all (re)insurance undertakings should have, as an integral part of their business strategy, a regular practice of assessing their overall solvency needs with a view to their specific risk profile.
The ORSA has a twofold nature. It is an internal assessment process within the undertaking and is as such embedded in the strategic decisions of the undertaking. It is also a supervisory tool for the supervisory authorities, which must be informed about the results of the own risk and solvency assessment of the undertaking.
The ORSA does not require an undertaking to develop or apply a full or partial internal model. However, if the undertaking already uses an approved full or partial internal model for the calculation of the SCR, the output of the model should be used in the ORSA. The ORSA does not create a third solvency capital requirement. The ORSA should not be overly burdensome on small or less complex undertakings. The supervisory authority reviews the own risk and solvency assessment as part of the supervisory review process of the undertaking. The results of each ORSA conducted shall be reported to the supervisory authority as part of the information to be provided for supervisory purposes under Article 35.
Outsourcing – Articles 38 and 48
As outsourcing is becoming more and more relevant, it is important to adopt a more consistent approach in this area. In order to ensure effective supervision of outsourced activities, it is essential that the supervisory authorities of the outsourcing undertaking have a right to access all relevant data held by the outsourcing service provider as well as the right to conduct on-site inspections of the outsourced activity at the premises of the outsourcing service provider, regardless of whether the latter is a regulated or unregulated entity. In case the activity is outsourced to a service provider in a third country, it is necessary that the supervisory authority of the outsourcing undertaking has the right to access all relevant data held by the outsourcing service provider regardless of whether the latter is a regulated or unregulated entity. Outsourcing also comprises sub-outsourcing.
One way of achieving this, especially if the service provider is an unregulated entity, is paying particular attention to the contract between the outsourcing undertaking and the outsourcing service provider. Supervisory authorities must be informed in an adequate and timely manner prior to the outsourcing of important activities or to any subsequent material changes therein.
The requirements laid down in this Directive take into account the work of the Joint Forum and are consistent with the current rules and practices in the banking sector and the Markets in Financial Instruments Directive (2004/39/EC) and its application to credit institutions.
Supervisory reporting and public disclosure constitute 'Pillar III' of the Solvency II framework.
The proposal essentially maintains the current philosophy of the acquis, imposing on undertakings a general requirement to submit any information necessary for the purposes of supervision. However, in line with the Lamfalussy approach, the proposal introduces a number of key principles with which supervisory reporting must comply and allows the adoption of implementing measures with a view to ensuring convergence as appropriate.
The proposal requires undertakings to disclose annually a report covering essential and concise information on their solvency and financial condition. An exception is possible for individual capital add-ons for a transitional period. Undertakings are required to update the information disclosed where appropriate (specific provisions address cases of non compliance with Minimum Capital Requirement or Ssolcency Capital Requirement), and they are allowed to disclose additional information on a voluntary basis. Undertakings are required to have a policy on public disclosure, and must obtain approval from their administrative or management body on the solvency and financial condition report before publication. Finally, the proposal allows the adoption of implementing measures with a view to ensuring convergence as appropriate.
c) Promotion of supervisory convergence – Article 69
The Financial Service Committee identified the fostering of supervisory convergence of supervisory practices as one of the major challenges in the years to come. Even though a common regulatory framework is the basis a true level playing field can only be achieved through more consistent and common decision-making and enforcement practices among supervisors. Supervisory convergence includes in particular common and uniform day-to-day application of Community legislation and enhancing day-to-day consistent supervision and enforcement of the Single Market. Peer reviews and mediation mechanisms can play an important role in the fostering of supervisory convergence.
CEIOPS has a particular role in contributing to the consistent application of this Directive and to the convergence of supervisory practices throughout the Community. This Article therefore sets out that Member States must take the necessary measures to ensure that the supervisory authorities actively engage themselves in the activities of CEIOPS.
The quantitative requirements applicable to (re)insurance undertakings ("Pillar I" of the Solvency II framework) are laid down in six sections: valuation of assets and liabilities, technical provisions, own funds, Solvency Capital Requirement, Minimum Capital Requirement, and investments. The Pillar I requirements are based on an economic total balance sheet approach. This approach relies on an appraisal of the whole balance-sheet of insurance and reinsurance undertakings, on an integrated basis, where assets and liabilities are valued consistently. Such an approach implies that the amount of available financial resources of insurance and reinsurance undertakings should cover its overall financial requirements, i.e. the sum of un-subordinated liabilities and capital requirements. As a consequence of this approach, eligible own funds (see below) must be higher than the Solvency Capital Requirement.
Valuation of assets and liabilities – Article 73
Article 73 introduces valuation standards for all assets and liabilities, based upon the current IFRS definition of fair value. Implementing measures will be developed setting out how the fair value of specific balance-sheet items should be calculated, in order to ensure that these items are valued consistently across all Member States. With respect to liabilities, valuation standards do not take account of own credit standing, whilst with respect to assets, these standards take account of current credit and liquidity characteristics.
Technical provisions – Articles 74 to 84
Technical provisions need to be established in order for the undertaking to fulfil its (re)insurance obligations towards policyholders and beneficiaries. Their calculation will be based on the general provisions set out in Article 74:
- In particular, the calculation of technical provisions will be based on their current exit value. The current exit value reflects the amount an insurance or reinsurance undertaking would expect to have to pay today if it transferred its contractual rights and obligations immediately to another undertaking. The use of current exit value should not be intended to imply that an (re)insurance undertaking could, would or should actually transfer those obligations.
- The calculation of technical provisions must be market-consistent and undertaking-specific information will only be used in the calculation of technical provisions in so far as that information enables (re)insurance undertakings to better capture the characteristics of the underlying insurance portfolio.
Articles 75 to 78 and 80 to 84 describe the calculation of technical provisions. They will be calculated as the sum of a best estimate and a risk margin, except in the case of hedgeable risks arising from (re)insurance obligations (see below):
- The best estimate corresponds to the expected present value of future cash flows, taking into account all the cash in and out flows (adjusted for inflation), required to settle the (re)insurance obligations over their lifetime, including all expenses, future discretionary bonuses, embedded financial guarantees and contractual options. The calculation of the best estimate is to be based on sound actuarial techniques and good quality data and regularly checked against actual experience.
- The risk margin ensures that the overall value of the technical provisions is equivalent to the amount (re)insurance undertakings would expect to have to pay today if it transferred its contractual rights and obligations immediately to another undertaking; or alternatively, the additional cost, above the best estimate, of providing capital to support the (re)insurance obligations over the lifetime of the portfolio.
With respect to hedgeable risks – i.e. a risk that can be effectively neutralised by buying or selling financial instruments – the value of technical provisions is calculated directly, as a whole, and derived using the values of those financial instruments (see Article 75(4)).
With respect to non-hedgeable risks, the risk margin is calculated using the so-called cost-of-capital method (see Article 75(5)). In this case, the cost-of-capital rate used is the same for all undertakings (e.g. fixed percentage) and corresponds to the spread above the risk-free interest rate that a BBB-rated (re)insurance undertaking would be charged to raise eligible own funds.
Own funds –Articles 85 to 98
Own funds correspond to a (re)insurance undertakings' available financial resources which can serve as a buffer against risks and absorb financial losses, where necessary. The determination of the amounts of own funds eligible to cover the two capital requirements is based on a three-step process. Each step corresponds to a subsection: determination of own funds, classification of own funds, eligibility of own funds.
In a first step , the amounts of available own funds must be identified. Own funds are the sum of:
- items on the balance-sheet, or 'basic own fund items' (see Article 86);
- items not on the balance-sheet, or 'ancillary own fund items' (see Article 87).
Basic own funds comprise the economic capital (i.e. the excess of assets over liabilities, valued in accordance with Sections 1 and 2) and subordinated liabilities (as those liabilities can serve as capital, for instance in the case of winding-up).
Ancillary own funds comprise commitments that undertakings can call upon in order to increase their financial resources, such as members' calls and letters of credit. As those ancillary own funds do not fall under the valuation standards provided for in Sections 1 and 2, the determination of their amounts is subject to prior supervisory approval.
In a second step , as own fund items possess different qualities and provide for different levels of absorption of losses, those own fund items will be classified into three tiers, depending on their nature and the extent to which they meet five key criteria (i.e. subordination, loss-absorbency, permanence, perpetuality and absence of servicing costs), as set out in Article 92.
- The classification of own funds into tiers relies on qualitative criteria to be further specified through implementing measures (see Article 96); however, in order to facilitate that classification, a list of pre-classified items will also be laid down in those implementing measures.
Nature Quality On the balance-sheet (basic own funds) Off the balance-sheet (ancillary own funds)
High Tier Tier
Medium Tier Tier
Low Tier −
In a third step , as Tier 2 and Tier 3 items do not provide for full absorption of any losses in all circumstances, it seems necessary to limit their recognition for supervisory purposes. As set out in Article 97, two sets of limits apply to available own funds, in order to determine the amounts eligible for supervisory purposes:
- With respect to the Solvency Capital Requirement, the proportion of Tier 1 in the eligible own funds should reach at least 1/3, and the proportion of Tier 3 should be no higher than 1/3.
- With respect to the Minimum Capital Requirement, ancillary own fund items are not eligible, and the proportion of eligible Tier 2 items should be limited to ½.
Solvency Capital Requirement – Articles 99 to 124
Section 4 on the Solvency Capital Requirement is divided in three parts: the general presentation of that capital requirement, the Solvency Capital Requirement standard formula, and the use of internal models for solvency purposes.
General provisions for the Solvency Capital Requirement, using the standard formula or an internal model
The Solvency Capital Requirement corresponds to the economic capital a (re)insurance undertaking needs to hold in order to limit the probability of ruin to 0.5%, i.e. ruin would occur once every 200 years (see Article 100). The Solvency Capital Requirement is calculated using Value-at-Risk techniques, either in accordance with the standard formula, or using an internal model: all potential losses, including adverse revaluation of assets and liabilities, over the next 12 months are to be assessed. The Solvency Capital Requirement reflects the true risk profile of the undertaking, taking account of all quantifiable risks, as well as the net impact of risk mitigation techniques.
The Solvency Capital Requirement is to be calculated at least once a year, monitored on a continuous basis, and recalculated as soon as the risk profile of the undertaking deviates significantly; the Solvency Capital Requirement is to be covered by an equivalent amount of eligible own funds (see Article 99).
Articles 102 to 108 describe the objectives, architecture and overall calibration of the Solvency Capital Requirement standard formula. The 'modular' architecture, based on linear aggregation techniques, is further specified in Annex IV of the Directive. The risks captured in the various modules and sub-modules of the standard formula are defined in Articles 13, 103 and 104. The detailed specifications of those modules and sub-modules will be adopted through implementing measures, as they are likely to evolve over time.
The Solvency Capital Requirement standard formula aims at achieving the right balance between risk-sensitivity and practicality. It allows both for the use of undertaking-specific parameters, where appropriate (see Article 103(7)), and standardised simplifications for SMEs (see Article 107).
As the new valuation standards take due account of credit and liquidity characteristics of assets, as the Solvency Capital Requirement captures all quantifiable risks, and as all investments are subject to the 'prudent person' principle, quantitative investment limits and asset eligibility criteria will not be maintained. However, in the light of market developments, if new risks emerge which are not covered by the Solvency Capital Requirement standard formula, Article 108 i enables the Commission to adopt temporary implementing measures laying down investment limits and asset eligibility criteria whilst the formula is being updated.
Articles 109 to 124 describe the requirements applying to (re)insurance undertakings using or wishing to use a full or partial internal model in the calculation of the Solvency Capital Requirement. Before approval by the supervisory authorities is given to use an internal model, (re)insurance undertakings must submit an application (see Article 109) approved by the administrative or management body of the undertaking (see Article 113), demonstrating that they meet the use test, statistical quality standards, calibration standards, validation standards, and documentation standards (see Articles 117 to 122). Supervisory authorities must decide whether to accept or reject the application within six months of receipt of a complete application from an (re)insurance undertaking.
With respect to the use of partial internal models additional requirements are introduced that are designed to prevent cherry-picking by (re)insurance undertakings (see Article 110). In addition, Article 111 enables the Commission to adopt implementing measures adapting the standards, set out in Articles 117 to 122, with respect to partial internal models in order to take account of the limited scope of those models.
Article 116 gives supervisory authorities the power to require an (re)insurance undertaking calculating the Solvency Capital Requirement using the standard formula, to develop a partial or full internal model in the event that the Solvency Capital Requirement standard formula does not accurately capture the risk profile of that undertaking.
Minimum Capital Requirement – Articles 125 to 128
The Minimum Capital Requirementrepresents a level of capital below which policyholders' interests would be seriously endangered if the undertaking were allowed to continue to operate. In the event that the Minimum Capital Requirement is breached ultimate supervisory action is triggered, i.e. authorisation is withdrawn (see Articles 126 and 136). Undertakings are therefore required to hold eligible basic own funds to cover the Minimum Capital Requirement (see Article 125). As ultimate supervisory action may require authorisation by national courts, the Minimum Capital Requirement needs to be calculated quarterly, in accordance with a simple and robust formula, on the basis of auditable data.
Article 126 on the specific design and calibration of the Minimum Capital Requirement includes a short list of general principles. Pending the results of QIS3, an open approach has been adopted, as no final decision has been reached regarding the Minimum Capital Requirement.
In particular, the text enables the two following approaches to be tested:
- the Minimum Capital Requirement calculated using a simplified version of the standard formula (modular approach) taking account of life underwriting risk, non life underwriting risk and market risk, and calibrated to a one-year 90% Value-at-Risk;
- Minimum Capital Requirement calculated as a percentage of the Solvency Capital Requirement (compact approach), calibrated to 1/3 of the Solvency Capital Requirement.
For example, Article 126(1)c enables the Minimum Capital Requirement to be calibrated to a confidence level between 80% (as 1/3 of an Solvency Capital Requirement calibrated to a 99.5% VaR is equivalent to a 80% VaR, assuming a normal distribution) and 90% (the level used in the modular approach being tested).
So as to smooth the transition to the new regime (see Article 128), (re)insurance undertakings that comply with Solvency I at the date of entry into force of this Directive, but do not comply with the Minimum Capital Requirement, have one year in order to bring themselves into compliance with the new regime.
Investments – Articles 129 to 132
All investments held by (re)insurance undertakings (i.e. assets covering technical provisions, plus assets covering Solvency Capital Requirement and free assets) must be invested, managed and monitored in accordance with the 'prudent person' principle laid down in Article 129. The prudent person principle requires (re)insurance undertakings to invest assets in the best interest of policyholders, adequately match investments and liabilities, and pay due attention to financial risks, such as liquidity and concentration risk.
Introduction
The way (re)insurance groups will be supervised is a crucial factor for the success of the single market and the Solvency II regime. The proposal therefore seeks to find appropriate ways of streamlining the supervision of (re)insurance groups in the EU.
- Group supervisor – identification and appointment : the proposal introduces the concept of 'group supervisor'. For each group, a single authority will be appointed with concrete coordination and decision powers. The criteria retained are inspired by the Financial Conglomerates Directive, but the proposal introduces more flexibility where appropriate.
- Group supervisor – rights and duties : the group supervisor is given primary responsibility for all key aspects of group supervision (group solvency, intragroup transactions, risk concentration, risk management and internal control). Such responsibility must be exercised in cooperation and consultation with local supervisors. In addition, for each group, coordination arrangements must be established between all supervisors involved.
- Other key measures to ensure efficient group supervision : the proposal introduces, in line with the Financial Conglomerates Directive, a complete set of provisions obliging all supervisors involved to exchange information automatically (essential information) or on request (relevant information), to consult each other prior to important decisions, and to handle properly requests for verification of information.
- Group solvency – choice of method : with a view to ensuring as much as possible that groups will benefit from diversification effects, the proposal expresses a strong preference for the consolidation method.
- Group solvency – group internal model : the proposal allows a group to apply for the permission to use an internal model for the calculation of the group Solvency Capital Requirement and the solo Solvency Capital Requirement of related entities. The procedure is much inspired by the Capital Requirements Directive (2006/48/EC - Article 129). CEIOPS can be consulted at the request of the parent undertaking or of any of the supervisors involved.
- Supervision of subgroups : with a view to limiting the burden for groups, the proposal essentially states a) that group supervision should normally be carried out only at the top level in the EU, and b) that Member States may allow their supervisory authorities to carry out group supervision at the top level in a Member State. In practice, this should reduce the number of levels of supervision to a maximum of 3 (EU group, national subgroups, solo entities), which is in line with the Capital Requirements Directive.
- Implementing measures : with a view to ensuring as much as possible convergence in decisions and practices of group supervisors, the proposal contains for several key provisions a reference to further implementing measures.
The proposal introduces an innovative regime which seeks to facilitate capital management by groups, essentially by a) allowing under certain conditions a parent undertaking to use declarations of group support to meet part of the Solvency Capital Requirement of its subsidiaries, and b) introducing derogations to some Articles on solo supervision, where appropriate. The proposal allows the adoption of implementing measures, and provides for a review of the whole system five years after the transposition of the Directive.
The current EU acquis considers group supervision as merely supplementary to solo supervision (solo supervision is carried out in the same way on all entities, whether or not they are part of a group, and group supervision is merely added to solo supervision). The proposal changes substantially that philosophy: the group text contains many provisions which will directly influence the way in which solo supervision is carried out on entities belonging to a group. With a view to reflecting explicitly that fundamental development, the word 'supplementary' has been deleted from all places (including the title).
The Directive confers implementing powers on the Commission. The cases in which implementing powers have been conferred are specifically listed in each relevant article. In exercising these implementing powers, the Commission will be assisted by the European Insurance and Occupational Pensions Committee set up by Commission Decision 2004/9/EC. The measures to be adopted by the Commission will be subject to the advisory procedure or the regulatory procedure with scrutiny laid down in Articles 3, 5(a) i to i, and 7 of Decision 1999/468/EC.
The implementing measures will be used to further define the principles set out in this Directive so as to enhance harmonisation and supervisory convergence. They will be developed on the basis of mandates given by the Commission to CEIOPS and will be subject to consultation with stakeholders and to an impact assessment.
2002/83/EC (adapted)