# EUR-Lex - 52012PC0217 - EN

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# 52012PC0217

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) as regards the dates of its transposition and application and the date of repeal of certain Directives /* COM/2012/0217 final - 2012/0110 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1.        Grounds for and objectives
of the proposal

Directive 2009/138/EC (Solvency II) provides a
modern, risk-based system for the regulation and supervision of European
insurance and reinsurance undertakings. These new rules are essential in order
to ensure a safe and solid insurance sector that can provide sustainable
insurance products and support the real economy through long-term investments
and additional stability.

The deadline for transposition of Directive
2009/138/EC is 31 October 2012. The existing insurance and reinsurance
directives (Directives 64/225/EEC, 73/239/EEC, 73/240/EEC, 76/580/EEC,
78/473/EEC, 84/641/EEC, 87/344/EEC, 88/357/EEC, 92/49/EEC, 98/78/EC,
2001/17/EC, 2002/83/EC and 2005/68/EC, as amended by the acts listed in Part A
of Annex VI) that are collectively referred to as Solvency I will be repealed
with effect from 1 November 2012.

On 19 January 2011 the Commission adopted a
proposal to amend Directive 2009/138/EC in order to take into account the new
supervisory architecture for insurance and namely the setting-up of the
European Insurance and Occupational Pensions Authority (EIOPA) on 1 January
2011 (COM (2011) 8, COD 2011/0006)(Omnibus II). The proposal also included
provisions to extend the transposition, repeal and application dates in
Directive 2009/138/EC. These rules are essential in order to ensure a smooth
transition to the new regime. In addition and in order to become fully
operational, the Solvency II-regime also requires a high number of delegated
and implementing acts by the Commission, providing important details on
different technical matters. Many of these so-called "level 2"-rules
are closely linked to the Omnibus II-Directive and cannot be presented by the
Commission before the publication of Omnibus II.

At the current stage, there is a risk that the
proposed Omnibus II Directive will not be published and will not have entered
into force before the deadline for transposition of Directive 2009/138/EC
expires at 31 October 2012. Leaving this date unchanged would imply that the
Framework Directive would need to be implemented without the transitional rules
and other important adaptations foreseen in Omnibus II. In order to avoid this
situation and ensure the legal continuity of the current Solvency provisions
(Solvency I) until the complete Solvency II-package is in place, it is proposed
that the relevant transposition date in Directive 2009/138/EC is extended to 30
June 2013.

It is important to allow supervisors and (re)insurance
undertakings some time to prepare for the application of Solvency II. It is
therefore proposed to set the date for first application of Solvency II at 1
January 2014. This will make it possible to timely start the supervisory
approval procedures e g for internal models and undertaking specific
parameters.

The date of repeal of Solvency I should be
amended accordingly.

In view of the above and given the very short
period of time left before the time limit of 31 October 2012, this Directive
should be adopted by the European Parliament and the Council as a matter of
urgency and enter into force without delay.

This Directive is necessary in order to prevent
a legal vacuum to arise after 31 October 2012.

A gap would exist between the EU legal system (Solvency
II) and that of Member States (where Solvency I as transposed would remain in
force). This would lead to legal uncertainty for supervisors, undertakings and
Member States.

1.2.        Directive 2009/138/EC
(Solvency II)

This Directive establishes a new and modern
solvency regime for insurers and reinsurers in the European Union. It provides
for an economic risk-based approach which provides incentives for insurance and
reinsurance undertakings to properly measure and manage their risks.

1.3.        Proposal COM (2011) 8 (the
Omnibus II Directive)

This proposal aims to amend Directive
2009/138/EC in order to adapt Solvency II to the new supervisory architecture
for insurance and namely the setting-up of the European Insurance and
Occupational Pensions Authority (EIOPA) on 1 January 2011 (COM (2011) 8, COD
2011/0006). It proposes to postpone the transposition deadline of Solvency II
to 31 December 2012.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

2.1.        Transmission of this
proposal to the national parliaments

Draft legislative acts, including proposals
from the Commission, sent to the European Parliament and to the Council must be
forwarded to national parliaments in accordance with the Protocol (No 1) on the
role of national Parliaments in the European Union, annexed to the Treaties.

According to Article 4 of the Protocol, an
eight-week period must elapse between a draft legislative act being made
available to national parliaments and the date when it is placed on a
provisional agenda for the Council for its adoption or for adoption of a
position under a legislative procedure.

However, exceptions are possible under Article
4 in cases of urgency, the reasons for which must be stated in the act or
position of the Council. The adoption of this proposal by the European
Parliament and the Council has to be considered as a case of absolute urgency
for the reasons explained above.

2.2.        Impact assessment

This proposal is not accompanied by a separate
Impact Assessment as an impact assessment for the Solvency II Directive has
already been undertaken and this proposal only aims at avoiding a situation of
legal vacuum to arise because of the late publication of Omnibus II in the
Official Journal of the European Union.

Doing nothing at this stage would create a very
uncertain legal situation after 31 October 2012. A gap would exist between the
EU legal system (Solvency II) and that of Member States (where Solvency I as
transposed would remain in force). This would lead to legal uncertainty for supervisors,
undertakings and Member States.

Furthermore the Framework Directive would need
to be implemented without the transitional rules and other important
adaptations foreseen in Omnibus II.

The proposed amendment affects only the
obligation on Member States to transpose the Directive by 31 October 2012,
extending it to 30 June 2013. It also foresees a date of first application of 1
January 2014. It does not alter the substance of the Directive in question and
does not therefore impose any additional obligations on businesses.

3.           LEGAL ELEMENTS OF THE PROPOSAL

3.1.        Summary of the proposed
measures

The proposal amends Article 309(1) of Directive
2009/138/EC by postponing the date of transposition to 30 June 2013 and
setting-up a later date for its application (1 January 2014). It also amends
Articles 310 and 311 accordingly by setting-up a new date for the repeal of
Solvency I (1 January 2014).

3.2.        Legal basis

Articles 53 (1) and 62 of the Treaty on the
Functioning of the European Union.

3.3.        Subsidiarity principle

The subsidiarity principle applies as the
proposal concerns a field which does not fall within the exclusive competence
of the European Union.

The objectives of the proposal cannot be
achieved sufficiently by the Member States, as the provisions of directives
cannot be amended or repealed at national level.

The objectives of the proposal can be achieved
only by EU action, as this proposal amends an act of EU law which is in force,
and this is something which cannot be done by the Member States themselves.

The principle of subsidiarity is complied with
in that the proposal amends existing EU legislation.

3.4.        Proportionality principle

The proposal complies with the proportionality
principle for the following reason.

It does not alter the substance of the current
EU legislation: it is restricted to postponing the date for the transposition
of Directive 2009/138/EC until 30 June 2013; in order to avoid a situation of
legal uncertainty after the current deadline for transposition (31 October
2012) has expired. It also provides for a new, later application date for
Solvency II and consequent repeal of Solvency I (1 January 2014).

3.5.        Choice of instruments

Proposed instrument(s): directive.

No other instrument would have been suitable.
As this is an amended directive, the only way forward is to adopt another
directive.

4.           BUDGETARY IMPLICATION

The proposal has no implication for the EU
budget.

5.           OPTIONAL ELEMENTS

·
Simplification

The new proposal as such contains no
simplification elements. It is aimed solely at postponing the date for
transposition of Directive 2009/138/EC to 30 June 2013 and providing for a new
application date of 1 January 2014.

·
Repeal of existing legislation

The adoption of the proposal will not in itself
entail the repeal of existing legislation; it merely adjusts the date of the
repeal already foreseen in Directive 2009/138/EC.

·
European Economic Area

This draft instrument is concerned with a
subject covered by the EEA Agreement and must therefore be extended to cover
the European Economic Area.

·
Detailed explanation of the proposal by
chapter or by article

This proposal postpones the date of
transposition of Directive 2009/138/EC to 30 June 2013.

Article 1 of the proposal amends Article 309(1)
‘Transposition’ of Directive 2009/138/EC accordingly. It also provides for a
new, later date of application of Solvency II (1 January 2014).

Article 2 amends the date of repeal of Solvency
I (from 1 January 2014) in Article 310 and provides for the same date as date
of application of the provisions of Solvency I re-casted by Solvency II in
Article 311.

2012/0110 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Directive 2009/138/EC on the
taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II)
as regards the dates of its transposition and application and the date of
repeal of certain Directives

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 53(1) and
Article 62 thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[1],

Having regard to the opinion of the
Committee of the Regions[2],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Directive
2009/138/EC of the European Parliament and of the Council of 25 November 2009
on the taking up and pursuit of the business of Insurance and Reinsurance
(Solvency II)[3]
provides a modern, risk-based system for the regulation and supervision of
European insurance and reinsurance undertakings. These new rules are essential
in order to ensure a safe and solid insurance sector that can provide
sustainable insurance products and support the real economy through long-term
investments and additional stability.

(2)       Directive
2009/138/EC sets 31 October 2012 as the the date for transposition and 1 November
2012 as the date of repeal of . the existing insurance and reinsurance Directives
(Directives 64/225/EEC[4],
73/239/EEC[5],
73/240/EEC[6],
76/580/EEC[7],
78/473/EEC[8],
84/641/EEC[9],
87/344/EEC[10],
88/357/EEC[11],
92/49/EEC[12],
98/78/EC[13],
2001/17/EC[14],
2002/83/EC[15]
and 2005/68/EC[16].

(3)       On
19 January 2011 the Commission adopted a proposal to amend Directive
2009/138/EC[17]
in order to take into account the new supervisory architecture for insurance
and namely the setting-up of the European Insurance and Occupational Pensions Authority
(EIOPA). (Omnibus II). That proposal also included provisions to extend the
transposition, repeal and application dates set out in Directive 2009/138/EC.

(4)       Given
the complexity of the "Omnibus II" proposal, there is a risk that it
will not have entered into force before the relevant dates set out in Directive
2009/138/EC. Leaving those dates unchanged would result in Directive
2009/138/EC to be implemented without the important adaptations provided in
"Omnibus II" being put in place.

(5)       In
order to avoid overly burdensome legislative obligations for Member States
under Directive 2009/138/EC and later on under the new architecture envisaged
by the "Omnibus II" proposal, it is appropriate to extend the
transposition deadline for Directive 2009/138/EC.

(6)       In
order to allow for supervisors and insurance and reinsurance undertakings to
prepare for the application of the new architecture as a whole, a later date of
application, namely 1 January 2014, should be foreseen.

(7)       In
order to avoid a legal vacuum, the date of repeal of the existing insurance
Directives should therefore be aligned accordingly.

(8)       Given
the very short period of time left before the expiry of the deadlines laid down
in Directive 2009/138/EC, this Directive should enter into force without delay.

(9)       Consequently,
it is also justified to apply the exception for urgent cases provided for in
Article 4 of Protocol (No 1) on the role of national Parliaments in the
European Union in this case as regards the transmission to national Parliaments
of the proposal for this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 2009/138/EC is amended as
follows:

1.           Article 309(1) is amended
as follows:

(a)
in the first subparagraph, the date "31
October 2012" is replaced by "30 June 2013";

(b)
the following second subparagraph is inserted:

"Member States shall apply the laws,
regulations and administrative provisions referred to in the first subparagraph
from 1 January 2014."

2.           In Article 310, the date
"1 November 2012" is replaced by "1 January 2014".

3.           In Article 311, the date
"1 November 2012" is replaced by "1 January 2014".

Article 2

This Directive shall enter into force on
the day of its publication in the Official Journal of the European Union.

Article 3

This
Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               OJ C , , p. .

[2]               OJ C , , p. .

[3]               OJ, L 335, 17.12.2009, p.1.

[4]               OJ, 56,
4.4.1964, p. 878.

[5]               OJ, L 228, 16.8.1973, p.3.

[6]               OJ, L 228, 16.8.1973, p. 20.

[7]               OJ, L 189, 13.7.1976, p. 13.

[8]               OJ, L 151, 7.6.1978, p.25.

[9]               OJ, L339, 27.12.1984, p. 21.

[10]             OJ, L 185, 4.7.1987, p. 77.

[11]             OJ, L 172, 4.7.1988, p. 1.

[12]             OJ, L 228, 11.8.1992, p. 1.

[13]             OJ, L 330, 5.12.1998, p. 1.

[14]             OJ, L 110, 20.4.2001, p. 28.

[15]             OJ, L 345, 19.12.2002, p. 1.

[16]             OJ L 323, 9.12.2005, p. 1.

[17]             (COM (2011) 8, COD 2011/0006)