Changes from report parliamentary committee draft to plenary report

Added2. Member States shall ensure that in the event of an infringement, administrative penalties or other administrative measures can be applied, subject to the conditions laid down in national law, to the members of the administrative, management or supervisory body, and to other natural persons who under national law are responsible for the infringement.

Added3. The powers to impose administrative penalties and other administrative measures provided for in this Directive shall be attributed to resolution authorities or to supervisory authorities, depending on the type of infringement. Resolution authorities and supervisory authorities shall have all information-gathering and investigatory powers that are necessary for the exercise of their respective functions. In the exercise of their powers to impose administrative penalties or other administrative measures, resolution authorities and supervisory authorities shall cooperate closely to ensure that administrative penalties or other administrative measures produce the desired results and coordinate their action when dealing with cross-border cases.

Added4. Resolution authorities and supervisory authorities shall exercise their administrative powers to impose penalties and other administrative measures in accordance with this Directive and national law in any of the following ways:

Added(a) directly;

Added(b) in collaboration with other authorities;

Added(c) under their responsibility by delegation to other authorities;

Added(d) by application to the competent judicial authorities.

Added5. Member States shall ensure that decisions taken by the resolution authorities and supervisory authorities in accordance with this Title are subject to a right of appeal.

AddedSpecific provisions on administrative penalties and other administrative measures

Added1. Member States shall ensure that their laws, regulations and administrative provisions provide for administrative penalties and other administrative measures at least in respect of the following situations:

Added(a) an infringement of Articles 5 or 7 by failing to draw up, maintain and update pre-emptive recovery plans and group pre-emptive recovery plans;

Added(b) an infringement of Article 12 by failing to provide all the information necessary for the development of resolution plans;

Added(c) an infringement of Article 61(1) by the failure of the administrative, management or supervisory body of an insurance or reinsurance undertaking or an entity as referred to in Article 1(1), points (b) to (e), to notify the supervisory authority when that undertaking or that entity is failing or likely to fail.

Added2. Member States shall ensure that, in the cases referred to in paragraph 1, the administrative penalties and other administrative measures that can be applied include at least the following:

Added(a) a public statement indicating the natural person, insurance or reinsurance undertaking, the entity as referred to in Article 1(1), points (b) to (e), an ultimate parent undertaking or other legal person responsible for the infringement and the nature of the infringement;

Added(b) an order requiring the natural or legal person responsible to cease the conduct and to desist from a repetition of that conduct;

Added(c) a temporary ban on any member of the administrative, management or supervisory body or senior management of the insurance or reinsurance undertaking or an entity as referred to in Article 1(1), points (b) to (e), or any other natural person who is held responsible, to exercise functions in an insurance or reinsurance undertaking or an entity as referred to in Article 1(1), points (b) to (e);

Added(d) in the case of a legal person, administrative fines of up to 10 % of the total annual turnover of that legal person in the preceding business year;

Added(e) in the case of a natural person, administrative fines of up to EUR 5 000 000, or in the Member States where the Euro is not the official currency, the corresponding value in the national currency on [PO – please add date of entry into force of this Directive];

Added(f) administrative fines of up to twice the amount of the benefit derived from the infringement where that benefit can be determined.

AddedFor the purposes of point (d), where the legal person is a subsidiary of a parent undertaking, the relevant turnover shall be the total annual turnover resulting from the consolidated accounts of the ultimate parent undertaking in the preceding business year.

AddedPublication of administrative penalties and other administrative measures

Added1. Member States shall ensure that resolution authorities and supervisory authorities publish on their official website at least any administrative penalties and other administrative measures imposed by those authorities for infringing the national provisions transposing this Directive where such administrative penalties or other administrative measures have not been the subject of an appeal or where the right of appeal has been exhausted. Such publication shall be made without undue delay after the natural or legal person is informed of that administrative penalty or other administrative measure. The publication shall contain information on the type and nature of the infringement and the identity of the natural or legal person on whom the administrative penalty or other administrative measure is imposed.

AddedWhere Member States permit publication of administrative penalties and other administrative measures against which there is an appeal, resolution authorities and supervisory authorities shall, without undue delay, publish on their official websites information on the status of that appeal and the outcome thereof.

Added2. Where the resolution authority or supervisory authority considers that the publication of the identity of the legal persons, or identity or personal data of natural persons would be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where such a publication would jeopardise the stability of financial markets or an ongoing investigation, the resolution authority or supervisory authority shall do any of the following:

Added(a) defer the publication of the decision imposing the administrative penalty or other administrative measures until the reasons for that deferral cease to exist;

Added(b) publish the decision imposing the administrative penalty or other administrative measures on an anonymous basis in accordance with national law where such anonymous publication would ensure the effective protection of the personal data concerned;

Added(c) not publish the decision imposing the administrative penalty or other administrative measures where the resolution authority or supervisory authority is of the opinion that publication in accordance with point (a) or (b) would be insufficient to ensure either of the following:

Added(i) that the stability of financial markets is not jeopardised;

Added(ii) the proportionality of the publication of such data with regard to measures which are deemed to be of a minor nature.

AddedResolution authorities and supervisory authorities shall ensure that any publication in accordance with this Article shall remain on their official website for a period of at least five years after its publication. Personal data contained in the publication shall only be kept on the official website of the resolution authority or the supervisory authority for the period which is necessary according to applicable data protection rules.

AddedMaintenance of central database by EIOPA

Added1. Subject to the professional secrecy requirements referred to in Article 64, resolution authorities and supervisory authorities shall inform EIOPA of all administrative penalties and other administrative measures imposed by them under Article 79 and of the status of that appeal and outcome thereof.

AddedEIOPA shall maintain and keep updated a central database of penalties and other administrative measures reported to it by resolution authorities, solely to enable those resolution authorities to exchange information, which shall be accessible to those resolution authorities only.

AddedEIOPA shall maintain and keep updated a central database of penalties and other administrative measures reported to it by supervisory authorities, solely to enable those supervisory authorities to exchange information, which shall be accessible to those supervisory authorities only.

Added2. EIOPA shall maintain and keep updated a webpage with the following information or links to that information:

Added(a) each resolution authority’s publication of penalties;

Added(b) each supervisory authority’s publication of penalties under Article 80;

Added(c) the period for which each Member State publishes penalties.

AddedEffective application of penalties and exercise of powers to impose penalties by supervisory authorities and resolution authorities

AddedMember States shall ensure that when determining the type of administrative penalties or other administrative measures and the level of administrative fines, the supervisory authorities and resolution authorities take into account all relevant circumstances, including where appropriate:

Added(a) the gravity and the duration of the infringement;

Added(b) the degree of responsibility of the natural or legal person responsible;

Added(c) the financial strength of the natural or legal person responsible;

Added(d) the amount of profits gained or losses avoided by the natural or legal person responsible, insofar as those profits or losses can be determined;

Added(e) the losses for third parties, including policy holders, caused by the infringement, insofar those losses can be determined;

Added(f) the level of cooperation of the natural or legal person responsible with the supervisory authority and the resolution authority;

Added(g) previous infringements by the natural or legal person responsible.

AddedFor the purposes of point (c), the indicators of financial strength of a natural or legal person shall include the total turnover of the responsible legal person or the annual income of the responsible natural person.

AddedTITLE VII AMENDMENTS TO DIRECTIVES 2002/47/EC, 2004/25/EC, (EU) 2017/1132 AND TO REGULATIONS (EU) No 1094/2010 AND (EU) No 648/2012

Added▐

AddedAmendments to Directive 2002/47/EC

AddedDirective 2002/47/EC is amended as follows:

Added(1) in Article 1, paragraph 6 is replaced by the following:

Added‘6. Articles 4 to 7 of this Directive shall not apply to any restriction on the enforcement of financial collateral arrangements or any restriction on the effect of a security financial collateral arrangement, any close out netting or set-off provision that is imposed by virtue of Title IV, Chapter V or VI of Directive 2014/59/EU of the European Parliament and of the Council*2, or of Title V, Chapter III, Section 3, or Chapter IV of Regulation (EU) 2021/23 of the European Parliament and of the Council*3, or of Title III, Chapter III, Section 4, or Chapter IV of Directive (EU) xx/xx of the European Parliament and of the Council*4, or to any such restriction that is imposed by virtue of similar powers in the law of a Member State to facilitate the orderly resolution of any entity as referred to in paragraph 2, point (d), of this Article which is subject to safeguards at least equivalent to those set out in Title IV, Chapter VII of Directive 2014/59/EU and in Title V, Chapter V of Regulation (EU) 2021/23;

Added______________________________________________________________

Added*2 Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).

Added*3 Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132 (OJ L 22, 22.1.2021, p. 1).

Added*4 [PO, please insert reference to the IRRD].’;

Added(2) Article 9a is replaced by the following: