Changes from report parliamentary committee draft to plenary report

Added1. Member States shall require the administrative, management or supervisory body of an insurance or reinsurance undertaking or any entity as referred to in Article 1(1), points (b) to (e), to notify the supervisory authority where those bodies consider that the insurance or reinsurance undertaking or the entity referred to in Article 1(1), points (b) to (e), is failing or likely to fail, within the meaning specified in Article 19(3).

Added2. Supervisory authorities shall inform the resolution authorities concerned of:

Added(a) any notifications received under paragraph 1 of this Article, under Articles 136, 138(1) and 139(1) of Directive 2009/138/EC;

Added(b) any actions the supervisory authority requires the insurance or reinsurance undertaking or any entity referred to in Article 1(1), points (b) to (e), to take pursuant to the exercise of the powers it has under Article 15 or 16 of this Directive, and under Article 137, Article 138, paragraphs 3 and 5, Article 139(3), and Articles 140, 141 and 144 of Directive 2009/138/EC;

Added(c) any extension of the recovery period pursuant to Article 138(4) of Directive 2009/138/EC.

AddedThe supervisory authorities shall also provide the resolution authorities with a copy of the recovery plan that the insurance or reinsurance undertaking or any entity referred to in Article 1(1), points (b) to (e), has submitted pursuant to Article 138(2) of Directive 2009/138/EC, a copy of the finance scheme submitted by the insurance or reinsurance undertaking, or any entity referred to in Article 1(1), points (b) to (e), pursuant to Article 139(2) of Directive 2009/138/EC and the supervisory authorities’ opinion on those documents, as applicable.

Added3. A supervisory authority or resolution authority that determines that the conditions referred to in Article 19(1), points (a) and (b), are met in relation to an insurance or reinsurance undertaking or an entity referred to in Article 1(1), points (b) to (e), shall communicate that determination without delay to the following authorities, if different:

Added(a) the resolution authority for that undertaking or entity;

Added(b) the supervisory authority for that undertaking or entity;

Added(c) the supervisory authority of any Member State where that undertaking or entity carries out significant cross border activities ;

Added(d) the resolution authority of any Member State where that undertaking or entity carries out significant cross border activities;

Added(e) the insurance guarantee scheme to which an insurance undertaking is affiliated, where applicable and where necessary to enable the functions of the insurance guarantee scheme to be discharged;

Added(f) where applicable, the group resolution authority;

Added(g) the competent ministry;

Added(h) where applicable, the group supervisor;

Added(i) the European Systemic Risk Board and the designated national macroprudential authority.

AddedDecision of the resolution authority

Added1. On receiving a communication from the supervisory authority pursuant to Article 61(3), or on its own initiative, the resolution authority shall determine whether the conditions of Article 19(1) or Article 20(3) are met in respect of the insurance or reinsurance undertaking or the entity referred to in Article 1(1), points (b) to (e), in question.

Added2. A decision to take or not to take resolution action in relation to an insurance or reinsurance undertaking or an entity as referred to in Article 1(1), points (b) to (e), shall contain the following information:

Added(a) the reasons for that decision;

Added(b) the resolution action that the resolution authority intends to take, including, where appropriate, the determination to apply for winding up, the appointment of an administrator or any other measure under applicable normal insolvency proceedings or, subject to Article 26(8), under national law.

AddedProcedural obligations of resolution authorities

Added1. Member States shall ensure that, as soon as reasonably practicable after taking a resolution action, resolution authorities comply with the requirements laid down in paragraphs 2 and 3.

Added2. Resolution authorities shall notify the undertaking under resolution and the following authorities, if different, of the resolution action referred to in paragraph 1:

Added(a) the supervisory authority for the undertaking under resolution;

Added(b) the supervisory authority of any branch of the undertaking under resolution;

Added(c) the central bank of the Member State in which the undertaking under resolution is established;

Added(d) where applicable, the insurance guarantee scheme to which the undertaking under resolution is affiliated;

Added(e) where applicable, the group resolution authority;

Added(f) the competent ministry;

Added(g) where applicable, the group supervisory authority;

Added(h) the designated national macroprudential authority and the European Systemic Risk Board ;

Added(i) the Commission, the European Central Bank, EIOPA, ESMA and EBA;

Added(j) where the undertaking under resolution is an institution as defined in Article 2, point (b), of Directive 98/26/EC, the operators of the systems in which it participates.

Added3. The resolution authority shall publish or ensure the publication of a copy of the order or instrument by which the resolution action is taken, or a notice summarising the effects of the resolution action, including the effects on policy holders and, where applicable, the terms and period of suspension or restriction referred to in Articles 47, 48 and 49, by the following means:

Added(a) on its official website;

Added(b) on the website of the supervisory authority, if different from the resolution authority, and on the website of EIOPA;

Added(c) on the website of the undertaking under resolution;

Added(d) where the shares, other instruments of ownership or debt instruments of the undertaking under resolution are admitted to trading on a regulated market, the means used for the disclosure of regulated information concerning the undertaking under resolution in accordance with Article 21(1) of Directive 2004/109/EC of the European Parliament and of the Council.

Added4. Where the shares, instruments of ownership or debt instruments are not admitted to trading on a regulated market, the resolution authority shall ensure that the documents providing proof of the instruments referred to in paragraph 3 are sent to the shareholders and creditors of the undertaking under resolution that are known through the registers or databases of the undertaking under resolution and which are available to the resolution authority.

AddedConfidentiality

Added1. Member States shall ensure that the requirements of professional secrecy shall be binding in respect of the following persons, authorities and bodies and that no confidential information is disclosed by any of them:

Added(a) resolution authorities;

Added(b) supervisory authorities and EIOPA;

Added(c) competent ministries;

Added(d) special managers appointed in accordance with Article 42 of this Directive;

Added(e) potential acquirers that have been contacted by the supervisory authorities or solicited by the resolution authorities, irrespective of whether that contact or solicitation was made as a preparation for the use of the sale of business tool, and irrespective of whether the solicitation resulted in an acquisition;

Added(f) auditors, accountants, legal and professional advisors, valuers and other experts directly or indirectly engaged by the resolution authorities, supervisory authorities, competent ministries or by the potential acquirers referred to in point (e);

Added(g) bodies which administer insurance guarantee schemes;

Added(h) the body in charge of the financing arrangements;

Added(i) central banks and other authorities involved in the resolution process;

Added(j) a bridge institution or an asset management vehicle;

Added(k) any other person who provides or has provided services directly or indirectly, permanently or occasionally, to persons referred to in points (a) to (j);

Added(l) senior management, members of the administrative, management and supervisory body, and employees of the bodies or entities referred to in points (a) to (j) before, during and after their appointment.

Added2. Without prejudice to the generality of the requirements under paragraph 1, Member States shall ensure that the persons referred to in paragraph 1 shall be prohibited from disclosing confidential information received during the course of their professional activities, or received from a supervisory authority or resolution authority in connection with that authority’s functions , to any person or authority, unless in the following situations:

Added(a) the disclosure is made in the exercise of their functions under this Directive;

Added(b) the disclosure is made in summary or collective form in such a way that individual insurance or reinsurance undertakings or any of the entities referred to in Article 1(1), points (b) to (e), cannot be identified;

Added(c) the disclosure is made with the express and prior consent of the authority, the insurance or reinsurance undertaking or the entity referred to in Article 1(1), points (b) to (e),which provided the information.

AddedMember States shall ensure that the persons referred to in paragraph 1 assess the possible effects of disclosing information on the public interest in relation to financial, monetary or economic policy, on the commercial interests of natural and legal persons, on the purpose of inspections, on investigations and on audits.

AddedThe procedure for assessing the effects referred to in the second subparagraph shall include a specific assessment of the effects of any disclosure of the contents and details of recovery and resolution plan as referred to in Articles 5, 7, 9, 10 and 12 and the result of any assessment carried out under Articles 6, 8 and 13.