Abstract
Solvency II Directive and Insurance Distribution Directive have introduced harmonised rules across the European Union. This chapter compares the transparency as outlined in these Directives and the insurance regulation and supervisory laws in the EU Member States, which are included in the analysis made in this book. The different harmonisation pursued by the above Directives—maximum v. minimum—could result in differences in the transposition of the principle of transparency in these Member States.
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Notes
- 1.
On the use of hard law and soft law in the insurance regulation in the European Union, see Marano (2017), p. 12 ff.
- 2.
See Recital No. 16 of Solvency II, which adds: ‘The term beneficiary is intended to cover any natural or legal person who is entitled to a right under an insurance contract. Financial stability and fair and stable markets are other objectives of insurance and reinsurance regulation and supervision which should also be taken into account but should not undermine the main objective’.
- 3.
See Article 31. See also CEIOPS, Recommendations on Independence and Accountability, May 2006, p. 10.
- 4.
According to Article 34(4) of Solvency II, ‘Member States shall ensure that supervisory authorities have the power to develop, in addition to the calculation of the Solvency Capital Requirement and where appropriate, necessary quantitative tools under the supervisory review process to assess the ability of the insurance or reinsurance undertakings to cope with possible events or future changes in economic conditions that could have unfavourable effects on their overall financial standing. The supervisory authorities shall have the power to require that corresponding tests are performed by the undertakings’.
- 5.
On the supervisory review process, i.e. the overall process conducted by the supervisory authority in reviewing the situation of undertakings subject to its supervision, see Van Hulle (2019), p. 387 ff.
- 6.
See Article 31.
- 7.
See Article 371 of Commission Delegated Regulation (EU) 2015/35.
- 8.
See Van Hulle (2019), p. 376.
- 9.
Better Regulation Guidelines and the associated ‘Toolbox’ are available at https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how/better-regulation-guidelines-and-toolbox_en.
- 10.
See Commission Staff Working Document, Better Regulation Guidelines, 2017, p. 4.
- 11.
The Agreement replaces the previous Agreement from 2003 and the Interinstitutional accord on impact assessment from 2005. The Agreement is available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2016:123:TOC.
- 12.
See OECD, Better Regulation Practices across the European Union, March 2019, available at http://www.oecd.org/publications/better-regulation-practices-across-the-european-union-9789264311732-en.htm.
- 13.
See Article 22(3a) of the Financial Market Authority Act (FMABG; Finanzmarktaufsichtsbehördengesetz).
- 14.
See Marano (2017), p. 16.
- 15.
According to Recital No. 77 of Solvency II ‘Within the framework of an internal market it is in the interest of policy holders that they should have access to the widest possible range of insurance products available in the Community’.
- 16.
See Article 31(3) of Solvency II.
- 17.
- 18.
According to Article 32 of IDD, ‘where the publication of the identity of the legal persons, or identity or personal data of natural persons, is considered by the competent authority to be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data or where publication jeopardises the stability of financial markets or an ongoing investigation, the competent authority may decide to defer publication, not to publish, or to publish the sanctions on an anonymous basis’.
- 19.
See Recital No. 2 of Solvency II.
- 20.
See Recital No. 16 and Article 27 of Solvency II.
- 21.
See Article 36 of Solvency II.
- 22.
See Floreani (2017), p. 263.
- 23.
See Article 35 of Solvency II.
- 24.
See Article 304 of Delegated Regulation (EU) 2015/35.
- 25.
See Article 46 of Solvency II, which adds that ORSA shall be taken into account on an ongoing basis in the strategic decisions of the undertaking.
- 26.
See Article 46 of Solvency II.
- 27.
According to Recital no 14 of Solvency II, ‘The protection of policy holders presupposes that insurance and reinsurance undertakings are subject to effective solvency requirements that result in an efficient allocation of capital across the European Union. In light of market developments, the current system is no longer adequate. It is therefore necessary to introduce a new regulatory framework’.
- 28.
See Avesani et al. (2017), p. 298.
- 29.
See Article 51 of Solvency II.
- 30.
EIOPA-BoS-15/154, Need for high-quality public disclosure: Solvency II’s report on solvency and financial condition and the potential role of external audit, June 2015.
- 31.
See Articles from 307 to 311 of Delegated Regulation (EU) 2015/35.
- 32.
See Article 304(1)(b) of Delegated Regulation (EU) 2015/35.
- 33.
See Article 19 of IDD.
- 34.
See Article 6 of Commission Delegated Regulation (EU) 2017/2359.
- 35.
See Article 19(1)(e) of IDD.
- 36.
See Article 22(3) of IDD.
- 37.
See Article 22(3) of IDD.
- 38.
See Article 29(2) of IDD.
- 39.
See Article 29(3) of IDD.
- 40.
See Regulation (EU) No 1286/2014 of 26 November 2014 on key information documents (KID) for packaged retail and insurance-based investment products (PRIIPs).
- 41.
See Article 20(8) of IDD and Commission Implementing Regulation (EU) 2017/1469 of 11 August 2017 laying down a standardised presentation format for the IPID.
- 42.
See Marano (2020).
- 43.
Han (2015).
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Marano, P. (2021). A Comparative Analysis of Transparency in Insurance Regulation and Supervisory Law of Selected European Jurisdictions. In: Marano, P., Noussia, K. (eds) Transparency in Insurance Regulation and Supervisory Law. AIDA Europe Research Series on Insurance Law and Regulation, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-030-63621-0_14
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