Annexes to COM(2000)398 - Life assurance (recast version) (presented by the Commission) - Main contents

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dossier	COM(2000)398 - Life assurance (recast version) (presented by the Commission).
document	COM(2000)398
date	November 5, 2002

ANNEX I

Classes of assurance

I.	The assurance referred to in Article 2(1)(a), (b) and (c) excluding those referred to in II and III

II.	Marriage assurance, birth assurance

III.	The assurance referred to in Article 2(1)(a) and (b), which are linked to investment funds

IV.	Permanent health insurance, referred to in Article 2(1)(d)

V.	Tontines, referred to in Article 2(2)(a)

VI.	Capital redemption operations, referred to in Article 2(2)(b)

VII.	Management of group pension funds, referred to in Article 2(2)(c) and (d)

VIII.

The operations referred to in Article 2(2)(e)

IX.	The operations referred to in Article 2(3)

ANNEX II

Matching rules

The currency in which the assurer's commitments are payable shall be determined in accordance with the following rules.

1.	Where the cover provided by a contract is expressed in terms of a particular currency, the assurer's commitments are considered to be payable in that currency.

Member States may authorise assurance undertakings not to cover their technical provisions, including their mathematical provisions, by matching assets if application of the above procedures would result in the undertaking being obliged, in order to comply with the matching principle, to hold assets in a currency amounting to not more than 7 % of the assets existing in other currencies.

Member States may choose not to require assurance undertakings to apply the matching principle where commitments are payable in a currency other than the currency of one of the Member States, if investments in that currency are regulated, if the currency is subject to transfer restrictions or if, for similar reasons, it is not suitable for covering technical provisions.

4.	Assurance undertakings are authorised not to hold matching assets to cover an amount not exceeding 20 % of their commitments in a particular currency. However, total assets in all currencies combined must be at least equal to total commitments in all currencies combined.

5.	Each Member State may provide that, whenever under the preceding procedures a commitment has to be covered by assets expressed in the currency of a Member State, this requirement shall also be considered to be satisfied when the assets are expressed in euro.

ANNEX III

Information for policy holders

The following information, which is to be communicated to the policy holder before the contract is concluded (A) or during the term of the contract (B), must be provided in a clear and accurate manner, in writing, in an official language of the Member State of the commitment.

However, such information may be in another language if the policy holder so requests and the law of the Member State so permits or the policy holder is free to choose the law applicable.

A. Before concluding the contract

Information about the assurance undertaking

Information about the commitment

(a)1	The name of the undertaking and its legal form

(a)2	The name of the Member State in which the head office and, where appropriate, the agency or branch concluding the contract is situated

(a)3	The address of the head office and, where appropriate, of the agency or branch concluding the contract

(a)4	Definition of each benefit and each option

(a)5	Term of the contract

(a)6	Means of terminating the contract

(a)7	Means of payment of premiums and duration of payments

(a)8	Means of calculation and distribution of bonuses

(a)9	Indication of surrender and paid-up values and the extent to which they are guaranteed

(a)10

Information on the premiums for each benefit, both main benefits and supplementary benefits, where appropriate

(a)11

For unit-linked policies, definition of the units to which the benefits are linked

(a)12

Indication of the nature of the underlying assets for unit-linked policies

(a)13

Arrangements for application of the cooling-off period

(a)14

General information on the tax arrangements applicable to the type of policy

(a)15

The arrangements for handling complaints concerning contracts by policy holders, lives assured or beneficiaries under contracts including, where appropriate, the existence of a complaints body, without prejudice to the right to take legal proceedings

(a)16

Law applicable to the contract where the parties do not have a free choice or, where the parties are free to choose the law applicable, the law the assurer proposes to choose

B. During the term of the contract

In addition to the policy conditions, both general and special, the policy-holder must receive the following information throughout the term of the contract.

Information about the assurance undertaking

Information about the commitment

(b)1	Any change in the name of the undertaking, its legal form or the address of its head office and, where appropriate, of the agency or branch which concluded the contract

(b)2	All the information listed in points (a)(4) to (a)(12) of A in the event of a change in the policy conditions or amendment of the law applicable to the contract

(b)3	Every year, information on the state of bonuses

ANNEX IV

1. Professional secrecy

Until 17 November 2002, Member States may conclude cooperation agreements, providing for exchanges of information, with the competent authorities of third countries only if the information disclosed is subject to guarantees of professional secrecy at least equivalent to those referred to in Article 16 of this Directive.

2. Activities and bodies excluded from this Directive

Until 1 January 2004, this Directive shall not concern mutual associations, where:

—	the articles of association contain provisions for calling up additional contributions or reducing their benefits or claiming assistance from other persons who have undertaken to provide it, and

—	the annual contribution income for the activities covered by this Directive does not exceed EUR 500 000 for three consecutive years. If this amount is exceeded for three consecutive years this Directive shall apply with effect from the fourth year.

3. Until 1 January 2004, Member States shall apply the following provisions:

A. Solvency margin

Each Member State shall require of every assurance undertaking whose head office is situated in its territory an adequate solvency margin in respect of its entire business.

The solvency margin shall consist of:

the assets of the assurance undertaking free of any foreseeable liabilities, less any intangible items. In particular the following shall be included:

—

the paid-up share capital or, in the case of a mutual assurance undertaking, the effective initial fund plus any members' accounts which meet all the following criteria:

(a)

the memorandum and articles of association must stipulate that payments may be made from these accounts to members only in so far as this does not cause the solvency margin to fall below the required level, or, after the dissolution of the undertaking, if all the undertaking's other debts have been settled;

(b)	the memorandum and articles of association must stipulate, with respect to any such payments for reasons other than the individual termination of membership, that the competent authorities must be notified at least one month in advance and can prohibit the payment within that period;

(c)	the relevant provisions of the memorandum and articles of association may be amended only after the competent authorities have declared that they have no objection to the amendment, without prejudice to the criteria stated in (a) and (b),

—	one half of the unpaid share capital or initial fund, once the paid-up part amounts to 25 % of that share capital or fund,

—	reserves (statutory reserves and free reserves) not corresponding to underwriting liabilities,

—	any profits brought forward,

—

cumulative preferential share capital and subordinated loan capital may be included but, if so, only up to 50 % of the margin, no more than 25 % of which shall consist of subordinated loans with a fixed maturity, or fixed-term cumulative preferential share capital, if the following minimum criteria are met:

(a)

in the event of the bankruptcy or liquidation of the assurance undertaking, binding agreements must exist under which the subordinated loan capital or preferential share capital ranks after the claims of all other creditors and is not to be repaid until all other debts outstanding at the time have been settled.

Subordinated loan capital must also fulfil the following conditions:

(b)	only fully paid-up funds may be taken into account;

(c)

for loans with a fixed maturity, the original maturity must be at least five years. No later than one year before the repayment date, the assurance undertaking must submit to the competent authorities for their approval a plan showing how the solvency margin will be kept at or brought to the required level at maturity, unless the extent to which the loan may rank as a component of the solvency margin is gradually reduced during at least the last five years before the repayment date. The competent authorities may authorise the early repayment of such loans provided application is made by the issuing assurance undertaking and its solvency margin will not fall below the required level;

(d)

loans the maturity of which is not fixed must be repayable only subject to five years' notice unless the loans are no longer considered as a component of the solvency margin or unless the prior consent of the competent authorities is specifically required for early repayment. In the latter event the assurance undertaking must notify the competent authorities at least six months before the date of the proposed repayment, specifying the actual and required solvency margin both before and after that repayment. The competent authorities shall authorise repayment only if the assurance undertaking's solvency margin will not fall below the required level;

(e)	the loan agreement must not include any clause providing that in specified circumstances, other than the winding-up of the assurance undertaking, the debt will become repayable before the agreed repayment dates;

(f)	the loan agreement may be amended only after the competent authorities have declared that they have no objection to the amendment,

—

securities with no specified maturity date and other instruments that fulfil the following conditions, including cumulative preferential shares other than those mentioned in the fifth indent, up to 50 % of the margin for the total of such securities and the subordinated loan capital referred to in the fifth indent:

(a)	they may not be repaid on the initiative of the bearer or without the prior consent of the competent authority;

(b)	the contract of issue must enable the assurance undertaking to defer the payment of interest on the loan;

(c)	the lender's claims on the assurance undertaking must rank entirely after those of all non-subordinated creditors;

(d)	the documents governing the issue of the securities must provide for the loss-absorption capacity of the debt and unpaid interest, while enabling the assurance undertaking to continue its business;

(e)	only fully paid-up amounts may be taken into account.

2.	in so far as authorised under national law, profit reserves appearing in the balance sheet where they may be used to cover any losses which may arise and where they have not been made available for distribution to policy holders;

upon application, with supporting evidence, by the undertaking to the competent authority of the Member State in the territory of which its head office is situated and with the agreement of that authority:

(a)

an amount equal to 50 % of the undertaking's future profits; the amount of the future profits shall be obtained by multiplying the estimated annual profit by a factor which represents the average period left to run on policies; the factor used may not exceed 10; the estimated annual profit shall be the arithmetical average of the profits made over the last five years in the activities listed in Article 2 of this Directive.

The bases for calculating the factor by which the estimated annual profit is to be multiplied and the items comprising the profits made shall be defined by common agreement by the competent authorities of the Member States in collaboration with the Commission. Pending such agreement, those items shall be determined in accordance with the laws of the home Member State.

When the competent authorities have defined the concept of profits made, the Commission shall submit proposals for the harmonisation of this concept by means of a Directive on the harmonisation of the annual accounts of insurance undertakings and providing for the coordination set out in Article 1(2) of Directive 78/660/EEC;

(b)

where Zillmerising is not practised or where, if practised, it is less than the loading for acquisition costs included in the premium, the difference between a non-Zillmerised or partially Zillmerised mathematical provision and a mathematical provision Zillmerised at a rate equal to the loading for acquisition costs included in the premium; this figure may not, however, exceed 3,5 % of the sum of the differences between the relevant capital sums of life assurance activities and the mathematical provisions for all policies for which Zillmerising is possible; the difference shall be reduced by the amount of any undepreciated acquisition costs entered as an asset;

(c)

where approval is given by the competent authorities of the Member States concerned in which the assurance undertaking is carrying on its activities any hidden reserves resulting from the underestimation of assets and overestimation of liabilities other than mathematical provisions in so far as such hidden reserves are not of an exceptional nature.

B. Minimum solvency margin

Subject to section C, the minimum solvency margin shall be determined as shown below according to the classes of assurance underwritten.

(a)

For the kinds of assurance referred to in Article 2(1)(a) and (b) of this Directive other than assurance linked to investment funds and for the operations referred to in Article 2(3) of this Directive, it must be equal to the sum of the following two results:

—

first result:

a 4 % fraction of the mathematical provisions relating to direct business gross of reinsurance cessions and to reinsurance acceptances shall be multiplied by the ratio, for the last financial year, of the total mathematical provisions net of reinsurance cessions to the gross total mathematical provisions as specified above; that ratio may in no case be less than 85 %,

—

second result:

—

for policies on which the capital at risk is not a negative figure, a 0,3 % fraction of such capital underwritten by the assurance undertaking shall be multiplied by the ratio, for the last financial year, of the total capital at risk retained as the undertaking's liability after reinsurance cessions and retrocessions to the total capital at risk gross of reinsurance; that ratio may in no case be less than 50 %.

—	For temporary assurance on death of a maximum term of three years the above fraction shall be 0,1 %; for such assurance of a term of more than three years but not more than five years the above fraction shall be 0,15 %.

(b)

For the supplementary insurance referred to in Article 2(1)(c) of this Directive, it shall be equal to the result of the following calculation:

—	the premiums or contributions (inclusive of charges ancillary to premiums or contributions) due in respect of direct business in the last financial year in respect of all financial years shall be aggregated,

—	to this aggregate there shall be added the amount of premiums accepted for all reinsurance in the last financial year,

—	from this sum shall then be deducted the total amount of premiums or contributions cancelled in the last financial year as well as the total amount of taxes and levies pertaining to the premiums or contributions entering into the aggregate.

The amount so obtained shall be divided into two portions, the first extending up to EUR 10 million and the second comprising the excess; 18 % and 16 % of these portions respectively shall be calculated and added together.

The result shall be obtained by multiplying the sum so calculated by the ratio existing in respect of the last financial year between the amount of claims remaining to be borne by the assurance undertaking after deduction of transfers for reinsurance and the gross amount of claims; this ratio may in no case be less than 50 %.

In the case of the association of underwriters known as Lloyd's, the calculation of the solvency margin shall be made on the basis of net premiums, which shall be multiplied by flat-rate percentage fixed annually by the competent authority of the head office Member State. This flat-rate percentage must be calculated on the basis of the most recent statistical data on commissions paid. The details together with the relevant calculations shall be sent to the competent authorities of the countries in whose territory Lloyd's is established.

(c)

For permanent health insurance not subject to cancellation referred to in Article 2(1)(d) of this Directive, and for capital redemption operations referred to in Article 2(2)(b) thereof, it shall be equal to a 4 % fraction of the mathematical provisions calculated in compliance with the conditions set out in the first result in (a) of this section.

(d)	For tontines, referred to in Article 2(2)(a) of this Directive, it shall be equal to 1 % of their assets.

(e)

For assurance covered by Article 2(1)(a) and (b) of this Directive linked to investment funds and for the operations referred to in Article 2(2)(c), (d) and (e) of this Directive it shall be equal to:

—

a 4 % fraction of the mathematical provisions, calculated in compliance with the conditions set out in the first result in (a) of this section in so far as the assurance undertaking bears an investment risk, and a 1 % fraction of the provisions calculated in the same way, in so far as the undertaking bears no investment risk provided that the term of the contract exceeds five years and the allocation to cover management expenses set out in the contract is fixed for a period exceeding five years, plus

—	a 0,3 % fraction of the capital at risk calculated in compliance with the conditions set out in the first subparagraph of the second result of (a) of this section in so far as the assurance undertaking covers a death risk.

C. Guarantee fund

One third of the required solvency margin as specified in section B shall constitute the guarantee fund. Subject to paragraph 2 of this section, at least 50 % of this fund shall consist of the items listed in section A(1) and (2).

(a)	(a) The guarantee fund may not, however, be less than a minimum of EUR 800 000.

(b)	Any Member State may provide for the minimum of the guarantee fund to be reduced to EUR 600 000 in the case of mutual associations and mutual-type associations and tontines.

(c)

For mutual associations referred to in the second sentence of the second indent of Article 3(6) of this Directive, as soon as they come within the scope of this Directive, and for tontines, any Member State may permit the establishment of a minimum of the guarantee fund of EUR 100 000 to be increased progressively to the amount fixed in (b) of this section by successive tranches of EUR 100 000 whenever the contributions increase by EUR 500 000.

(d)	The minimum of the guarantee fund referred to in (a), (b) and (c) of this section must consist of the items listed in section A(1) and (2).

Mutual associations wishing to extend their business within the meaning of Article 6(4) or Article 40 of this Directive may not do so unless they comply immediately with the requirements of paragraph 2(a) and (b) of this section.

ANNEX V

PART A

Repealed Directives together with their successive amendments (referred to in Article 72)

Council Directive 79/267/EEC

Council Directive 90/619/EEC

Council Directive 92/96/EEC

Directive 95/26/EEC of the European Parliament and of the Council (only Article 1, second indent, Article 2(2), fourth indent, and Article 3(1) as regards the references made to Directive 79/267/EEC)

Directive 2002/12/EC of the European Parliament and of the Council

Second Council Directive 90/619/EEC

Third Council Directive 92/96/EEC

Third Council Directive 92/96/EEC

Directive 95/26/EEC of the European Parliament and of the Council (only Article 1, second indent, Article 2(1), third indent, Article 4(1), (3), (5) and Article 5, third indent, as regards the references made to Directive 92/96/EEC).

Directive 2000/64/EC of the European Parliament and of the Council (Article 2, as regards the references made to Directive 92/96/EEC)

Directive 2002/12/EC of the European Parliament and of the Council (Article 2)

PART B

Deadlines for implementation

(Referred to in Article 72)

Directive	Time limits for transposition	Time limits for application
79/267/EEC (OJ L 63, 13. 3.1979, p. 1)	15 September 1980	15 September 1981
90/619/EEC (OJ L 330, 29.11.1990, p. 50)	20 November 1992	20 May 1993
92/96/EEC (OJ L 360, 9.12.1992, p. 1)	31 December 1993	1 July 1994
95/26/EC (OJ L 168, 18.7.1995, p. 7)	18 July 1996	18 July 1996
2000/64/EC (OJ L 290, 17.11.2000, p. 27)	17 November 2002	17 November 2002
2002/12/EC (OJ L 77, 20.3.2002, p. 11)	20 September 2003	1 January 2004

ANNEX VI

Correlation table

This Directive	Directive 79/267/EEC	Directive 90/619/EEC	Directive 92/96/EEC	Directive 95/26/EC	Other Acts
Article 1(1)(a)			Article 1(a)
Article 1(1)(b)		Article 3	Article 1(b)
Article 1(1)(c)		Article 2(c)
Article 1(1)(d)			Article 1(c)
Article 1(1)(e)			Article 1(d)
Article 1(1)(f)			Article 1(e)
Article 1(1)(g)		Article 2(e)
Article 1(1)(h) to (l)			Article 1(f) to (j)
Article 1(1)(m)						New
Article 1(1)(n)			Article 1(l)
Article 1(1)(o), (p), (q)	Article 5(b), (c) and (d)
Article 1(1)(r)				Article 2(1)
Article 1(2)	Article 5(a), second sentence
Article 2	Article 1
Article 3(1) to (4)	Article 2
Article 3(5) and (6)	Article 3
Article 3(7)	Article 4
Article 3(8)					Act of Accession of Austria, Finland and Sweden, adapted by Decision 95/1/EC, Euratom, ECSC
Article 4	Article 6
Article 5	Article 7
Article 6(1)	Article 8(1)
Article 6(2)	Article 8(1) last three subparagraphs
Article 6(3)	Article 8(1)a
Article 6(4)	Article 8(2)
Article 6(5)	Article 8(3)
Article 6(6)	Article 8(4)
Article 7	Article 9
Article 8			Article 7
Article 9	Article 12
Article 10	Article 15
Article 11	Article 16
Article 12	Article 22(1)
Article 13	Article 23
Article 14(1) to (5)			Article 11(2) to (6)
Article 15			Article 14
Article 16(1) to (5)			Article 15(1) to (5)
Article 16(6)			Article 15(5)(a)
Article 16(7)			Article 15(5)(b)
Article 16(8)			Article 15(5)(c)
Article 16(9)			Article 15(6)
Article 17			Article 15(a)
Article 18(1) and (2)	Article 13(1) and (2)
Article 18(3)						New
Article 18(4) to (7)	Article13(3) to (7)
Article 19	Article 14
Article 20	Article 17
Article 21			Article 19
Article 22			Article 20
Article 23(1)			Article 21(1) first subparagraph
Article 23(2)			Article 21(1) second subparagraph
Article 23(3) first subparagraph			Article 21(1) third subparagraph
Article 23(3) second subparagraph			Article 21(1) fourth subparagraph
Article 23(4)			Article 21(2)
Article 24			Article 22
Article 25			Article 23
Article 26			Article 24
Article 27	Article 18
Article 28	Article 19
Article 29	Article 20
Article 30	Article 20a
Article 31	Article 21
Article 32		Article 4
Article 33			Article 28
Article 34			Article 29
Article 35		Article 15
Article 36			Article 31
Article 37	Article 24
Article 38	Article 24a
Article 39	Article 26
Article 40	Article 10
Article 41		Article 11
Article 42		Article 14
Article 43		Article 17
Article 44			Article 38
Article 45			Article 39(2)
Article 46(1) to (9)			Article 40(2) to (10)
Article 47			Article 41
Article 48			Article 42(2)
Article 49			Article 43(2)
Article 50(1)			Article 44(2) first subparagraph
Article 50(2)			Article 44(2) second subparagraph
Article 50(3)			Article 44(2) third subparagraph
Article 51(1) to (2)(f)	Article 27(1) to (2)(f)
Article 51(2)(g)						New
Article 51(3)and (4)						New
Article 52	Article 31
Article 53	Article 31a
Article 54	Article 28
Article 55	Article 29
Article 56	Article 30
Article 57	Article 32
Article 58	Article 32a
Article 59(1)	Article 32b(1)
Article 59(2)	Article 32b(2)
Article 59(3)	Article 32b(3)
Article 59(4)	Article 32b(4)
Article 59(5)	Article 32b(5)
Article 59(6)	Article 32b(7)
Article 60(1)	Article 33(4)
Article 60(2)						New
Article 61	Article 37
Article 62, first subparagraph	Article 38	Article 28, first subparagraph
Article 62, second to fourth subparagraphs		Article 28, second to fourth subparagraphs
Article 63		Article 29
Article 64			Article 47
Article 65			Article 47
Article 66(1), first subparagraph						New
Article 66(1) second subparagraph			Article 48(1)
Article 66(2)			Article 48(2)
Article 67			Article 50
Article 68(1)	Article 39(1)
Article 68(2)	Article 39(3)
Article 69(1)						New
Article 69(2)					Directive 2000/64/EC, Article 3(1), first subparagraph
Article 69(3)					Directive 2002/12/EC, Article 3(1), first subparagraph, and Directive 2000/64/EC, Article 3(2)
Article 69(4)					Directive 2000/64/EC, Article 3(1), second subparagraph, and Directive 2002/12/EC, Article 3(1), second subparagraph
Article 69(5)					Directive 2002/12/EC, Article 3(4)
Article 70	Article 41	Article 31	Article 51(2)	Article 6(2)	Directive 2000/64/EC, Article 3(2), and Directive 2002/12/EC, Article 3(3)
Article 71					Directive 2002/12/EC, Article 2
Article 72
Article 73
Article 74
Annex I	Annex
Annex II			Annex I
Annex III			Annex II
Annex IV
Annex V
Annex VI