On 22 September 2021, the European Commission proposed a selected number of amendments to the Solvency II framework directive, called “Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/138/EC as regards proportionality, quality of supervision, reporting, long-term guarantee measures, macro-prudential tools, sustainability risks, group and cross-border supervision”. But as the Solvency II directive foresees in level 2 measures, and occasionally level 3 measures, more (regulatory) changes are to be expected. The review will therefore be a multilayered exercise. Continue reading…

While all eyes are focused on the Commission’s proposal for a directive amending the Solvency II directive (SII) as regards proportionality, quality of supervision, reporting, long-term guarantee measures, macro-prudential tools, sustainability risk and cross-border supervision, the Commission proposed also on 22 September a second proposal for directive. This second proposal aims to establish a new framework for the recovery and resolution of (re)insurance undertakings (hereafter IRRD). Continue reading…

On 23 July 2021, EIOPA issued a consultation on a potential new supervisory statement, focusing this time on the supervision of run-off undertakings. The aim of any supervisory statement is to ensure the application of high-quality and convergent supervision. Run-off undertakings or portfolios are unabridged subject to the Solvency II (SII) prudential framework in which no specific provisions are foreseen for these “insurance undertakings”. In a dynamic and competitive European insurance market where it should be possible for players to come and go, a clear framework for run-off undertakings seems logical. In addition, there is an increasing interest in the acquisitions of run-off portfolios and run-off undertakings by other insurance undertakings and specialised investment entities such as private equity. Therefore, one could argue that, because the SII framework is lacking a specific regulation, this void needs to be filled. Does this mean that the proportionality principle is not specific enough to deal with particularities of nature, size and complexity?  Continue reading…

EIOPA’s Board of Supervisors tabled on 30 March 2021 an item: ‘dividends distribution – criteria for a convergent approach’. A revised version of a note previously tabled in EIOPA’s Management Board was discussed, and national supervisors agreed with a common supervisory approach at the EU level. At the same time, they argued for a revision and two instead of three eligibility categories or criteria for a supervisory assessment regarding dividend distribution were retained. Members also agreed that “an internal note with specific criteria” is better fit for purpose, deciding explicitly not to publish any note on the issue at this point in time. The note would be sent for approval in written procedure.  Continue reading…

On 15 April 2021, advocate-general Michal Bobek delivered his Opinion in a request for preliminary ruling from the French Conseil d’Etat in case C-911/19. On the dissecting table are the Guidelines on product oversight and governance arrangements for retail banking products which the European Banking Authority (EBA) issued in 2016. The ACPR in 2017 in a notice decided to comply with them, ‘thus making them applicable to all financial institutions under its supervision’. A month later, the FBF lodged an application seeking the annulment of the ACPR’s notice before the French Conseil d’Etat, citing the EBA’s lack of competence. The Conseil d’Etat decided to seek a preliminary ruling from the European Court of Justice (ECJ) on several questions, one of which was whether the EBA had exceeded its power. Continue reading…

On 28 January 2021, the European Insurance and Occupational Pension Authority (EIOPA) launched a public consultation on a Discussion Paper titled “Open insurance: accessing and sharing insurance-related data”. In that paper, EIOPA explores whether and how far insurance value chains should be ‘opened’ up, i.e. whether and how far insurance-related and specific policyholder data should be shared amongst insurance and non-insurance companies. Continue reading…

On Christmas Eve 2020, the EU and the UK agreed on the long debated Trade and Cooperation Agreement (TCA). It goes beyond a free trade agreement. It has been provisionally applicable since 1 January 2021. It is a horizontal agreement, 400 plus pages, with more than 1000 pages of annexes. The provisional application will cease upon ratification or on 28 February 2021. The negotiated text of the TCA, published in the Official Journal of 31 December 2020, has not yet been subject to final legal-linguistic revision. The authentic and definitive texts resulting from such revision will replace ab initio, the signed versions of the TCA. These authentic and definitive texts of the TCA will be published in the Official Journal of the European Union in due time by 30 April 2021. But in the meantime, there it is! Le Brexit Nouveau est arrivé. Continue reading…

While the EU’s Solvency II (SII) review pursuits its course in the Union, the UK Treasury also pulled the starting gun for its own, and now separate, review. On 19 October 2020, HM Treasury published a call for evidence in its follow-up announcement from June. This call for evidence is the first stage in the British review of SII. HM Treasury explains that this call for evidence is a targeted review of the regulatory approach taken under key aspects of the UK’s SII regime. But a broader review will also take place. Separately, it continues, “the Government is conducting a long-term review – the Future Regulatory Framework (FRF) Review – to determine how the overall framework for financial services regulation will need to adapt to the UK’s position outside the EU. The FRF Review will examine the allocation of regulatory responsibilities between Parliament, HM Treasury and the financial services regulators.” Continue reading…

The consultation launched on 26 October 2020 by the European Commission asks how the EU can best go about helping businesses in the way they operate, towards a transformation to a more sustainable economy and to ensure that environmental and social interests are embedded in business strategies. The European Commission communicated in December 2019 its Green Deal action plan. One of its ambitions is to mainstream sustainability in all EU policies. Because it considers the private sector as key to financing the transition, it set out a number of actions: one is to strengthen the foundation for sustainable investment. This means also to further embed sustainability into the corporate governance framework, “as many companies still focus too much on short-term financial performance compared to their long-term development and sustainability aspects”. Other actions are the review of the Non-Financial Reporting Directive and supporting “businesses and other stakeholders in developing standardised natural capital accounting practices within the EU and internationally.”  Continue reading…