prop · H703111 · 2020-03-17 00:00:00 — Notwithstanding any provision in this Agreement, this Agreement does not and is not intended to limit or restrict the ability of the applicable U.S. supervisory authority to exercise supervisory or regulatory authority over entities or groups that own or control depository institutions in the , have banking operations in the , or whose material financial distress or the nature, scope, size, scale, concentration, interconnectedness, or mix of activities have been determined could pose a threat to the financial stability of the , including through exercise of authority pursuant to the (12 U.S.C. § 1841 et seq. ), the Home Owners' (12 U.S.C. § 1461 et seq. ), the Act (12 U.S.C. § 3101 et seq. ), the Reform and Consumer Protection Act (12 U.S.C. § 5301 et seq. ), or other related laws or regulations. 1.The Parties shall encourage supervisory authorities in their respective jurisdictions to cooperate in exchanging information pursuant to the practices set forth in the . The Parties understand that the use of such practices will enhance cooperation and information sharing, while respecting a high standard of confidentiality protection. L 258/12 2.Nothing in this Agreement addresses requirements that may apply to the exchange of personal data by supervisory authorities. The to this Agreement shall form an integral part of this Agreement. 1.The Parties hereby establish a , composed of representatives of the and represen tatives of Union, which shall provide the Parties with a forum for consultation and to exchange information on the administration of the Agreement and its proper implementation. 2.The Parties shall consult within regarding this Agreement: (a)upon mutual agreement of the Parties if either Party proposes consultation; (b)at least once within 180 days after the date of entry into force or provisional application of this Agreement, whichever is earlier, and once per year thereafter, unless the Parties otherwise decide; (c)if a written request for mandatory consultation is made by either Party; and (d)if either Party provides written notice of intent to terminate. 3.The Joint Committee may address: (a)matters related to the implementation of the Agreement; (b)the effects of the Agreement, in the Parties' jurisdictions, on insurance and reinsurance consumers, and the commercial operations of insurers and reinsurers; (c)any amendments to this Agreement proposed by either Party; (d)any matter that requires mandatory consultation; (e)a notice of intent to terminate this Agreement; and (f)other matters as may be decided by the Parties. 4.The Joint Committee may adopt rules of procedure. 5.The Joint Committee shall be chaired in turn on an annual basis by each of the Parties, unless decided otherwise. may be convened by its Chair at such time and as may be decided by the Parties. 6.The Joint Committee may convene any working group to facilitate its work. This Agreement shall enter into force seven days after the date the Parties exchange written notifications certifying that they have completed their respective internal requirements and procedures, or on such other date as the Parties may agree. Implementation of the Agreement 1.From the date of entry into force or provisional application of this Agreement, whichever is earlier, the Parties shall encourage relevant authorities to refrain from taking any measures which are inconsistent with any of the conditions or obligations of the Agreement, including with respect to the elimination of collateral and local presence requirements pursuant to Article 3. This may include, as appropriate, exchanges of letters between relevant authorities on matters pertaining to this Agreement. L 258/13 2.From the date of entry into force or provisional application of this Agreement, whichever is earlier, the Parties shall take all measures, as appropriate, to implement and apply this Agreement as soon as possible in accordance with Article 10. 3.From the date of entry into force or provisional application of this Agreement, whichever is earlier, the encourage each U.S. State to promptly adopt the following measures: (a)the reduction, in each year following the date of entry into force or provisional application of this Agreement, of the amount of collateral required by each State to allow full credit for reinsurance by 20 percent of the collateral that the U.S. State required as of the January 1 before signature of this Agreement; and (b)the implementation of relevant U.S. State credit for reinsurance laws and regulations consistent with Article 3, as the method for adopting measures in conformity with paragraphs 1 and 2 of that Article. 4.Provided that this Agreement has entered into force, on a date no later than the first day of the month, 42 months after the date of signature of this Agreement, the begin evaluating a potential preemption determina tion under its laws and regulations with respect to any U.S. State insurance measure that the determines is inconsistent with this Agreement and results in less favourable treatment of an EU insurer or reinsurer than a U.S. insurer or reinsurer domiciled, licensed, or otherwise admitted in that U.S. Provided that this Agreement has entered into force, on a date no later than the first day of the month 60 months after the date of signature of this Agreement, the complete any necessary preemption determination under its laws and regulations with respect to any U.S. State insurance measure subject to such evaluation. For the purposes of this paragraph, the prioritise those States with the highest volume of gross ceded reinsurance for purposes of potential preemption determinations. Application of the Agreement 1.Except as otherwise specified, this Agreement shall apply on the date of the entry into force, or 60 months from the date of signature of this Agreement, whichever is later. 2.Notwithstanding Article 8 and paragraph 1 of this Article: (a)Union shall provisionally apply Article 4 of this Agreement until the date of entry into force of this Agreement and then apply Article 4 thereafter by ensuring that supervisory authorities and other competent authorities follow the practices set forth therein from the seventh day of the month following the date on which the Parties have notified each other that their internal requirements and procedures necessary for the provisional application of this Agreement have been completed. The provisionally apply Article 4 of this Agreement until the date of entry into force of this Agreement and then apply Article 4 thereafter by using best efforts and encouraging supervisory authorities and other competent authorities to follow the practices set forth therein from the seventh day of the month following the date on which the Parties have notified each other that their internal requirements and procedures necessary for the provisional application of this Agreement have been completed; (b)On the date of entry into force of this Agreement, or 60 months after signature of this Agreement, whichever is later: (i)the obligations of a Party set forth in Article 3, paragraphs 1 and 2 and Article 9 shall be applicable only if, and thereafter for as long as, the supervisory authorities of the other Party exercise supervision as set forth in Article 4 and satisfy the obligations set forth in Article 3, paragraph 3; (ii)the practices of a Party set forth in Article 4 and the obligations set forth in Article 3, paragraph 3 shall be applicable only if, and thereafter for as long as, the supervisory authorities of the other Party satisfy the obligations set forth in Article 3, paragraphs 1 and 2; and (iii)the obligations of a Party set forth in Article 3, paragraph 3 shall be applicable only if, and thereafter for as long as, the supervisory authorities of the other Party exercise supervision as set forth in Article 4 and satisfy the obligations set forth as in Article 3, paragraphs 1 and 2; (c)where under Article 4, subparagraph (i), measures are applied by the applicable U.S. supervisory authorities outside the territory of the to an EU insurance or reinsurance group, the distress or activities of which the has determined could pose a threat to the financial stability of the United L 258/14 States, through application of the Reform and Consumer Protection Act (12 U.S.C. § 5301 et seq. ), either Party may terminate this Agreement under an accelerated mandatory consultation and termination. Where, under Article 4, subparagraph (i), measures are applied by an EU supervisory authority outside the territory of Union to a U.S. insurance or reinsurance group, in relation to a threat to the financial stability of the EU, either Party may terminate this Agreement under an accelerated mandatory consultation and termination; (d)until the date set forth in subparagraph (b), and without prejudice to the mechanisms set forth therein, the reinsurance provisions of Article 3, paragraphs 1 and 2 shall apply with respect to an EU reinsurer in a U.S. State on the earlier of: (i)adoption by such U.S. State of a measure consistent with Article 3, paragraphs 1 and 2; or (ii)the effective date of any determination by the under its laws and regulations that such U.S. State insurance measure is preempted because it is inconsistent with this Agreement and results in less favourable treatment of an EU insurer or reinsurer than a U.S. insurer or reinsurer domiciled, licensed, or otherwise admitted in that U.S. (e)from the date of provisional application as set out in subparagraph (a) and for 60 months thereafter, in the application of Article 4, subparagraph (h), supervisory authorities in Union shall not impose a group capital requirement at the level of the worldwide parent undertaking of the insurance or reinsurance group, with regard to a U.S. insurance or reinsurance group with operations in Union; (f)from the date of signature of this Agreement, during the 60 month period referred to in subparagraph (b), if a Party does not meet the obligations of Article 3, with respect to local presence requirements, the supervisory authorities of the other Party may, after mandatory consultation, impose a group capital assessment or group capital requirement at the level of the worldwide parent undertaking on an insurance or reinsurance group which has its head office or is domiciled in the other Party; (g)Article 3, paragraph 3 shall be implemented and applicable in the territory of the EU no later than 24 months from the date of signature of this Agreement, provided that the Agreement has been provisionally applied or has entered into force; (h)subject to subparagraphs (b) and (d), Article 3, paragraphs 1 and 2 shall be implemented and fully applicable in all of the territory of both Parties no later than 60 months from the date of signature of this Agreement by both Parties, provided that the Agreement has entered into force; and (i)as from the date of entry into force or provisional application of this Agreement, whichever is earlier, both Parties shall apply Articles 7, 11 and 12. 3.Where a Party does not adhere to paragraph 2 by the dates stipulated therein, the other Party may seek mandatory consultation through . Termination and Mandatory Consultation 1.Following mandatory consultation, either Party may terminate this Agreement at any time by giving written notification to the other Party, subject to the procedures of this Article. Unless otherwise agreed by the Parties in writing, such termination shall be effective in 180 days, or 90 days with respect to termination described in Article 10, subparagraph 2(c), after the date of such notification. In particular, the Parties may terminate this Agreement where either Party has failed to fulfil its obligations under this Agreement or has taken measures inconsistent with the objectives of this Agreement. 2.Prior to notifying a decision to terminate this Agreement, including with respect to the provisions of Article 10, a Party shall notify the Chair of . 3.The Parties shall take the necessary steps to communicate to interested parties the effect of termination on insurers and reinsurers in their respective jurisdictions. 4.Mandatory consultation through shall be required if requested by either Party to the Chair of , and shall commence not later 30 days, or 7 days if requested as described in Article 10, subparagraph 2(c), after such request unless the Parties agree otherwise. The Party requesting mandatory consultation L 258/15 shall provide written notice of the bases for the mandatory consultation. The mandatory consultation may be hosted at a site determined by the Parties, and if the Parties cannot agree on a location, then the Party requesting mandatory consultation shall propose three neutral sites outside of the territory of either Party, and the other Party shall select one of the proposed three neutral sites. 5.Mandatory consultation will be required prior to the termination of this Agreement, including with respect to the provisions of Article 10. 6.If a Party refuses to participate in a mandatory consultation as provided in this Article, then the Party seeking to terminate may proceed to terminate the Agreement as provided in paragraph 1 of this Article. 1.The Parties may agree, in writing, to amend this Agreement. 2.If a Party wishes to amend this Agreement, it shall notify the other Party in writing of a request to begin negotiations to amend the Agreement. 3.A request to begin negotiations to amend the Agreement shall be notified to . Done at on the twenty second day of in the year two thousand and seventeen. Embassy of Estonia to the Delegation of Union to the L 258/16 Model Memorandum of Understanding Provisions on Exchange of Information between Supervisory 1.The Supervisory Authority of (U.S. State) and the national Supervisory Authority of (EU Member State), the Authorities signing this Memorandum of Understanding, recognise the need for co-operation in exchange of information. 2.The Authorities recognise that practical arrangements concerning cross-border cooperation and information exchange are essential for both crisis situations and day-to-day supervision. 3.The purpose of this Memorandum of Understanding is to facilitate cooperation in the exchange of information between the Authorities to the extent permitted by Applicable and consistent with supervisory and regulatory purposes. 4.The Authorities recognise that nothing in this Memorandum of Understanding addresses requirements that may apply to the exchange of personal data by supervisory authorities. 5.Applicable on exchange and protection of Confidential Information is in place in the territory of the Authorities, with the aim of protecting the confidential nature of data exchanged between Authorities under this Memorandum of Understanding. Amongst other things, this Applicable seeks to ensure that: (a)The exchange of Confidential Information is only for purposes directly related to the fulfilment of the supervisory functions of the Authorities; and (b)All persons gaining access to such Confidential Information in the course of their duties will maintain the confiden tiality of such information, except in certain defined circumstances as set forth in Article 7. For the purpose of this Memorandum of Understanding, the following definitions should apply: (a)‘Applicable ’ means any law, regulation, administrative provision or other legal practice applicable in the jurisdiction of an Authority relevant to insurance and reinsurance supervision, the exchange of supervisory information, the protection of confidentiality and the handling and disclosure of information; (b)‘Confidential Information’ means any Provided Information regarded as confidential by the jurisdiction of the Requested Authority; (c)‘Insurer’ means an undertaking which is authorised or licensed to take up or engage in the business of direct or primary insurance; (d)‘Person’ means a natural person, legal entity, partnership, or unincorporated association; (e)‘’ means any information relating to an identified or identifiable natural person; (f)‘Provided Information’ means any information provided by a Requested Authority to a Requesting Authority in response to a request for information; (g)‘Regulated Entity’ means an insurer or reinsurer authorised or supervised by a Supervisory Authority of Union or the ; (h)‘Reinsurer’ means an undertaking which is authorised or licensed to take up or engage in the business of reinsurance activities; (i)‘Requested Authority’ means the Authority to whom a request for information is made; (j)‘Requesting Authority’ means the Authority making a request for information; (k)‘Supervisory Authority’ means any insurance and reinsurance supervisor in Union or in the ; and (l)‘Undertaking’ means any entity engaged in economic activity. L 258/17 1.Subject to Applicable , the Requested Authority should consider requests from the Requesting Authority seriously and should respond in a timely fashion. It should provide the Requesting Authority with the fullest possible response to a request for information consistent with its regulatory functions. 2.Subject to Applicable , the existence and content of any request for information should be treated as confidential by both the Requested and the , unless both Authorities mutually decide otherwise. Use of Provided Information 1.The Requesting Authority should only make requests for information if it has a legitimate regulatory or supervisory purpose for the request directly relevant to a Requesting Authority's lawful supervision of a Regulated Entity. It is generally not considered a legitimate regulatory or supervisory purpose for a Requesting Authority to seek information on individuals, unless the request is directly relevant to the fulfilment of supervisory functions. 2.The Requesting Authority should use Provided Information only for lawful purposes related to the Authority's regulatory, supervisory, financial stability, or functions. 3.Subject to Applicable , any Provided Information exchanged belongs to, and will remain the property of, the Requested Authority. 1.Requests for information by the Requesting Authority should be in writing, or in accordance with paragraph 2 where it is urgent, and include the following elements: (a)the Authorities involved, the field of supervision concerned and the purpose for which the information is sought; (b)the name of the person or Regulated Entity concerned; (c)details of the request which may include a description of the facts underlying the request, specific questions under investigation, and an indication of any sensitivity about the request; (d)the information requested; (e)the date by which the information is requested and any relevant legal deadlines; and (f)if relevant, whether, how, and to whom any of the information may be passed consistent with Article 7. 2.For urgent requests, a request can be presented orally, and should be followed by written confirmation without undue delay. 3.The Requested Authority should handle the request as follows: (a)The Requested Authority should confirm receipt of the request. (b)The Requested Authority should assess each request on a case-by-case basis to determine the fullest extent of information that can be provided under the terms of this Memorandum of Understanding and the procedures applicable in the jurisdiction of the Requested Authority. In deciding whether and to what extent to fulfil a request, the Requested Authority may take into account: (i)whether the request conforms with the Memorandum of Understanding; (ii)whether compliance with the request would be so burdensome as to disrupt the proper performance of the Requested Authority's functions; (iii)whether it would be otherwise contrary to the essential interest of the Requested Authority's jurisdiction to provide the information requested; L 258/18 (iv)any other matters specified by the Applicable of the Requested Authority's jurisdiction (in particular those relating to confidentiality and professional secrecy, data protection and privacy, and procedural fairness); and (v)whether complying with the request may otherwise be prejudicial to the performance by the Requested Authority of its functions. (c)Where a Requested Authority or is unable to provide all or part of the requested Information, the Requested Authority should, to the extent practical and appropriate subject to Applicable , explain its reasons for not providing the information and consider possible alternative ways to meet the supervisory objective of the Requesting Authority. A request for Information may, in particular, be denied by the Requested Authority where the request would require the Requested Authority to act in a that would violate its Applicable . Treatment of Confidential Information 1.As a general rule, any information received under this Memorandum of Understanding should be treated as Confidential Information except where otherwise indicated. 2.The Requesting Authority should take all lawful and reasonably practicable actions to preserve the confidentiality of Confidential Information. 3.Subject to Article 7 and Applicable , the Requesting Authority should restrict access to Confidential Information received from a Requested Authority to persons working for the Requesting Authority or acting on its behalf who: (a)are subject to the Requesting Authority's obligations in its jurisdiction to prevent unauthorized disclosure of Confidential Information; (b)are under the supervision and control of the Requesting Authority; (c)have a need for such information that is consistent with, and directly related to, a lawful regulatory or supervisory purpose; and (d)are subject to ongoing confidentiality requirements after leaving the Requesting Authority. Onward Sharing of Provided Information 1.Except as provided in Article 7(2), a Requesting Authority should not transmit to a third party Provided Information received from the Requested Party, unless: (a)the Requesting Authority has obtained prior written consent from the Requested Authority for onward sharing of such information unless the request is urgent, in which case it can be presented orally followed by written confirmation without delay; and (b)the third party commits to abide by restrictions which maintain a substantially similar level of confidentiality as the one to which the Requesting Authority is subject to as set forth in this Memorandum of Understanding. 2.Subject to Applicable , if the Requesting Authority is subject to a legally compelled demand for or under a legal obligation to disclose Provided Information, the Requesting Authority should provide the Requested Authority with as much notice as reasonably practical of such demand and any related proceedings to facilitate opportunities to intervene and assert privilege. If the Requested Authority's consent to the production of Provided Information is not given, the Requesting Authority should take all reasonable steps where appropriate to resist disclosure, including by employing legal means to resist such disclosure and to assert and protect the confidentiality of any Confidential Information subject to potential disclosure. L 258/19 The Honorable Ambassador Lighthizer Office of the Trade Representative Dear Ambassador Lighthizer, I am pleased to proceed with the signature of the Bilateral Agreement between Union and the of on measures regarding insurance and reinsurance (‘the Agreement’), attached in the to this letter. The final legal text, in English, was agreed by the and European Union representatives on 12 January 2017. The Parties have completed any internal procedures necessary for signing the Agreement. The Parties acknowledge the linguistic regime of Union. Commission has noted the statement in the Council Decision adopted on , which sets forth with respect to the Agreement: This Agreement shall be signed in English.