Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings
Date: 2001-03-19
Institutions: Council of the European Union, European Parliament
Subjects: approximation of laws, insurance company, judicial cooperation, judicial proceedings, liquidation

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DIRECTIVE 2001/17/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 19 March 2001

on the reorganisation and winding-up of insurance undertakings

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2) and 55 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of
Committee (2),

the Economic and Social

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1)

First Council Directive 73/239/EEC of 24 July 1973 on
the coordination of laws, regulations and administrative
provisions relating to the taking up and pursuit of the
business of direct insurance other than life assurance (4),
as supplemented by Directive 92/49/EEC (5), and the
First Council Directive 79/267/EEC of 5 March 1979 on
the coordination of laws, regulations and administrative
provisions relating to the taking up and pursuit of
the business of direct life assurance (6), as supplemented
by Directive 92/96/EEC (7), provide
single

for

a

(1) OJ C 71, 19.3.1987, p. 5, and
OJ C 253, 6.10.1989, p. 3.
(2) OJ C 319, 30.11.1987, p. 10.
(3) Opinion of the European Parliament of 15 March 1989 (OJ C 96,
17.4.1989, p. 99), confirmed on 27 October 1999, Council
Common Position of 9 October 2000 (OJ C 344, 1.12.2000, p.
23) and Decision of the European Parliament of 15 February 2001.
(4) OJ L 228, 16.8.1973, p. 3. Directive as last amended by European
Parliament and Council Directive 95/26/EC (OJ L 168, 18.7.1995,
p. 7).

(5) Council Directive 92/49/EEC of 18 June 1992 on the coordination
of laws, regulations and administrative provisions relating to direct
insurance other
than life assurance and amending Directives
73/239/EEC and 88/357/EEC (third non-life insurance directive)
(OJ L 228, 11.8.1992, p. 1).

(6) OJ L 63, 13.3.1979, p. 1. Directive as last amended by Directive

95/26/EC.

(7) Council Directive 92/96/EEC of 10 November 1992 on the
laws, regulations and administrative provisions
coordination of
relating
amending Directives
and
79/267/EEC and 90/619/EEC (third life assurance directive) (OJ L
360, 9.12.1992, p. 1).

to direct

assurance

life

authorisation of the insurance undertakings granted by
the home Member State supervisory authority. This
single authorisation allows the insurance undertaking to
carry out its activities in the Community by means of
establishment or free provision of services without any
further authorisation by the host Member State and
under
the home
Member State supervisory authorities.

the sole prudential supervision of

(2)

(3)

(4)

The insurance directives providing a single authorisation
with a Community scope for the insurance undertakings
do not contain coordination rules in the event of
winding-up proceedings. Insurance undertakings as well
as other financial
institutions are expressly excluded
scope of Council Regulation (EC) No
from the
insolvency
2000
1346/2000
proceedings (8).
the proper
functioning of the internal market and of the protection
of creditors that coordinated rules are established at
Community level for winding-up proceedings in respect
of insurance undertakings.

on
in the interest of

29 May
is

of

It

the

restore the financial

reorganisation measures,

Coordination rules should also be established to ensure
that
adopted by the
competent authority of a Member State in order to
preserve or
soundness of an
insurance undertaking and to prevent as much as
possible a winding-up situation, produce full effects
throughout
reorganisation
measures covered by this Directive are those affecting
pre-existing rights of parties other than the insurance
undertaking itself. The measures provided for in Article
20 of Directive 73/239/EEC and Article 24 of Directive
79/267/EEC should be included within the scope of this
Directive provided that they comply with the conditions
contained in the definition of reorganisation measures.

Community.

The

the

defined

undertakings

This Directive has a Community scope which affects
in Directives
as
insurance
73/239/EEC and 79/267/EEC which have their head
office in the Community, Community branches of
insurance undertakings which have their head office in
third countries and creditors resident in the Community.
the
This Directive should not regulate the effects of
reorganisation measures and winding-up proceedings
vis-(cid:224)-vis third countries.

(8) OJ L 160, 30.6.2000, p. 1.

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(5)

(6)

(7)

involve for the payment of

This Directive should concern winding-up proceedings
whether or not they are founded on insolvency and
whether they are voluntary or compulsory.
It should
apply to collective proceedings as defined by the home
Member State’s legislation in accordance with Article 9
involving the realisation of the assets of an insurance
undertaking and the distribution of
their proceeds.
Winding-up proceedings which, without being founded
on insolvency,
insurance
claims a priority order in accordance with Article 10
should also be included in the scope of this Directive.
Claims by the employees of an insurance undertaking
arising from employment contracts and employment
relationships should be capable of being subrogated to a
national wage guarantee
such subrogated
claims should benefit from the treatment determined by
the home Member State’s law (lex concursus) according
to the principles of this Directive. The provisions of this
Directive
cases of
should apply to the different
winding-up proceedings as appropriate.

scheme;

reorganisation measures does not
The adoption of
preclude
the opening of winding-up proceedings.
Winding-up proceedings may be opened in the absence
of, or
reorganisation
measures and they may terminate with composition or
including reorganisation
other
measures.

analogous measures,

adoption of

following,

the

through
the
coordination,
protection of insurance creditors.

principles

publicity,

of

equivalent

unity,

universality,
and

treatment

proceedings

(10) Only the competent authorities of the home Member
State should be empowered to take decisions on
winding-up
insurance
(principle of unity). These proceedings
undertakings
should produce their effects throughout the Community
and should be recognised by all Member States. All the
assets and liabilities of
insurance undertaking
should, as a general rule, be taken into consideration in
the winding-up proceedings (principle of universality).

concerning

the

(11)

concerning

law should govern the
The home Member State’s
insurance
decision
an
winding-up
undertaking,
themselves
the winding-up proceedings
and their effects, both substantive and procedural, on
the persons and legal relations concerned, except where
this Directive provides otherwise. Therefore all
the
conditions for the opening, conduct and closure of
winding-up proceedings should in general be governed
by the home Member State’s law. In order to facilitate
its
a
non-exhaustive list of aspects which, in particular, are
subject to the general rule of the home Member State’s
legislation.

this Directive

application

include

should

The definition of branch,
in accordance with existing
insolvency principles, should take account of the single
legal personality of
the insurance undertaking. The
home Member State’s legislation should determine the
way in which the
and liabilities held by
independent persons who have a permanent authority
to act as agent for an insurance undertaking should be
treated in the winding-up of an insurance undertaking.

assets

(12)

The supervisory authorities of the home Member State
and those of all the other Member States should be
informed as a matter of urgency of
the opening of
winding-up proceedings (principle of coordination).

(8) A distinction should be made between the competent
authorities for the purposes of reorganisation measures
supervisory
and winding-up proceedings
authorities
The
insurance
competent authorities may be administrative or judicial
authorities depending on the Member State’s legislation.
This Directive does not purport to harmonise national
legislation concerning the allocation of competences
between such authorities.

undertakings.

and the

the

of

(9)

This Directive does not seek to harmonise national
and
legislation concerning reorganisation measures
winding-up proceedings but aims at ensuring mutual
recognition of Member States’ reorganisation measures
and winding-up
insurance
undertakings as well as the necessary cooperation. Such
mutual recognition is implemented in this Directive

concerning

legislation

(13)

that

importance

claim arising

is of utmost

from obligations under

It
insured persons,
and any injured party
policy-holders, beneficiaries
having a direct right of action against the insurance
undertaking on a
from insurance
operations be protected in winding-up proceedings.
Such protection should not include claims which arise
insurance contracts or
not
insurance perations but from civil liability caused by an
agent in negotiations for which, according to the law
applicable to the insurance contract or operation, the
agent himself is not responsible under such insurance
contract or operation. In order to achieve this objective
Member States
for
should ensure special
insurance creditors according to one of two optional
methods provided for in this Directive. Member States
may choose between granting insurance claims absolute
precedence over any other claim with respect to assets
representing
granting
insurance claims a special rank which may only be
preceded by claims on salaries, social security, taxes and
rights (cid:145)in rem(cid:146) over the whole assets of the insurance

technical provisions or

treatment

the

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(20)

(21)

(22)

(23)

undertaking. Neither of the two methods provided for
from
in this Directive
establishing a ranking between different categories of
insurance claims.

a Member State

impedes

(14)

(15)

This Directive should ensure an appropriate balance
between the protection of insurance creditors and other
privileged creditors protected by the Member State’s
legislation and not harmonise the different systems of
privileged creditors existing in the Member States.

The two optional methods for treatment of insurance
claims are considered substantially equivalent. The first
method ensures the affectation of assets representing the
the second
technical provisions to insurance claims,
method ensures insurance claims a position in the
ranking of creditors which not only affects the assets
representing the technical provisions but all the assets of
the insurance undertaking.

(16) Member States which,

insurance
in order to protect
for the method of granting insurance
creditors, opt
claims absolute precedence with respect to the assets
representing the technical provisions
should require
their insurance undertakings to establish and keep up to
date a special register of such assets. Such a register is a
instrument for identifying the assets affected to
useful
such claims.

(17)

In order
to strengthen equivalence between both
methods of treatment of insurance claims, this Directive
should oblige the Member States which apply the
to require every
in Article 10(1)(b)
method set out
insurance undertaking to represent, at any moment and
independently of a possible winding-up, claims, which
according to that method may have precedence over
insurance claims and which are registered in the
insurance undertaking’s accounts, by assets allowed by
the insurance directives
the
technical provisions.

in force to represent

(18)

The home Member State should be able to provide that,
where the rights of
insurance creditors have been
subrogated to a guarantee scheme established in such
home Member State, claims by that scheme should not
benefit from the treatment of insurance claims under
this Directive.

(19)

The opening of winding-up proceedings should involve
the withdrawal of the authorisation to conduct business
granted to the
such
authorisation has previously been withdrawn.

insurance undertaking unless

(24)

effects

throughout

interested parties,

The decision to open winding-up proceedings, which
the Community
may produce
according to the principle of universality, should have
appropriate publicity within the Community. In order to
protect
the decision should be
published in accordance with the home Member State’s
procedures and in the Official
the European
Communities and, further, by any other means decided
by the other Member States’ supervisory authorities
within their
In addition to
publication of the decision, known creditors who are
resident
in the Community should be individually
informed of the decision and this information should
contain at least the elements specified in this Directive.
Liquidators
regularly
informed of the progress of the winding-up proceedings.

territories.

respective

Journal of

creditors

should

keep

also

Creditors should have the right to lodge claims or to
submit written observations in winding-up proceedings.
Claims by creditors resident in a Member State other
than the home Member State should be treated in the
same way as equivalent claims in the home Member
State without any discrimination on the grounds of
nationality
equivalent
treatment).

(principle

residence

or

of

for

proceedings.

in winding-up

This Directive should apply to reorganisation measures
adopted by a competent authority of a Member State
principles which are similar (cid:145)mutatis mutandis(cid:146) to those
provided
The
publication of such reorganisation measures should be
limited to the case in which an appeal
in the home
Member State is possible by parties other than the
insurance
itself. When reorganisation
measures affect exclusively the rights of shareholders,
members or employees of
the insurance undertaking
considered in those capacities, the competent authorities
in which the parties
should determine the manner
affected should be informed in accordance with relevant
legislation.

undertaking

for

coordinated rules

This Directive provides
to
determine the law applicable to reorganisation measures
and winding-up proceedings of insurance undertakings.
This Directive does not seek to establish rules of private
law determining the law applicable to
international
contracts and other legal relations.
In particular, this
Directive does not seek to govern the applicable rules
on the existence of a contract, the rights and obligations
of parties and the evaluation of debts.

The general rule of this Directive, according to which
winding-up
reorganisation measures
proceedings are governed by the law of
the home
Member State, should have a series of exceptions in

and

the

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legitimate

to protect

expectations

order
and the
certainty of certain transactions in Member States other
than the home Member State. Such exceptions should
concern the effects of such reorganisation measures or
winding-up proceedings on certain contracts and rights,
third parties’ rights in rem, reservations of title, set-off,
regulated markets,
party
detrimental
purchasers and lawsuits pending.

third

acts,

(25)

(26)

The exception concerning the effects of reorganisation
measures
and winding-up proceedings on certain
contracts and rights provided for in Article 19 should
be limited to the effects specified therein and should not
related to reorganisation
include any other
measures and winding-up proceedings
the
lodging, verification, admission and ranking of claims
regarding such contracts and rights, which should be
governed by the home Member State’s legislation.

such as

issues

The effects of reorganisation measures or winding-up
proceedings on a lawsuit pending should be governed
by the law of the Member States in which the lawsuit is
pending concerning an asset or a right of which the
insurance undertaking has been divested as an exception
to the application of the law of the home Member State.
such measures and proceedings on
The effects of
individual
arising from these
lawsuits should be governed by the home Member
State’s legislation, according to the general rule of this
Directive.

enforcement

actions

(27) All persons required to receive or divulge information
communication
connected with the procedures of
provided for in this Directive should be bound by
professional
that
established in Article 16 of Directive 92/49/EEC and
Article 15 of Directive 92/96/EEC, with the exception of
any
to which specific national
judicial
legislation applies.

same manner as

secrecy in the

authority

(28)

branches

concerning

For the sole purpose of applying the provisions of this
Directive to reorganisation measures and winding-up
proceedings
in the
Community of an insurance undertaking whose head
office is located in a third country the home Member
State should be defined as the Member State in which
the branch is located and the supervisory authorities
and competent authorities as the authorities of
that
Member State.

situated

(29) Where there are branches in more than one Member
State of an insurance undertaking whose head office is
located outside the Community, each branch should be
treated independently with regard to the application of
this Directive.
In that case the competent authorities,
supervisory authorities, administrators and liquidators
should endeavour to coordinate their actions,

HAVE ADOPTED THIS DIRECTIVE:

TITLE I

SCOPE AND DEFINITIONS

Article 1

Scope

This Directive applies to reorganisation measures and

1.
winding-up proceedings concerning insurance undertakings.

to reorganisation measures

This Directive also applies, to the extent provided for in
2.
and winding-up
Article 30,
proceedings concerning branches
the
Community of insurance undertakings having their head office
outside the Community.

in the territory of

Article 2

Definitions

For the purpose of this Directive:

(a)

(b)

(c)

(d)

(cid:145)insurance undertaking(cid:146) means an undertaking which has
received official authorisation in accordance with Article 6
of Directive 73/239/EEC or Article 6 of Directive
79/267/EEC;

(cid:145)branch(cid:146) means any permanent presence of an insurance
undertaking in the territory of a Member State other than
the home Member State which carries out
insurance
business;

(cid:145)reorganisation measures(cid:146) means measures involving any
intervention by administrative bodies or judicial authorities
which are intended to preserve or restore the financial
situation of an insurance undertaking and which affect
pre-existing rights of parties other than the insurance
undertaking itself,
including but not limited to measures
involving the possibility of a suspension of payments,
suspension of enforcement measures or
reduction of
claims;

(cid:145)winding-up proceedings(cid:146) means
collective proceedings
involving realising the assets of an insurance undertaking
and distributing the proceeds
creditors,
shareholders or members as appropriate, which necessarily
involve any intervention by the administrative or
the
judicial authorities of a Member State, including where the
collective proceedings are terminated by a composition or
other analogous measure, whether or not they are founded
on insolvency or are voluntary or compulsory;

among the

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(e)

(f)

(g)

(cid:145)home Member State(cid:146) means the Member State in which an
insurance undertaking has been authorised in accordance
with Article 6 of Directive 73/239/EEC or Article 6 of
Directive 79/267/EEC;

(cid:145)host Member State(cid:146) means the Member State other than
the
insurance
home Member
undertaking has a branch;

in which

State

an

(cid:145)competent authorities(cid:146) means the administrative or judicial
authorities of the Member States which are competent for
the purposes of
the
winding-up proceedings;

the reorganisation measures or

(h) (cid:145)supervisory authorities(cid:146) means the competent authorities
within the meaning of Article 1(k) of Directive 92/49/EEC
and of Article 1(l) of Directive 92/96/EEC;

(i)

(j)

(k)

(cid:145)administrator(cid:146) means any person or body appointed by the
competent authorities for the purpose of administering
reorganisation measures;

(cid:145)liquidator(cid:146) means any person or body appointed by the
competent authorities or by the governing bodies of an
insurance undertaking, as appropriate, for the purpose of
administering winding-up proceedings;

in Article 1(2)

(cid:145)insurance claims(cid:146) means any amount which is owed by an
insurance undertaking to insured persons, policy holders,
beneficiaries or to any injured party having direct right of
action against the insurance undertaking and which arises
from an insurance
from any operation
contract or
and (3), of Directive
provided for
79/267/EEC in direct
including
amounts set aside for the aforementioned persons, when
some elements of
the debt are not yet known. The
premiums owed by an insurance undertaking as a result of
these insurance
the non-conclusion or cancellation of
contracts and operations
in accordance with the law
applicable to such contracts or operations before the
opening of
shall also be
the winding-up proceedings
considered insurance claims.

insurance

business,

Article 4

Adoption of reorganisation measures (cid:151) Applicable law

1.
Only the competent authorities of the home Member
State shall be entitled to decide on the reorganisation measures
with respect
including its
to an insurance undertaking,
branches in other Member States. The reorganisation measures
shall not preclude the opening of winding-up proceedings by
the home Member State.

The reorganisation measures shall be governed by the
regulations and procedures applicable in the home

2.
laws,
Member State, unless otherwise provided in Articles 19 to 26.

The reorganisation measures

shall be fully effective
3.
throughout the Community in accordance with the legislation
of the home Member State without any further formalities,
including against third parties in other Member States, even if
the legislation of those other Member States does not provide
for such reorganisation measures or alternatively makes their
implementation subject to conditions which are not fulfilled.

The reorganisation measures shall be effective throughout
4.
the Community once they become effective in the Member
State where they have been taken.

Article 5

Information to the supervisory authorities

The competent authorities of the home Member State shall
inform as a matter or urgency the home Member State’s
supervisory authorities of their decision on any reorganisation
measure, where possible before the adoption of
such a
measure
thereafter. The
that
supervisory authorities of the home Member State shall inform
as a matter of urgency the supervisory authorities of all other
reorganisation
Member States of
measures
such
measures.

the decision to adopt
including the possible practical effects of

immediately

failing

and

TITLE II

REORGANISATION MEASURES

Article 3

Scope

This Title applies to the reorganisation measures defined in
Article 2(c).

Article 6

Publication

1. Where an appeal is possible in the home Member State
against a reorganisation measure, the competent authorities of
the home Member State,
the administrator or any person
entitled to do so in the home Member State shall make public
its decision on a reorganisation measure in accordance with
the publication procedures provided for in the home Member

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Journal of

State and, furthermore, publish in the Official
the
the earliest opportunity an extract
European Communities at
from the document establishing the reorganisation measure.
The supervisory authorities of all
the other Member States
which have been informed of the decision on a reorganisation
measure pursuant to Article 5 may ensure the publication of
such decision within their
they
consider appropriate.

territory in the manner

2.
The publications provided for in paragraph 1 shall also
specify the competent authority of the home Member State,
the applicable law as provided in Article 4(2) and the
administrator appointed, if any. They shall be carried out in
the official language or in one of the official languages of the
Member State in which the information is published.

The reorganisation measures shall apply regardless of the
3.
provisions concerning publication set out in paragraphs 1 and
2 and shall be fully effective as against creditors, unless the
competent authorities of the home Member State or the law of
that State provide otherwise.

4. When reorganisation measures affect exclusively the
rights of shareholders, members or employees of an insurance
undertaking, considered in those capacities, this Article shall
not apply unless the law applicable to these reorganisation
measures provides otherwise. The competent authorities shall
determine the manner in which the interested parties affected
informed in
by such reorganisation measures
accordance with the relevant legislation.

shall be

Article 7

Information to known creditors (cid:151) Right to lodge claims

1. Where the legislation of the home Member State requires
lodgement of a claim with a view to its recognition or
provides
for compulsory notification of a reorganisation
measure to creditors who have their normal place of residence,
domicile or head office in that State, the competent authorities
the home Member State or the administrator shall also
of
inform known creditors who have their normal place of
residence, domicile or head office in another Member State, in
accordance with the procedures laid down in Articles 15 and
17(1).

the

legislation of

2. Where
the home Member State
provides for the right of creditors who have their normal place
of residence, domicile or head office in that State to lodge
claims or to submit observations concerning their claims,
creditors who have their normal place of residence, domicile
or head office in another Member State shall have the same
right to lodge claims or submit observations in accordance
with the procedures laid down in Articles 16 and 17(2).

TITLE III

WINDING-UP PROCEEDINGS

Article 8

Opening of winding-up proceedings (cid:151) Information to the
supervisory authorities

1.
Only the competent authorities of the home Member
State shall be entitled to take a decision concerning the
opening of winding-up proceedings with regard to an
insurance undertaking, including its branches in other Member
States. This decision may be taken in the absence, or following
the adoption, of reorganisation measures.

A decision adopted according to the home Member
2.
legislation concerning the opening of winding-up
State’s
proceedings of
its
an insurance undertaking,
branches in other Member States, shall be recognised without
further formality within the territory of all other Member
States and shall be effective there as soon as the decision is
effective in the Member State in which the proceedings are
opened.

including

proceedings,

3.
The supervisory authorities of the home Member State
shall be informed as a matter of urgency of the decision to
open winding-up
the
proceedings are opened and failing that immediately thereafter.
The supervisory authorities of the home Member State shall
inform as a matter of urgency the supervisory authorities of all
other Member States of
the decision to open winding-up
proceedings including the possible practical effects of such
proceedings.

possible

before

if

Article 9

Applicable law

to

an

insurance

The decision to open winding-up proceedings with
1.
the winding-up
regard
proceedings and their effects shall be governed by the laws,
regulations and administrative provisions applicable in its
home Member State unless otherwise provided in Articles 19
to 26.

undertaking,

The law of the home Member State shall determine in

2.
particular:

(a)

the assets which form part of the estate and the treatment
the insurance
of assets acquired by, or devolving on,
undertaking
the winding-up
the
proceedings;

opening

after

of

(b) the respective powers of the insurance undertaking and the

liquidator;

(c)

the conditions under which set-off may be invoked;

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(d) the effects of

the winding-up proceedings on current

(iii) claims by social security systems,

contracts to which the insurance undertaking is party;

(e)

the effects of the winding-up proceedings on proceedings
brought by individual creditors, with the exception of
lawsuits pending as provided for in Article 26;

(f)

the claims which are to be lodged against the insurance
undertaking’s estate and the treatment of claims arising
after the opening of winding-up proceedings;

(g) the rules governing the lodging, verification and admission

of claims;

(h) the rules governing the distribution of proceeds from the
realisation of assets, the ranking of claims, and the rights
of creditors who have obtained partial satisfaction after the
opening of winding-up proceedings by virtue of a right in
rem or through a set-off;

(i)

the conditions for and the effects of closure of winding-up
proceedings, in particular by composition;

(j) creditors’

rights

after

the

closure

of winding-up

proceedings;

(iv) claims on assets subject to rights in rem.

2. Without prejudice to paragraph 1, Member States may
provide that the whole or a part of the expenses arising from
the winding-up procedure, as defined by their national
legislation, shall take precedence over insurance claims.

3. Member States which have opted for
the method
provided for in paragraph 1(a) shall require that insurance
undertakings establish and keep up to date a special register in
line with the provisions set out in the Annex.

Article 11

Subrogation to a guarantee scheme

The home Member State may provide that, where the rights of
insurance creditors have been subrogated to a guarantee
scheme established in that Member State, claims by that
scheme shall not benefit from the provisions of Article 10(1).

(k) who is to bear the cost and expenses incurred in the

winding-up proceedings;

Article 12

(l)

rules

the
relating
unenforceability of
creditors.

to the
legal acts detrimental

voidness,

voidability
to all

Article 10

Treatment of insurance claims

or
the

Representation of preferential claims by assets

By way of derogation from Article 18 of Directive 73/239/EEC
and Article 21 of Directive 79/267/EEC, Member States which
apply the method set out in Article 10(1)(b) of this Directive
shall require every insurance undertaking to represent, at any
moment and independently from a possible winding-up, the
insurance claims
claims which may take precedence over
pursuant to Article 10(1)(b) and which are registered in the
insurance undertaking’s accounts, by assets mentioned in
Article 21 of Directive 92/49/EEC and Article 21 of Directive
92/96/EEC.

1. Member States shall ensure that insurance claims take
precedence over other claims on the insurance undertaking
according to one or both of the following methods:

(a)

insurance claims shall, with respect to assets representing
the technical provisions, take absolute precedence over any
other claim on the insurance undertaking;

(b)

insurance claims shall, with respect to the whole of the
insurance undertaking’s assets, take precedence over any
other claim on the insurance undertaking with the only
possible exception of:

(i) claims

by

employees

arising

from employment

contracts and employment relationships,

Article 13

Withdrawal of the authorisation

1. Where the opening of winding-up proceedings is decided
in respect of an insurance undertaking, the authorisation of the
insurance undertaking shall be withdrawn, except to the extent
necessary for the purposes of paragraph 2, in accordance with
the procedure laid down in Article 22 of Directive 73/239/EEC
and Article 26 of Directive 79/267/EEC, if the authorisation
has not been previously withdrawn.

(ii) claims by public bodies on taxes,

2.
The withdrawal of authorisation pursuant to paragraph 1
shall not prevent the liquidator or any other person entrusted

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Official Journal of the European Communities

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by the competent authorities from carrying on some of the
insurance undertakings’ activities in so far as that is necessary
or appropriate for the purposes of winding-up. The home
Member State may provide that such activities shall be carried
on with the consent and under
the
supervisory authorities of the home Member State.

the supervision of

Article 14

Publication

1.
The competent authority, the liquidator or any person
appointed for that purpose by the competent authority shall
publish the decision to open winding-up proceedings
in
accordance with the publication procedures provided for in the
from the
home Member State and also publish an extract
the European
winding-up decision in the Official
Communities. The supervisory authorities of all
the other
Member States which have been informed of the decision to
open winding-up proceedings in accordance with Article 8(3)
may ensure the publication of such decision within their
territories in the manner they consider appropriate.

Journal of

The publication of

2.
the decision to open winding-up
proceedings provided for in paragraph 1 shall also specify the
competent authority of the home Member State, the applicable
It shall be in the official
law and the liquidator appointed.
languages of the Member
language or in one of the official
State in which the information is published.

Article 15

Information to known creditors

are

authorities of

proceedings
opened,
the home Member State,

the
1. When winding-up
competent
the
liquidator or any person appointed for that purpose by the
competent authorities shall without delay individually inform
by written notice each known creditor who has his normal
place of residence, domicile or head office in another Member
State thereof.

2.
The notice referred to in paragraph 1 shall in particular
deal with time limits, the penalties laid down with regard to
those time limits, the body or authority empowered to accept
the lodgement of claims or observations relating to claims and
the other measures laid down. The notice shall also indicate
whether creditors whose claims are preferential or secured in
rem need to lodge their claims. In the case of insurance claims,
the
the notice shall
winding-up proceedings on the
in
particular, the date on which the insurance contracts or the
operations will cease to produce effects and the rights and
duties of
insured persons with regard to the contract or
operation.

further indicate the general effects of
contracts,

insurance

Article 16

Right to lodge claims

Any creditor who has his normal place of residence,
1.
domicile or head office in a Member State other than the
home Member
States’ public
authorities, shall have the right to lodge claims or to submit
written observations relating to claims.

including Member

State,

2.
The claims of all creditors who have their normal place
of residence, domicile or head office in a Member State other
including the aforementioned
than the home Member State,
authorities, shall be treated in the same way and accorded the
same ranking as claims of an equivalent nature lodgeable by
creditors who have their normal place of residence, domicile
or head office in the home Member State.

3.
Except in cases where the law of the home Member State
allows otherwise, a creditor shall send copies of supporting
documents, if any, and shall indicate the nature of the claim,
the date on which it arose and the amount, whether he alleges
preference, security in rem or reservation of title in respect of
the claim and what assets are covered by his security. The
precedence granted to insurance claims by Article 10 need not
be indicated.

Article 17

Languages and form

The information in the notice referred to in Article 15
1.
shall be provided in the official language or one of the official
languages of the home Member State. For that purpose a form
shall be used bearing the heading (cid:145)Invitation to lodge a claim;
time limits to be observed(cid:146) or, where the law of the home
Member State provides for the submission of observations
relating to claims, (cid:145)Invitation to submit observations relating to
a claim; time limits to be observed(cid:146), in all the official languages
of the European Union.

However, where a known creditor is a holder of an insurance
claim, the information in the notice referred to in Article 15
shall be provided in the official language or one of the official
languages of the Member State in which the creditor has his
normal place of residence, domicile or head office.

claim or

lodge his

the official

Any creditor who has his normal place of residence,
2.
domicile or head office in a Member State other than the
home Member State may
submit
observations relating to his claim in the official
language or
one of
that other Member State.
in that event the lodgement of his claim or the
However,
submission of observations on his claim, as appropriate, shall
bear the heading (cid:145)Lodgement of claim(cid:146) or (cid:145)Submission of
observations relating to claims(cid:146), as appropriate, in the official
language or one of the official languages of the home Member
State.

languages of

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Article 18

The rights referred to in paragraph 1 shall in particular

2.
mean:

Regular information to the creditors

Liquidators shall keep creditors regularly informed, in an
1.
appropriate manner, in particular regarding the progress of the
winding-up.

(a)

the right to dispose of assets or have them disposed of and
to obtain satisfaction from the proceeds of or income from
those assets, in particular by virtue of a lien or a mortgage;

The supervisory authorities of the Member States may
in the winding-up
the home

2.
request
information on developments
procedure from the supervisory authorities of
Member State.

(b) the exclusive right to have a claim met,

in particular a
right guaranteed by a lien in respect of the claim or by
assignment of the claim by way of a guarantee;

TITLE IV

(c)

the right to demand the assets from, and/or to require
restitution by, anyone having possession or use of them
contrary to the wishes of the party so entitled;

PROVISIONS COMMON TO REORGANISATION MEASURES
AND WINDING-UP PROCEEDINGS

(d) a right in rem to the beneficial use of assets.

Article 19

Effects on certain contracts and rights

3.
The right, recorded in a public register and enforceable
against third parties, under which a right in rem within the
meaning of paragraph 1 may be obtained, shall be considered
a right in rem.

By way of derogation from Articles 4 and 9, the effects of the
opening of
reorganisation measures or of winding-up
proceedings on the contracts and rights specified below shall
be governed by the following rules:

(a) employment contracts and employment relationships shall
be governed solely by the law of
the Member State
applicable to the employment contract or employment
relationship;

(b) a contract conferring the right to make use of or acquire
immovable property shall be governed solely by the law of
the Member State in whose territory the immovable
property is situated;

(c) rights of

the insurance undertaking with respect
to
to
immovable property, a ship or an aircraft subject
registration in a public register shall be governed by the
law of
the Member State under whose authority the
register is kept.

Article 20

Third parties’ rights in rem

1.
The opening of reorganisation measures or winding-up
proceedings shall not affect the rights in rem of creditors or
third parties in respect of tangible or intangible, movable or
immovable assets (cid:151) both specific assets and collections of
indefinite assets as a whole which change from time to time
(cid:151) belonging to the insurance undertaking which are situated
within the territory of another Member State at the time of the
opening of such measures or proceedings.

Paragraph 1 shall not preclude actions for voidness,

4.
voidability or unenforceability referred to in Article 9(2)(l).

Article 21

Reservation of title

1.
The opening of reorganisation measures or winding-up
proceedings against an insurance undertaking purchasing an
asset shall not affect the seller’s rights based on a reservation
of title where at the time of the opening of such measures or
proceedings the asset
is situated within the territory of a
Member State other than the State in which such measures or
proceedings were opened.

2.
The opening of reorganisation measures or winding-up
proceedings against an insurance undertaking selling an asset,
after delivery of the asset, shall not constitute grounds for
rescinding or terminating the sale and shall not prevent the
purchaser
the
opening of such measures or proceedings the asset sold is
situated within the territory of a Member State other than the
State in which such measures or proceedings were opened.

from acquiring title where at

the time of

3.
for
Paragraphs 1 and 2 shall not preclude actions
voidness, voidability or unenforceability referred to in Article
9(2)(l).

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L 110/37

Article 22

Set-off

The opening of reorganisation measures or winding-up
1.
proceedings shall not affect the right of creditors to demand
the set-off of their claims against the claims of the insurance
undertaking, where such a set-off
is permitted by the law
applicable to the insurance undertaking’s claim.

Paragraph 1 shall not preclude actions for voidness,

2.
voidability or unenforceability referred to in Article 9(2)(l).

Article 23

Regulated markets

to Article 20 the

effects of a
1. Without prejudice
reorganisation measure or
the opening of winding-up
proceedings on the rights and obligations of the parties to a
regulated market shall be governed solely by the law applicable
to that market.

2.
Paragraph 1 shall not preclude any action for voidness,
voidability, or unenforceability referred to in Article 9(2)(l)
which may be taken to set aside payments or transactions
under the law applicable to that market.

Article 24

Detrimental acts

Article 9(2)(l) shall not apply, where a person who has
benefited from a legal act detrimental
the creditors
provides proof that:

to all

(a)

the said act is subject to the law of a Member State other
than the home Member State, and

(b) that law does not allow any means of challenging that act

in the relevant case.

Article 25

Protection of third-party purchasers

Where, by an act
reorganisation measure or
proceedings,
consideration, of:

concluded after

the

adoption of

a
the opening of winding-up
a

disposes,

for

an insurance undertaking

(a) an immovable asset,

(b) a ship or an aircraft subject to registration in a public

register, or

(c)

transferable or other securities whose existence or transfer
presupposes entry in a register or account laid down by
law or which are placed in a central deposit system
governed by the law of a Member State,

the validity of that act shall be governed by the law of the
Member State within whose territory the immovable asset is
situated or under whose authority the register, account or
system is kept.

Article 26

Lawsuits pending

effects of

The
reorganisation measures or winding-up
proceedings on a pending lawsuit concerning an asset or a
right of which the insurance undertaking has been divested
shall be governed solely by the law of the Member State in
which the lawsuit is pending.

Article 27

Administrators and liquidators

The administrator’s or liquidator’s appointment shall be
1.
evidenced by a certified copy of
the original decision
appointing him or by any other certificate issued by the
competent authorities of the home Member State.

A translation into the official language or one of the official
languages of the Member State within the territory of which
the administrator or liquidator wishes to act may be required.
No legalisation or other similar formality shall be required.

shall be

Administrators

the home Member State. Persons

2.
entitled to
and liquidators
exercise within the territory of all the Member States all the
powers which they are entitled to exercise within the territory
of
to assist or, where
appropriate, represent administrators and liquidators may be
appointed, according to the home Member State’s legislation,
in the course of the reorganisation measure or winding-up
proceedings,
and,
specifically,
any difficulties
encountered by creditors in the host Member State.

in particular
in order

in host Member States

to help overcome

3.
In exercising his powers according to the home Member
State’s legislation, an administrator or liquidator shall comply
with the law of the Member States within whose territory he
wishes to take action, in particular with regard to procedures

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Official Journal of the European Communities

20.4.2001

for the realisation of assets and the informing of employees.
Those powers may not include the use of force or the right to
rule on legal proceedings or disputes.

Article 28

Registration in a public register

2. When an insurance undertaking whose head office is
outside the Community has branches established in more than
one Member State, each branch shall be treated independently
with regard to the application of this Directive. The competent
authorities and the supervisory authorities of these Member
to coordinate their actions. Any
States
administrators or
to
coordinate their actions.

likewise endeavour

shall endeavour

liquidators

shall

The administrator,

liquidator or any other authority or
1.
person duly empowered in the home Member State may
request that a reorganisation measure or the decision to open
winding-up proceedings be registered in the land register, the
trade register and any other public register kept in the other
Member States.

However, if a Member State prescribes mandatory registration,
the authority or person referred to in subparagraph 1 shall
take all the measures necessary to ensure such registration.

The costs of registration shall be regarded as costs and

2.
expenses incurred in the proceedings.

Article 31

Implementation of this Directive

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 20 April 2003. They shall forthwith inform
the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

Article 29

Professional secrecy

All persons required to receive or divulge information in
connection with the procedures of communication laid down
in Articles 5, 8 and 30 shall be bound by professional secrecy,
in the same manner as laid down in Article 16 of Directive
92/49/EEC and Article 15 of Directive 92/96/EEC, with the
exception of any judicial authorities to which existing national
provisions apply.

National provisions

adopted in application of

2.
this
Directive shall apply only to reorganisation measures or
winding-up proceedings adopted or opened after the date
referred to in paragraph 1. Reorganisation measures adopted
or winding up proceedings opened before that date shall
continue to be governed by the law that was applicable to
them at the time of adoption or opening.

3. Member States shall communicate to the Commission the
text of the main provisions of domestic law which they adopt
in the field governed by this Directive.

Article 30

Article 32

Entry into force

Branches of third country insurance undertakings

This Directive shall enter
publication in the Official Journal of the European Communities.

into force on the day of

its

1.
Notwithstanding the definitions laid down in Article 2(e),
(f) and (g) and for the purpose of applying the provisions of
this Directive to the reorganisation measures and winding-up
proceedings concerning a branch situated in a Member State of
an insurance undertaking whose head office is located outside
the Community:

(a)

(cid:145)home Member State(cid:146) means the Member State in which
the branch has been granted authorisation according to
Article 23 of Directive 73/239/EEC and Article 27 of
Directive 79/267/EEC, and

Article 33

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 19 March 2001.

(b)

(cid:145)supervisory authorities(cid:146) and (cid:145)competent authorities(cid:146) mean
such authorities of the Member State in which the branch
was authorised.

For the European Parliament

The President

N. FONTAINE

For the Council

The President

A. LINDH

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Official Journal of the European Communities

L 110/39

ANNEX

SPECIAL REGISTER REFERRED TO IN ARTICLE 10(3)

1.

Every insurance undertaking must keep at its head office a special register of the assets used to cover the technical
provisions calculated and invested in accordance with the home Member State’s rules.

2. Where an insurance undertaking transacts both non-life and life business, it must keep at its head office separate
registers for each type of business. However, where a Member State authorises insurance undertakings to cover life
and the risks listed in points 1 and 2 of Annex A to Directive 73/239/EEC, it may provide that those insurance
undertakings must keep a single register for the whole of their activities.

3. The total value of the assets entered, valued in accordance with the rules applicable in the home Member State,

must at no time be less than the value of the technical provisions.

4. Where an asset entered in the register is subject to a right in rem in favour of a creditor or a third party, with the
result that part of the value of the asset is not available for the purpose of covering commitments, that fact is
recorded in the register and the amount not available is not included in the total value referred to in point 3.

5. Where an asset employed to cover technical provisions is subject to a right in rem in favour of a creditor or a
third party, without meeting the conditions of point 4, or where such an asset is subject to a reservation of title in
favour of a creditor or of a third party or where a creditor has a right to demand the set-off of his claim against
the claim of the insurance undertaking, the treatment of such asset in case of the winding-up of the insurance
undertaking with respect to the method provided for in Article 10(1)(a) shall be determined by the legislation of
the home Member State except where Articles 20, 21 or 22 apply to that asset.

6. The composition of the assets entered in the register in accordance with points 1 to 5, at the time when
winding-up proceedings are opened, must not thereafter be changed and no alteration other than the correction of
purely clerical errors must be made in the registers, except with the authorisation of the competent authority.

7. Notwithstanding point 6, the liquidators must add to the said assets the yield therefrom and the value of the pure
the winding-up

premiums received in respect of
proceedings and the time of payment of the insurance claims or until any transfer of portfolio is effected.

the class of business concerned between the opening of

8.

If the product of the realisation of assets is less than their estimated value in the registers, the liquidators must be
required to justify this to the home Member States’ competent authorities.

9. The supervisory authorities of the Member States must take appropriate measures to ensure full application by the

insurance undertakings of the provisions of this Annex.