Proposal for a Directive of the European Parliament and of the Council amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC , 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of shareholdings in the financial sector {SEC(2006) 1117} {SEC(2006) 1118}
Date: 2006-09-12
Institutions: European Commission
Subjects: credit institution, financial instrument, financial market, freedom to provide services, insurance, reinsurance, securities

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.9.2006 
COM(2006) 507 final 

2006/0166 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC , 
2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the 
prudential assessment of acquisitions and increase of shareholdings in the financial 
sector 

(presented by the Commission) 

{SEC(2006) 1117} 
{SEC(2006) 1118} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

This  proposal  aims  to  considerably  improve  the  legal  certainty,  clarity  and 
transparency  of  the  supervisory  approval  process  with  regard  to  acquisitions  and 
increase of shareholdings in the banking, insurance and securities sectors. 

1.2. 

General context 

The  EU  single  financial  market  goes  hand  in  hand  with  prudential  soundness  and 
financial  stability.  Steady  EU-led  convergence 
in  regulatory  requirements, 
underpinned  by  common  ground-rules  and  pragmatic  means  of  implementing  and 
applying  the  Community  Directives  for  a  single  market  for  financial  services  has 
already contributed greatly to achieving this goal. Cross-border consolidation is the 
result of business decisions made by market participants. Although consolidation is 
not an end in itself, it remains a means to achieve greater efficiency. Market driven 
consolidation allows institutions to reach their potential and compete internationally. 
An important aspect of the single market is the removal of any unjustifiable obstacles 
to  the  smooth  functioning  of  the  internal  market.  Undue  interference  by  regulators, 
national  or  supra-national  authorities  in  the  implementation  of  a  business  decision 
that  would  have  resulted  in  consolidation  could  effectively  prevent  the  proper 
functioning of the market. In the extreme, an abusive use of powers could frustrate 
and render impractical an otherwise economically justifiable initiative. 

The current system of prudential supervision in the European Union is based on the 
principle  of  responsibility  for  the  competent  authorities  of  home  Member  States. 
There  is  also  an  underlying  requirement  for  the  competent  authorities  of  home  and 
host  Member  States  to  collaborate  closely  in  order  to  supervise  the  activities  of 
institutions operating in Member States other than that in which their head offices are 
located.  

1.3. 

Existing provisions in Community legislation 

The  existing  legal  framework1regulates  the  situation  when  an  acquirer  wishes  to 
acquire a holding or increase a holding in a financial institution or investment firm in 
the  domestic  as  well  as  in  the  cross-border  context.  The  competent  national 
authorities are able to oppose an acquisition if, in view of the need to ensure sound 
and prudent management of the institution, they are not satisfied as to the suitability 
of  the  acquirer.  The  current  legal  framework  does  not  provide  specific  criteria  for 
assessing the suitability of the acquirer and has thus afforded considerable latitude to 
the  relevant  authorities  in  accepting,  discouraging  or  rejecting  a  proposed 
acquisition. Furthermore, the current Directives do not set out in detail the procedure 
by which acquisitions are assessed.  

1 

Article  19  of  Directive  2006/48/EC,  Article  15  of  Directive  92/49/EEC,  Article  15  of  Directive 
2002/83/EC, Articles 20-23 of Directive 2005/68/EC and Article 10 of Directive 2004/39/EC. 

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1.4. 

The proposal 

This amending proposal modifies the existing framework considerably with regard to 
the  procedure  as  well  as  the  criteria  to  be  examined  by  the  competent  authorities 
when assessing the suitability of a proposed acquirer.  

The amended Directives set out the entire procedure to be applied by the competent 
authorities  when  assessing  acquisitions  on  prudential  grounds.  A  clear  and 
transparent  notification  and  decision-making  process  for  competent  authorities  and 
firms has been introduced. The deadlines have been reduced and any 'stopping of the 
clock' by competent authorities has been limited to one occasion and subject to clear 
conditions. 

The prudential criteria for the supervisory assessment have also been clearly laid out 
and  will  be  known  up  front  to  market  participants.  This  will  ensure  more  certainty 
and  predictability  with  regard  to  the  criteria  to  be  applied  by  the  competent 
authorities when assessing the suitability of an acquisition.  

The amended Directives provide for a closed list of criteria to assess the suitability of 
the  acquirer.  This  implies  full  harmonisation  for  the  purposes  of  a  suitability 
assessment throughout the European Union. These criteria will be the reputation of 
the proposed acquirer, the reputation and experience of any person that may run the 
resulting institution or firm, the financial soundness of the proposed acquirer, the on-
going  compliance  with  the  relevant  sectoral  Directives  and  the  risk  of  money 
laundering and terrorism financing.  

2. 

RESULTS OF CONSULTATIONS WITH INTERESTED PARTIES 

2.1. 

Consultations 

•  The EBC Working Group on Cross Border Consolidation met on 21 March and 5 
October  2005.  This  working  group  was  subsequently  extended  to  include  the 
insurance and the securities sector; 

•  A  meeting  of  the  Joint  EBC-EIOPC-ESC  Working  Group  on  Cross  Border 

Consolidation was held on 3 February 2006; 

•  A public consultation was conducted during March and April 2006 regarding the 
existing supervisory arrangements in the banking, insurance and securities sectors.  

Improvements to the current provisions in terms of procedure and assessment criteria 
have been developed taking account of the discussions in the various working groups 
and the responses to the public consultation. 

2.2. 

Collection and use of expertise 

The  Committee  of  European  Banking  Supervisors  (CEBS)  was  mandated  by  the 
Commission at the end of January 2005 to provide technical advice on the review of 
Article 16 of Directive 2000/12/EC.  

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The advice received from CEBS while establishing some precision and constructive 
suggestions  on  procedure  emphasised  that  'Article  16  must  leave  a  good  deal  of 
flexibility and discretion to the competent authorities if it is to work properly'. CEBS 
also indicates that the mandate of the Commission 'did not request CEBS to obtain 
evidence  on  whether  Article  16  has  been  abused  by  Member  States'  competent 
authorities or was a direct cause of the (perceived) slower pace of M&A activities in 
the financial sector.' 

The CEBS advice was used in conjunction with the consultations referred to above in 
the  development  of  this  proposal.  As  a  consequence  the  Commission  has  taken  an 
approach that significantly curtails the discretion for competent authorities in making 
a prudential assessment. This was deemed crucial in order to achieve legal certainty, 
clarity and predictability for market participants. 

As a part of the on-going Solvency II project in the insurance sector, the Commission 
in  December  2004  asked  the  Committee  of  European  Insurance  and  Occupational 
Pensions Supervisors (CEIOPS) to provide technical advice with regard to the fit and 
proper requirements of the Insurance Directives, including the supervisory approval 
process in Article 15 of Directive 92/49/EEC and 2002/83/EC.  

3. 

IMPACT ASSESSMENT 

The  options  examined  in  the  Impact  Assessment2  include  a  'do  nothing'-option  as 
well  as  legally  binding  and  non-binding  regulatory  options.  After  a  careful 
examination  of  the  different  alternatives,  the  Impact  Assessment  concludes  that  a 
legally binding regulatory solution is necessary in order to achieve the objectives of 
legal certainty, clarity and transparency for competent authorities as well as market 
participants.  To  meet  these  objectives  and  to  ensure  consistency  within  sectors  as 
well  as  between  sectors,  it  is  concluded  in  the  Impact  Assessment  that  it  is 
appropriate to aim for a high level of harmonisation with regard to the procedure as 
well  as  the  criteria  for  the  prudential  assessment.  A  lower  level  of  harmonisation  - 
leaving  considerable  flexibility  to  Member  States  and  their  competent  authorities  - 
would  not  fulfil  the  explicit  aims  of  increased  legal  certainty,  predictability  and 
consistency in relation to the supervisory assessments of acquisitions and increased 
shareholdings in financial institutions and investment firms.  

The proposal would not seem to lead to any additional administrative costs. 

4. 

PROVISIONS FOR REGULATED MARKETS 

One of the principles underlying the MiFID is that there should be, as far as possible, 
parallel  provisions  for  investment  firms  and  regulated  markets.  This  parallelism 
exists  between  Article  10  (which  applies  to  investment  firms)  and  Article  38  (the 
corresponding  provision  relating  to  regulated  markets).  In  view  of  this  parallelism, 
and  in  view  also  of  the  potential  for  further  consolidation  in  the  area  of  stock 
exchanges,  the  Commission  will  consider  urgently  whether  it  is  necessary  and 
possible to extend the procedures and criteria established in this proposal to regulated 

2 

In attachment. 

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markets.  The  aim  of  such  a  move  would  be  to  increase  legal  certainty  for  all 
interested  parties  when  they  are  subjected  to  the  scrutiny  by  competent  authorities 
and  to  facilitate  the  smooth  functioning  of  the  Internal  Market  (by  preventing 
protectionist reactions on the part of Member States). In determining whether or not 
to go ahead, the Commission will take into account the special nature of the business 
conducted by regulated markets as well as the views of stakeholders and regulators. 
The Commission will decide on the appropriateness of such an intervention as soon 
as possible.  

5. 

LEGAL ELEMENTS OF THE PROPOSAL 

The  legal  basis  of  the  proposal,  which  is  an  amending  Directive,  remains  the  legal 
basis for the directives being amended i.e. Articles 47(2) and 55 EC.  

In  accordance  with  the  principles  of  subsidiarity  and  proportionality  as  set  out  in 
Article  5  EC,  the  objectives  of  the  proposed  action,  namely  the  establishment  of 
harmonised  procedural  rules  and  assessment  criteria  throughout  the  Community, 
cannot  be  sufficiently  achieved  by  the  Member  States  and  can  therefore  be  better 
achieved  by  the  Community.  This  Directive  stipulates  the  requirements  in  order  to 
achieve those objectives and does not go beyond what is necessary for that purpose. 

In  view  of  the  requirement  of  consistent  rules  right  across  the  Community,  an 
amending Directive laying out the procedure and the criteria was considered the most 
appropriate instrument. 

6. 

BUDGETARY IMPLICATION 

There  are  no  budgetary  implications  of  the  initiative  nor  are  additional  human  and 
administrative resources required. 

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2006/0166 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC , 
2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the 
prudential assessment of acquisitions and increase of shareholdings in the financial 
sector 

(Texte with EEA relevance) 

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 Commission3, 

Having regard to the opinion of the European Economic and Social Committee4,  

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

Whereas: 

(1) 

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)5, Directive 2002/83/EC of the European Parliament and of the Council of 5 
November  2002  concerning  life  assurance6,  Directive  2004/39/EC  of  the  European 
Parliament  and  of  the  Council  of  21  April  2004  on  markets  in  financial  instruments 
amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of 
the  European  Parliament  and  of  the  Council  and  repealing  Council  Directive 
93/22/EEC7, Directive 2005/68/EC of the European Parliament and of the Council of 
16  November  2005  on  reinsurance  and  amending  Council  Directives  73/239/EEC, 
92/49/EEC  as  well  as  Directives  98/78/EC  and  2002/83/EC8  and  Directive 
2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to 

3 
4 
5 
6 

7 

8 

OJ C , , p. . 
OJ C , , p. . 
OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 2005/1/EC (OJ L 79, 24.3.2005, p. 9). 
OJ L 345, 19.12.2002, p. 1. Directive as last amended by Directive 2005/68/EC (OJ L 323, 9.12.2005, 
p. 1). 
OJ L 145, 30.4.2004, p. 1. Directive as last amended by Directive 2006/31/EC (OJ L 114, 27.4.2006, p. 
60). 
OJ L 323, 9.12.2005, p. 1. 

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the  taking  up  and  pursuit  of  the  business  of  credit  institutions  (recast)9  regulate  the 
situation  when  an  acquirer  proposes  to  acquire  or  increase  a  qualifying  holding  in  a 
credit  institution,  assurance,  insurance  or  re-insurance  undertaking  or  an  investment 
firm.  

That  legal  framework  does  not,  however,  provide  detailed  criteria  for  a  prudential 
assessment of the proposed acquisition or increase in holding nor a procedure for their 
application. This has resulted in a lack of legal certainty, clarity and predictability with 
regard to the assessment process as well as to the result thereof. 

The role of the competent authorities in both domestic and cross-border cases should 
be to carry out a prudential assessment within a framework of clear assessment criteria 
and  procedures.  It  is  therefore  necessary  to  specify  criteria  for  the  supervisory 
assessment  of  shareholders  and  management  in  relation  to  a  proposed  acquisition  or 
increase of a qualifying holding and a clear procedure for their application. To ensure 
coherence  those  criteria  should  be  consistent  with  the  criteria  applied  in  relation  to 
shareholders and management in the initial authorisation procedure. 

For markets that are increasingly integrated and where group structures may extend to 
various Member States, the acquisition of a qualifying holding is subject to scrutiny in 
a  number  of  Member  States  and  harmonisation  throughout  the  Community  of  the 
procedure  and  the  prudential  assessments,  without  the  Member  States  laying  down 
stricter rules, is critical.  

(2) 

(3) 

(4) 

(5)  With  regard  to  the  prudential  assessment,  the  criterion  concerning  the  'reputation  of 
the proposed acquirer' implies the determination of whether any doubts exist about the 
integrity  and  professional  competence  of  the  proposed  acquirer  and  whether  these 
doubts are founded; such doubts may arise, for instance, from past business conduct. 
The assessment of the reputation is of particular relevance if the proposed acquirer is 
an unregulated entity. 

(6) 

(7) 

(8) 

In order to fulfil its role under the Treaty and to be able to assess whether the criteria 
for  the  suitability  assessment  need  further  clarification,  the  Commission  should  be 
entitled  to  request  copies  of  the  documents  on  which  the  competent  authorities  have 
based their prudential assessment.  

The  assessment  criteria  may,  in  the  future,  need  adaptations  to  take  into  account 
market  developments  and  the  need  for  a  uniform  application  throughout  the 
Community. It is therefore appropriate to adopt the necessary measures in accordance 
with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for 
the exercise of implementing powers conferred on the Commission10. 

Since the objectives of the action to be taken, namely the establishment of harmonised 
procedural  rules  and  assessment  criteria  throughout  the  Community,  cannot  be 
sufficiently achieved by the Member States and can therefore, by reason of their scale 
and  effects,  be  better  achieved  at  Community  level,  the  Community  may  adopt 
measures in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty. In accordance with the principle of proportionality, as set out in that Article, 

9 
10 

OJ L 177, 30.6.2006, p.1. 
OJ L 184, 17.7.1999, p.23. 

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this  Directive  does  not  go  beyond  what  is  necessary  in  order  to  achieve  those 
objectives. 

(9) 

Directives 92/49/EEC, 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC should 
therefore be amended accordingly,  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1  

Amendments to Directive 92/49/EEC 

Directive 92/49/EEC is amended as follows: 

1. 

In Article 1the second subparagraph of point (g) is replaced by the following:: 

For  the  purposes  of  this  definition,  in  the  context  of  Articles  8  and  15  and  of  the 
other  levels  of  holding  referred  to  in  Article  15,  the  voting  rights  referred  to  in 
Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of  the 
Council* [], shall be taken into consideration; 

_________ 

* 

OJ L 390, 31.12.2004, p. 38. 

Article 15 is amended as follows: 

Paragraph 1 is replaced by the following: 

“1. Member States shall require any natural or legal person or such persons acting in 
concert  who  have  taken  a  decision  to  either  acquire,  directly  or  indirectly  a 
qualifying  holding  in  an  insurance  undertaking  or  to,  directly  or  indirectly  further 
increase  such  qualifying  holding  as  a  result  of  which  the  proportion  of  the  voting 
rights or of the capital held would reach or exceed 20%, 30% or 50% or so that the 
insurance undertaking would become its subsidiary, hereinafter “proposed acquirer” 
to  notify  in  writing  to  the  competent  authorities  of  the  insurance  undertaking  in 
which  they  are  either  seeking  to  acquire  a  qualifying  holding  or  to  increase  such  a 
qualifying  holding  the  size  of  the  intended  holding  and  relevant  information  as 
referred to in Article 15b(4). 

Paragraph 1a is deleted; 

In paragraph 2 the figure “33%” is replaced by the figure “30%”; 

2. 

(a) 

(b) 

(c) 

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3. 

The following Articles 15a to 15d are inserted:  

“Article 15a 

The competent authorities shall, promptly and in any case within two working 
1. 
days  upon  receipt  of  the  notification  required  under  Article  15(1)  acknowledge 
receipt thereof in writing to the proposed acquirer. 

The  competent  authorities  shall  have  a  maximum  of  thirty  working  days  from  the 
date of the written acknowledgement of receipt, hereinafter "assessment period", to 
oppose the proposal of the proposed acquirer. 

2. 
The competent authorities may if necessary, request further information within 
five working days of the date of the acknowledgment of receipt referred to in the first 
subparagraph  of  paragraph  1,  in  order  to  carry  out  the  assessment  referred  to  in 
Article 15b(1). 

This  request  for  further  information  shall  be  made  in  writing  and  shall  specify  the 
additional pieces of information needed.  

The information requested shall be provided to the competent authorities within ten 
working  days.  For  the  period  between  the  date  of  request  for  information  by  the 
competent authorities and the receipt of a response thereto by the proposed acquirer, 
the  assessment  period  shall  be  interrupted.  The  interruption  shall  not  exceed  ten 
working days. Any further requests for information by the competent authorities may 
not result in an interruption of the assessment period. 

3. 
If  the  competent  authorities,  upon  completion  of  their  assessment,  decide  to 
oppose  the  proposed  acquisition  or  the  proposed  increase  of  holding,  they  shall, 
within two working days, and not going beyond the period mentioned in Art. 15 a (1) 
second  subparagraph,  inform  the  proposed  acquirer  in  writing  and  provide  the 
reasons for the decision. 

If  the  competent  authorities  do  not  oppose  within  the  assessment  period  in 
4. 
writing the proposed acquisition or increase of holding referred to in Article 15(1), 
the proposed acquisition or increase of holding shall be deemed to be approved. The 
competent authorities shall inform the proposed acquirer about the date of the expiry 
of the assessment period at the time of acknowledgement referred to in paragraph 1 
and,  if  applicable,  at  the  time  of  the  request  for  further  information  referred  to  in 
paragraph 2. 

The competent authorities may extend the assessment period to a maximum of 
5. 
fifty working days if the proposed acquirer is regulated outside the Community and 
is situated in a third country where there are legal impediments to the transfer of the 
necessary information.  

The competent authorities may fix a maximum period for the completion of the 

6. 
proposed acquisition or the increase of holding. 

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Article 15b 

1. 
In assessing the notification provided for in Article 15(1) and the information 
referred  to  in  Article  15a(2),  the  competent  authorities  shall,  having  regard  to  the 
likely  influence  of  the  proposed  acquirer  on  the  insurance  undertaking,  assess  the 
suitability  of  the  proposed  acquirer  and  the  financial  soundness  of  the  proposed 
acquisition against all of the following criteria: 

(a) 

the reputation of the proposed acquirer; 

the reputation and experience of any person who will direct the business of the 

(b) 
insurance undertaking as a result of the proposed acquisition; 

(c) 
the financial soundness of the proposed acquirer, in particular in relation to the 
type  of  business  pursued  and  envisaged  in  the  insurance  undertaking  in  which  the 
acquisition is sought;  

(d)  whether the insurance undertaking will be able to meet and continue to meet its 
obligations under this Directive and any applicable sectoral rules within the meaning 
of  Article  2(7)  of  Directive  2002/87/EC  of  the  European  Parliament  and  of  the 
Council* following the proposed acquisition; 

(e)  whether  there  are  reasonable  grounds  to  suspect  that,  in  connection  with  the 
proposed acquisition, money laundering or terrorist financing within the meaning of 
Directive 2005/60/EC of the European Parliament and of the Council** is being or 
has been committed or attempted, or that the proposed acquisition could increase the 
risk of such conduct. 

2. 
The  competent  authorities  may  oppose  the  proposed  acquisition  only  if  they 
find that the criteria set out in paragraph 1 are not met or if the information provided 
by the proposed acquirer is incomplete.  

3.  Member States shall neither impose any prior conditions in respect of the level 
of  shareholding  that  must  be  acquired  nor  examine  the  acquisition  in  terms  of 
economic needs of the market. 

4.  Member States shall make publicly available a list specifying the information 
necessary to make the assessment under paragraph 1.  

The level of information required shall be proportionate and adapted to the nature of 
the proposed acquisition or increase of holding. 

Member  States  shall  not  require  information  that  is  not  relevant  for  a  prudential 
assessment. 

5.  Where two or more proposals to acquire or increase qualifying shareholdings 
in the same insurance undertaking have been notified to the competent authority, the 
latter shall ensure that all the proposed acquirers are treated in a non-discriminatory 
manner. 

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Article 15c 

In addition to Article 15(1) and Articles 15a and 15b and unless specified otherwise, 
the  relevant  competent  authorities  shall  consult  each  other  when  assessing  the 
acquisition in accordance with Article 15b(1) if the proposed acquirer is one of the 
following: 

(1) 
a credit institution, assurance undertaking, insurance undertaking, reinsurance 
undertaking, investment firm or management company within the meaning of Article 
1a(2)  of  Council  Directive  85/611/EEC***,  hereinafter  “UCITS  management 
company”, authorised in another Member State; 

the parent undertaking of a credit institution, assurance undertaking, insurance 
(2) 
undertaking,  reinsurance  undertaking,  investment  firm  or  UCITS  management 
company authorised in another Member State; 

a natural or legal person controlling a credit institution, assurance undertaking, 
investment  firm  or  UCITS 

(3) 
insurance  undertaking,  reinsurance  undertaking, 
management company authorised in another Member State.  

The  competent  authorities  shall  cooperate  closely.  They  shall  provide  one  another 
with  any  information  which  is  essential  or  relevant  for  the  exercise.  In  this  regard, 
the  competent  authorities  shall  communicate  to  each  other  on  request  all  relevant 
information and shall communicate on their own initiative all essential information. 

Article 15d 

1. 
The Commission may request the competent authorities to provide it promptly 
with copies of the documents on which they have based their assessment in relation 
to  Articles  15(1),  15a,  15b  and  15c  as  well  as  the  reasons  given  to  the  proposed 
acquirer. 

2. 
The  information  provided  to  the  Commission  shall  be  covered  by  the 
obligation  of  professional  secrecy  and  shall  be  used  by  it  only  for  the  purposes  of 
determining  whether  a  Member  State  has  fulfilled  its  obligations  under  this 
Directive. 

All persons working for or who have worked for the Commission, as well as auditors 
or  experts  acting  on  behalf  of  the  Commission  shall  be  bound  by  the  obligation  of 
professional secrecy. 

No  confidential  information  which  the  Commission  may  receive  by  virtue  of 
3. 
paragraph  1  may  be  divulged  to  any  person  or  authority  whatsoever,  except  in 
summary or collective form, such that individual proposed acquirers or the insurance 
undertakings concerned cannot be identified.  

_________ 

* 

OJ L 35, 11.2.2003, p. 1. 

**  OJ L 309, 25.11.2005 p. 15. 

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***  OJ L 375, 31. 12. 1985, p.3.” 

4. 

In Article 51, the following indent is added: 

“- specifications and clarifications of the criteria set out in Article15b(1) in order to 
take  account  of  future  developments  and  to  ensure  the  uniform  application  of  this 
Directive.” 

Article 2 

Amendments to Directive 2002/83/EC 

Directive 2002/83/EC is amended as follows: 

1. 

In Article 1 point (j) the second subparagraph is replaced by the following: 

“For  the  purposes  of  this  definition,  in  the  context  of  Articles  8  and  15  and  of  the 
other  levels  of  holding  referred  to  in  Article  15,  the  voting  rights  referred  to  in 
Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of the 
Council*, shall be taken into consideration;  

2. 

(a) 

(b) 

3. 

_________ 

* 

OJ L 390, 31.12.2004, p. 38” 

Article 15 is amended as follows: 

Paragraph 1 is replaced by the following: 

“1. Member States shall require any natural or legal person or such persons acting in 
concert  who  have  taken  a  decision  to  either  acquire,  directly  or  indirectly  a 
qualifying  holding  in  an  assurance  undertaking  or  to,  directly  or  indirectly  further 
increase  such  qualifying  holding  as  a  result  of  which  the  proportion  of  the  voting 
rights or of the capital held would reach or exceed 20%, 30% or 50% or so that the 
assurance undertaking would become its subsidiary, hereinafter “proposed acquirer” 
to  notify  in  writing  to  the  competent  authorities  of  the  assurance  undertaking  in 
which  they  are  either  seeking  to  acquire  a  qualifying  holding  or  to  increase  such  a 
qualifying  holding  the  size  of  the  intended  holding  and  relevant  information  as 
referred to in Article 15b (4).” 

In paragraph 2 the figure “33%” is replaced by the figure “30%”. 

The following Articles 15a to 15d are inserted: 

“Article 15a 

1. 
The competent authorities shall, promptly and in any case within two working 
days  upon  receipt  of  the  notification  required  under  Article  15(1)  acknowledge 
receipt thereof in writing to the proposed acquirer. 

EN 

12 

   EN 

 
The  competent  authorities  shall  have  a  maximum  of  thirty  working  days  from  the 
date  of  the  written  acknowledgement  of  receipt,  hereinafter  "assessment  period"  to 
oppose the proposal of the proposed acquirer. 

The competent authorities may if necessary, request further information within 
2. 
five working days of the date of the acknowledgment of receipt referred to in the first 
subparagraph  of  paragraph  1,  in  order  to  carry  out  the  assessment  referred  to  in 
Article 15b(1). 

This  request  for  further  information  shall  be  made  in  writing  and  shall  specify  the 
additional pieces of information needed. 

The information requested shall be provided to the competent authorities within ten 
working  days.  For  the  period  between  the  date  of  request  for  information  by  the 
competent authorities and the receipt of a response thereto by the proposed acquirer, 
the  assessment  period  shall  be  interrupted.  The  interruption  shall  not  exceed  ten 
working days. Any further requests for information by the competent authorities may 
not result in an interruption of the assessment period. 

If  the  competent  authorities,  upon  completion  of  their  assessment,  decide  to 
3. 
oppose  the  proposed  acquisition  or  the  proposed  increase  of  holding,  they  shall, 
within two working days, and not going beyond the period mentioned in Art. 15 a (1) 
second  subparagraph,  inform  the  proposed  acquirer  in  writing  and  provide  the 
reasons for the decision. 

4. 
If  the  competent  authorities  do  not  oppose  within  the  assessment  period  in 
writing the proposed acquisition or increase of holding referred to in Article 15(1), 
the proposed acquisition or increase of holding shall be deemed to be approved. The 
competent authorities shall inform the proposed acquirer about the date of the expiry 
of the assessment period at the time of acknowledgement referred to in paragraph 1 
and,  if  applicable,  at  the  time  of  the  request  for  further  information  referred  to  in 
paragraph 2. 

5. 
The competent authorities may extend the assessment period to a maximum of 
fifty working days if the proposed acquirer is regulated outside the Community, and 
is situated in a third-country where there are legal impediments to the transfer of the 
necessary information. 

The competent authorities may fix a maximum period for the completion of the 

6. 
proposed acquisition or the increase of holding. 

Article 15b  

1. 
In assessing the notification provided for in Article 15(1) and the information 
referred  to  in  Article  15a(2),  the  competent  authorities  shall,  having  regard  to  the 
likely  influence  of  the  proposed  acquirer  on  the  assurance  undertaking;  assess  the 
suitability  of  the  proposed  acquirer  and  the  financial  soundness  of  the  proposed 
acquisition against all of the following criteria: 

(a) 

the reputation of the proposed acquirer; 

EN 

13 

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the reputation and experience of any person who will direct the business of the 

(b) 
assurance undertaking as a result of the proposed acquisition; 

(c) 
the financial soundness of the proposed acquirer, in particular in relation to the 
type  of  business  pursued  and  envisaged  in  the  assurance  undertaking  in  which  the 
acquisition is sought;  

(d)  whether the assurance undertaking will be able to meet and continue to meet its 
obligations under this Directive and any applicable sectoral rules within the meaning 
of  Article  2(7)  of  Directive  2002/87/EC  of  the  European  Parliament  and  of  the 
Council* following the proposed acquisition; 

(e)  whether  there  are  reasonable  grounds  to  suspect  that,  in  connection  with  the 
proposed acquisition, money laundering or terrorist financing within the meaning of 
Directive 2005/60/EC of the European Parliament and of the Council** is being or 
has been committed or attempted, or that the proposed acquisition could increase the 
risk of such conduct.' 

2. 
The  competent  authorities  may  oppose  the  proposed  acquisition  only  if  they 
find that the criteria set out in paragraph 1 are not met or if the information provided 
by the proposed acquirer is incomplete.  

3.  Member States shall neither impose any prior conditions in respect of the level 
of  shareholding  that  must  be  acquired  nor  examine  the  acquisition  in  terms  of 
economic needs of the market. 

4.  Member States shall make publicly available a list specifying the information 
necessary to make the assessment under paragraph 1.  

The level of information required shall be proportionate and adapted to the nature of 
the proposed acquisition or increase of holding.  

Member  States  shall  not  require  information  that  is  not  relevant  for  a  prudential 
assessment.' 

5.  Where two or more proposals to acquire or increase qualifying shareholdings 
in the same assurance undertaking have been notified to the competent authority, the 
latter shall ensure that all the proposed acquirers are treated in a non-discriminatory 
manner. 

Article 15c 

In addition to Article 15(1) and Articles 15a and 15b and unless specified otherwise 
the  relevant  competent  authorities  shall  consult  each  other  when  assessing  the 
acquisition in accordance with Article 15b(1) , if the proposed acquirer is one of the 
following: 

(1) 
a credit institution, assurance undertaking, insurance undertaking, reinsurance 
undertaking, investment firm or management company within the meaning of Article 
1a(2)  of  Council  Directive  85/611/EEC***,  hereinafter  “UCITS  management 
company”, authorised in another Member State; 

EN 

14 

   EN 

 
(2) 
the parent undertaking of a credit institution, assurance undertaking, insurance 
undertaking,  reinsurance  undertaking,  investment  firm  or  UCITS  management 
company authorised in another Member State; 

a natural or legal person controlling a credit institution, assurance undertaking, 
investment  firm  or  UCITS 

(3) 
insurance  undertaking,  reinsurance  undertaking, 
management company authorised in another Member State. 

The  competent  authorities  shall  cooperate  closely.  They  shall  provide  one  another 
with  any  information  which  is  essential  or  relevant  for  the  exercise.  In  this  regard, 
the  competent  authorities  shall  communicate  to  each  other  on  request  all  relevant 
information and shall communicate on their own initiative all essential information. 

Article 15d 

The Commission may request the competent authorities to provide it promptly 
1. 
with copies of the documents on which they have based their assessment in relation 
to  Articles  15(1),  15a,  15b  and  15c  as  well  as  the  reasons  given  to  the  proposed 
acquirer. 

2. 
The  information  provided  to  the  Commission  shall  be  covered  by  the 
obligation  of  professional  secrecy  and  shall  be  used  by  it  only  for  the  purposes  of 
determining  whether  a  Member  State  has  fulfilled  its  obligations  under  this 
Directive.  

All persons working for or who have worked for the Commission, as well as auditors 
or  experts  acting  on  behalf  of  the  Commission  shall  be  bound  by  the  obligation  of 
professional secrecy. 

3. 
No  confidential  information  which  the  Commission  may  receive  by  virtue  of 
paragraph  1  may  be  divulged  to  any  person  or  authority  whatsoever,  except  in 
summary or collective form, such that individual proposed acquirers or the assurance 
undertakings concerned cannot be identified.  

_________ 

* 

OJ L 35, 11.2.2003, p. 1. 

**  OJ L 309, 25.11.2005 p. 15. 

***  OJ L 375, 31.12.1985, p.3.” 

4. 

In Article 64, the following indent is added: 

“- specifications and clarifications of the criteria set out in Article 15b(1), in order to 
take  account  of  future  developments  and  to  ensure  the  uniform  application  of  this 
Directive.” 

EN 

15 

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Article 3 

Amendments to Directive 2004/39/EC 

Directive 2004/39/EC is amended as follows: 

1. 

In article 4(1) point (27) is replaced by the following: 

“(27) “Qualifying  holding’  means  any  direct  or  indirect  holding  in  an  investment 
firm which represents 10% or more of the capital or of the voting rights, as set out in 
Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of the 
Council*,  or  which  makes  it  possible  to  exercise  a  significant  influence  over  the 
management of the investment firm in which that holding subsists;  

_________ 

* 

OJ L 390, 31.12.2004, p.38.” 

2. 

In Article 10: paragraphs 3 and 4 are replaced by the following: 

3.  Member States shall require any natural or legal person or such persons acting 
in  concert  who  have  taken  a  decision  to  either  acquire,  directly  or  indirectly  a 
qualifying holding in an investment firm or to, directly or indirectly, further increase 
such a qualifying holding as a result of which the proportion of the voting rights or of 
the capital held would reach or exceed 20%, 30% or 50% or so that the investment 
firm  would  become  its  subsidiary,  hereinafter  “proposed  acquirer”,  to  notify  in 
writing to the competent authorities of the investment firm in which they are either 
seeking to acquire a qualifying holding or to increase such a qualifying holding the 
size of the intended holding and relevant information as referred to in Article 10b(4). 

Member  States  shall  require  any  natural  or  legal  person  who  proposes  to  dispose, 
directly  or  indirectly,  of  a  qualifying  holding  in  investment  firm  to  inform  the 
competent  authorities,  of  the  size  of  the  resulting  holding.  Such  persons  must 
likewise inform the competent authorities if they proposes to reduce their qualifying 
holding so that the proportion of the voting rights or of the capital held by him would 
fall below 20%, 30% or 50% or so that the investment firm would cease to be their 
subsidiary  

The  assessment  of  the  acquisition  in  accordance  with  Article  10b(1)  shall  be 
4. 
subject to the prior consultation provided for in Article 60, if the proposed acquirer is 
one of the following: 

a  credit 

institution,  an  assurance  undertaking, 

insurance  undertaking, 
(a) 
reinsurance  undertaking,  investment  firm  or  a  management  company  within  the 
meaning  of  Article  1a(2)  of  Council  Directive  85/611/EEC*,  hereinafter  “UCITS 
management company”, authorised in another Member State; 

(b) 
the parent undertaking of a credit institution, assurance undertaking, insurance 
undertaking,  reinsurance  undertaking,  investment  firm  or  a  UCITS  management 
company authorised in another Member State; 

EN 

16 

   EN 

 
(c )  a natural or legal person controlling a credit institution, assurance undertaking, 
insurance  undertaking,  reinsurance  undertaking,  investment  firm  or  a  UCITS 
management company authorised in another Member State.  

_________ 

* OJ L 375, 31.12.1985, p.3.” 

3. 

The following Articles 10a, 10b and 10c are inserted: 

“Article 10a 

1.  For  the  purposes  of  the  first  subparagraph  of  Article  10(3)  the  competent 
authorities shall, promptly and in any case within two working days upon receipt of 
the  notification  required  under  that  subparagraph  acknowledge  receipt  thereof  in 
writing to the proposed acquirer.  

The  competent  authorities  shall  have  a  maximum  of  thirty  working  days  from  the 
date of the written acknowledgement of receipt, hereinafter "assessment period", to 
oppose the proposal of the proposed acquirer. 

2.  The  competent  authorities  may  if  necessary,  request  further  information  within 
five working days of the date of the acknowledgment of receipt referred to in the first 
subparagraph  of  paragraph  1,  in  order  to  carry  out  the  assessment  referred  to  in 
Article 10b(1). 

This  request  for  further  information  shall  be  made  in  writing  and  shall  specify  the 
additional pieces of information needed to. 

The information requested shall be provided to the competent authorities within ten 
working  days.  For  the  period  between  the  date  of  request  for  information  by  the 
competent authorities and the receipt of a response thereto by the proposed acquirer, 
the  assessment  period  shall  be  interrupted.  The  interruption  shall  not  exceed  ten 
working days. Any further requests for information by the competent authorities may 
not result in an interruption of the assessment period.  

3. 
If  the  competent  authorities,  upon  completion  of  their  assessment,  decide  to 
oppose  the  proposed  acquisition  or  the  proposed  increase  of  holding,  they  shall, 
within two working days, and not going beyond the period mentioned in Art. 10 a (1) 
second  subparagraph,  inform  the  proposed  acquirer  in  writing  and  provide  the 
reasons for the decision. 

If  the  competent  authorities  do  not  oppose  within  the  assessment  period  in 
4. 
writing the proposed acquisition or increase of holding referred to in Article 10(3), 
the proposed acquisition or increase of holding shall be deemed to be approved. The 
competent authorities shall inform the proposed acquirer about the date of the expiry 
of the assessment period at the time of acknowledgement referred to in paragraph 1 
and,  if  applicable,  at  the  time  of  the  request  for  further  information  referred  to  in 
paragraph 2. 

EN 

17 

   EN 

 
5. 
The competent authorities may extend the assessment period to a maximum of 
fifty working days if the proposed acquirer is regulated outside the Community, and 
is situated in a third country where there are legal impediments to the transfer of the 
necessary information. 

The competent authorities may fix a maximum period for the completion of the 

6. 
proposed acquisition or the increase of holding. 

Article 10b 

1. 
In assessing the notification provided for in Article 10(3) and the information 
referred  to  in  Article  10a(2),  the  competent  authorities  shall,  having  regard  to  the 
likely influence of the proposed acquirer on the investment firm, assess the suitability 
of  the  proposed  acquirer  and  the  financial  soundness  of  the  proposed  acquisition 
against all of the following criteria: 

(a) 

the reputation of the proposed acquirer; 

the reputation and experience of any person who will direct the business of the 

(b) 
investment firm as a result of the proposed acquisition; 

(c) 
the financial soundness of the proposed acquirer, in particular in relation to the 
type  of  business  pursued  and  envisaged  in  the  investment  firm  in  which  the 
acquisition is sought;  

(d)  whether  the  investment  firm  will  be  able  to  meet  and  continue  to  meet  its 
obligations under this Directive and any applicable sectoral rules within the meaning 
of Article 2(7) of Directive 2002/87/EC following the proposed acquisition;  

(e)  whether  there  are  reasonable  grounds  to  suspect  that,  in  connection  with  the 
proposed acquisition, money laundering or terrorist financing within the meaning of 
Directive 2005/60/EC of the European Parliament and of the Council* is being or has 
been committed or attempted, or that the proposed acquisition could increase the risk 
of such conduct. 

In order to take account of future developments and to ensure the uniform application 
of this Directive, the Commission acting in accordance with the procedure referred to 
in  Article  64(2),  may  adopt  implementing  measures  which  specify  and  clarify  the 
criteria established in the first subparagraph of this paragraph.  

2. 
The  competent  authorities  may  oppose  the  proposed  acquisition  only  if  they 
find that the criteria set out in paragraph 1 are not met or if the information provided 
by the proposed acquirer is incomplete..  

3.  Member States shall neither impose any prior conditions in respect of the level 
of  shareholding  that  must  be  acquired  nor  examine  the  acquisition  in  terms  of 
economic needs of the market. 

4.  Member States shall make publicly available a list specifying the information 
necessary to make the assessment under paragraph 1. 

EN 

18 

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The level of information required shall be proportionate and adapted to the nature of 
the proposed acquisition or increase of holding. 

Member  States  shall  not  require  information  that  is  not  relevant  for  a  prudential 
assessment. 

5.  Where two or more proposals to acquire or increase qualifying shareholdings 
in the same investment firm have been notified to the competent authority, the latter 
shall  ensure  that  the  all  proposed  acquirers  are  treated  in  a  non-discriminatory 
manner.  

_________ 

* 

OJ L 309, 25.11.2005, p. 15.” 

Article 10c 

1. 

2. 

3. 

The Commission may request the competent authorities to provide it promptly with 
copies  of  the  documents  on  which  they  have  based  their  prudential  assessment  in 
relation to Articles 10(3), 10(4) and 10b as well as the reasons given to the proposed 
acquirer.  

The  information  provided  to  the  Commission  shall  be  covered  by  the  obligation  of 
professional  secrecy  and  shall  be  used  by  it  only  for  the  purposes  of  determining 
whether a Member State has fulfilled its obligations under this Directive.  

All persons working for or who have worked for the Commission, as well as auditors 
or  experts  acting  on  behalf  of  the  Commission  shall  be  bound  by  the  obligation  of 
professional secrecy. 

No  confidential  information  which  the  Commission  may  receive  by  virtue  of 
paragraph  1  may  be  divulged  to  any  person  or  authority  whatsoever,  except  in 
summary  or  collective  form,  such  that  individual  proposed  acquirers  or  the 
investment firms concerned cannot be identified.”' 

Article 4 

Amendments to Directive 2005/68/EC 

Directive 2005/68/EC is amended as follows: 

1. 

In Article 2(2) the third subparagraph is replaced by the following: 

”For the purposes of paragraph 1(j), in the context of Articles 12 and 19 and of the 
other  levels  of  holding  referred  to  in  Article  19,  the  voting  rights  referred  to  in 
Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of the 
Council* shall be taken into consideration;  

_________ 

EN 

19 

   EN 

 
* OJ L 390, 31.12.2004, p. 38.” 

2. 

Article 19 is replaced by the following: 

"Article 19 

1.  Member States shall require any natural or legal person or such persons acting 
in  concert  who  have  taken  a  decision  to  either  acquire,  directly  or  indirectly  a 
qualifying holding in an reinsurance undertaking or to, directly or indirectly further 
increase  such  qualifying  holding  as  a  result  of  which  the  proportion  of  the  voting 
rights or of the capital held would reach or exceed 20%, 30% or 50% or so that the 
reinsurance  undertaking  would  become  its  subsidiary,  hereinafter  “proposed 
acquirer”,  to  notify  in  writing  to  the  competent  authorities  of  the  reinsurance 
undertaking  in  which  it  is  either  seeking  to  acquire  a  qualifying  holding  or  to 
increase  such  a  qualifying  holding  the  size  of  the  intended  holding  and  relevant 
information as referred to in Article 19a(4) . 

2. 
The competent authorities shall, promptly and in any case within two working 
days upon receipt of the notification required under paragraph 1 acknowledge receipt 
thereof in writing to the proposed acquirer. 

The  competent  authorities  shall  have  a  maximum  of  thirty  working  days  from  the 
date  of  the  written  acknowledgement  of  receipt,  hereinafter  "assessment  period"  to 
oppose the proposal of the proposed acquirer. 

3. 
The competent authorities may if necessary, request further information within 
five working days of the date of the acknowledgment of receipt referred to in the first 
subparagraph  of  paragraph  2,  in  order  to  carry  out  the  assessment  referred  to  in 
Article 19a(1).  

This  request  for  further  information  shall  be  made  in  writing  and  shall  specify  the 
additional pieces of information needed. 

The information requested shall be provided to the competent authorities within ten 
working  days.  For  the  period  between  the  date  of  request  for  information  by  the 
competent authorities and the receipt of a response thereto by the proposed acquirer, 
the  assessment  period  shall  be  interrupted.  The  interruption  shall  not  exceed  ten 
working  days.  Any  further  requests  for  information  by  the  competent  authorities 
shall not result in an interruption of the assessment period. 

4. 
If  the  competent  authorities,  upon  completion  of  their  assessment,  decide  to 
oppose  the  proposed  acquisition  or  the  proposed  increase  of  holding,  they  shall, 
within two working days, and not going beyond the period mentioned in Art. 19 (2) 
second  subparagraph,  inform  the  proposed  acquirer  in  writing  and  provide  the 
reasons for the decision. 

5. 
If  the  competent  authorities  do  not  oppose  within  the  assessment  period  in 
writing the proposed acquisition or increase of holding referred to in paragraph 1, the 
proposed  acquisition  or  increase  of  holding  shall  be  deemed  to  be  approved.  The 
competent authorities shall inform the proposed acquirer about the date of the expiry 
of the assessment period at the time of acknowledgement referred to in paragraph 2 

EN 

20 

   EN 

 
and,  if  applicable,  at  the  time  of  the  request  for  further  information  referred  to  in 
paragraph 3. 

6. 
The competent authorities may extend the assessment period to a maximum of 
fifty working days if the proposed acquirer is regulated outside the Community and 
is situated in a third-country where there are legal impediments to the transfer of the 
necessary information. ” 

The competent authorities may fix a maximum period for the completion of the 

7. 
proposed acquisition or the increase of holding.” 

3. 

The following Article 19a is inserted: 

"Article 19a" 

In assessing the notification provided for in Article 19(1) and the information 
1. 
referred  to  in  Article  19(3),  the  competent  authorities  shall,  having  regard  to  the 
likely influence of the proposed acquirer on the reinsurance undertaking; assess the 
suitability  of  the  proposed  acquirer  and  the  financial  soundness  of  the  proposed 
acquisition against all of the following criteria: 

(a) 

the reputation of the proposed acquirer ; 

the reputation and experience of any person who will direct the business of the 

(b) 
reinsurance undertaking as a result of the proposed acquisition; 

the financial soundness of the proposed acquirer, in particular in relation to the 
(c) 
type of business pursued and envisaged in the reinsurance undertaking in which the 
acquisition is sought;  

(d)  whether the reinsurance undertaking will be able to meet and continue to meet 
its  obligations  under  this  Directive  and  any  applicable  sectoral  rules  within  the 
meaning of Article 2(7) of Directive 2002/87/EC following the proposed acquisition; 

(e)  whether  there  are  reasonable  grounds  to  suspect  that,  in  connection  with  the 
proposed acquisition, money laundering or terrorist financing within the meaning of 
directive 2005/60/EC of the European Parliament and of the Council* is being or has 
been committed or attempted, or that the proposed acquisition could increase the risk 
of such conduct. 

2. 
The  competent  authorities  may  oppose  the  proposed  acquisition  only  if  they 
find that the criteria set out in paragraph 1 are not met or if the information provided 
by the proposed acquirer is incomplete. 

3.  Member States shall neither impose any prior conditions in respect of the level 
of  shareholding  that  must  be  acquired  nor  examine  the  acquisition  in  terms  of 
economic needs of the market. . 

4.  Member States shall make publicly available a list specifying the information 
necessary to make the assessment under paragraph 1. 

EN 

21 

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The level of information required shall be proportionate and adapted to the nature of 
the proposed acquisition or increase of holding. 

Member  States  shall  not  require  information  that  is  not  relevant  for  a  prudential 
assessment. 

5.  Where two or more proposals to acquire or increase qualifying shareholdings 
in  the  same  reinsurance  undertaking  have  been  notified  to  the  competent  authority, 
the  latter  shall  ensure  that  all  the  proposed  acquirers  are  treated  in  a  non-
discriminatory manner.  

_________ 

* 

OJ L 309 25.11.2005, p. 15.”  

4. 

Article 20 is replaced by the following: 

”Article 20 

In  addition  to  Articles  19  and  19a  and  unless  specified  otherwise,  the  relevant 
competent  authorities  shall  consult  each  other  when  assessing  the  acquisition  in 
accordance with Article 19a(1), if the proposed acquirer is one of the following: 

a credit institution, assurance undertaking, insurance undertaking, reinsurance 
(1) 
undertaking, investment firm or management company within the meaning of article 
1a(2)  of  Council  Directive  85/611/EEC*,  hereinafter  “UCITS  management 
company” authorised in another Member State; 

(2) or the parent undertaking of a credit institution, assurance undertaking, insurance 
undertaking,  reinsurance  undertaking,  investment  firm  or  UCITS  management 
company authorised in another Member State; 

(3) or a natural or legal person controlling a credit institution, assurance undertaking, 
insurance  undertaking,  reinsurance  undertaking, 
investment  firm  or  UCITS 
management company authorised in another Member State. 

. The competent authorities shall cooperate closely. They shall provide one another 
with  any  information  which  is  essential  or  relevant  for  the  exercise.  In  this  regard, 
the  competent  authorities  shall  communicate  to  each  other  on  request  all  relevant 
information and shall communicate on their own initiative all essential information.  

_________ 

* OJ L 375, 31.12.1985, p.3.” 

EN 

22 

   EN 

 
5. 

The following Article 20a is inserted 

“Article 20a 

The Commission may request the competent authorities to provide it promptly 
1. 
with copies of the documents on which they have based their assessment in relation 
to Articles 19, 19a and 20 as well as the reasons given to the proposed acquirer. 

2. 
The  information  provided  to  the  Commission  shall  be  covered  by  the 
obligation  of  professional  secrecy  and  shall  be  used  by  it  only  for  the  purposes  of 
determining  whether  a  Member  State  has  fulfilled  its  obligations  under  this 
Directive.  

All persons working for or who have worked for the Commission, as well as auditors 
or  experts  acting  on  behalf  of  the  Commission  shall  be  bound  by  the  obligation  of 
professional secrecy. 

3. 
No  confidential  information  which  the  Commission  may  receive  by  virtue  of 
paragraph  1  may  be  divulged  to  any  person  or  authority  whatsoever,  except  in 
summary  or  collective  form,  such  that  individual  proposed  acquirers  or  the 
reinsurance undertakings concerned cannot be identified.” 

6. 

7. 

In Article 21 the figure '33%' is replaced by the figure '30%'.  

In Article 56 the following point (f) is added:  

“(f)  specifications and clarifications of the criteria set out in Article 19a(1), in order 
to take account of future developments and to ensure the uniform application of this 
Directive.” 

Article 5 

Amendment to Directive 2006/48/EC  

Directive 2006/48/EC is amended as follows:  

1. 

In Article 12(1) the second subparagraph is replaced by the following: 

In  determining  whether  the  criteria  for  a qualifying  holding  in  the  context  of  this 
Article  are  fulfilled  ,  the  voting  rights  referred  to  in  Articles  9  and  10  of  Directive 
2004/109/EC of  the  European  Parliament  and  of  the  Council*shall  be  taken  into 
consideration 

_________ 

* 

OJ L 390, 31.12.2004, p. 38.” 

Article 19 is amended as follows: 

Paragraphs 1 and 2 are replaced by the following 

23 

   EN 

2. 

(a) 

EN 

 
"1.  Member States shall require any natural or legal person or such persons acting 
in  concert  who  have  taken  a  decision  to  either  acquire,  directly  or  indirectly,  a 
qualifying holding in a credit institution or to, directly or indirectly, further increase 
such a qualifying holding as a result of which the proportion of the voting rights or of 
the  capital  held  would  reach  or  exceed  20%,  30%  or  50%  or  so  that  the  credit 
institution would become its subsidiary, hereinafter “proposed acquirer”, to notify in 
writing to the competent authorities of the credit institution in which they are seeking 
to acquire a qualifying holding or to increase such a qualifying holding the size of the 
intended holding and relevant information as referred to in Article 19a(1).  

2. 
The competent authorities shall, promptly and in any case within two working 
days  upon  receipt  of  the  notification  required  under  paragraph  1,  acknowledge 
receipt thereof in writing to the proposed acquirer.  

The  competent  authorities  shall  have  a  maximum  of  thirty  working  days  from  the 
date of the written acknowledgement of receipt, hereinafter "assessment period", to 
oppose the proposal of the proposed acquirer.  

(b) 

The following paragraphs 3 to 7 are added: 

3.  The  competent  authorities  may,  if  necessary,  request  further  information  within 
five  working  days  of  the  date  of  the  acknowledgement  of  receipt  referred  to  in  the 
first subparagraph of paragraph 2, in order to carry out the assessment referred to in 
Article 19a(1).  

This  request  for  further  information  shall  be  made  in  writing  and  shall  specify  the 
additional pieces of information needed.  

The information requested shall be provided to the competent authorities within ten 
working  days.  For  the  period  between  the  date  of  request  for  information  by  the 
competent authorities and the receipt of a response thereto by the proposed acquirer, 
the  assessment  period  shall  be  interrupted.  The  interruption  shall  not  exceed  ten 
working days. Any further requests for information by the competent authorities may 
not result in an interruption of the assessment period . 

4. 
If  the  competent  authorities,  upon  completion  of  their  assessment,  decide  to 
oppose  the  proposed  acquisition  or  the  proposed  increase  of  holding,  they  shall, 
within two working days, and not going beyond the period mentioned in Art. 19 (2) 
second  subparagraph,  inform  the  proposed  acquirer  in  writing  and  provide  the 
reasons for the decision.  

5. 
If  the  competent  authorities  do  not  oppose  within  the  assessment  period  in 
writing the proposed acquisition or increase of holding referred to in Article 19(1), 
the proposed acquisition or increase of holding shall be deemed to be approved. The 
competent authorities shall inform the proposed acquirer about the date of the expiry 
of the assessment period at the time of acknowledgement referred to in paragraph 2 
and,  if  applicable,  at  the  time  of  the  request  for  further  information  referred  to  in 
paragraph 3. 

The competent authorities may, in the following cases, extend the assessment 

6. 
period to fifty working days: 

EN 

24 

   EN 

 
(a) 
if the proposed acquirer is regulated outside the Community and there are, in 
the  third  country  concerned,  legal  impediments  to  the  transfer  of  the  necessary 
information; 

(b) in the case of an assessment under Article 143. 

The competent authorities may fix a maximum period for the completion of the 

7. 
proposed acquisition or the increase of holding. 

" 

3. 

The following Articles 19a 19b and 19c are inserted: 

“Article 19a 

1. 
In assessing the notification provided for in Article 19(1) and the information 
referred  to  in  Article  19(3),  the  competent  authorities  shall,  having  regard  to  the 
likely  influence  of  the  proposed  acquirer  on  the  credit  institution,  assess  the 
suitability  of  the  proposed  acquirer  and  the  financial  soundness  of  the  proposed 
acquisition against all of the following criteria: 

(a) 

the reputation of the proposed acquirer;  

the reputation and experience of any person who will direct the business of the 

(b) 
credit institution as a result of the proposed acquisition; 

the financial soundness of the proposed acquirer, in particular in relation to the 
(c) 
type  of  business  pursued  and  envisaged  in  the  credit  institution  in  which  the 
acquisition is sought;  

(d)  whether  the  credit  institution  will  be  able  to  meet  and  continue  to  meet  its 
obligations under this Directive and any applicable sectoral rules within the meaning 
of  Article  2(7)  of  Directive  2002/87/EC  following  the  proposed  acquisition 
including, in particular, the requirements of Article 12(3) and 22 of this Directive; 

(e)  whether  there  are  reasonable  grounds  to  suspect  that,  in  connection  with  the 
proposed acquisition, money laundering or terrorist financing within the meaning of 
Directive 2005/60/EC of the European Parliament and of the Council* is being or has 
been committed or attempted, or that the proposed acquisition could increase the risk 
of such conduct.  

2. 
The  competent  authorities  may  oppose  the  proposed  acquisition  only  if  they 
find that the criteria set out in paragraph 1 are not met or if the information provided 
by the proposed acquirer is incomplete.  

3.  Member States shall neither impose any prior conditions in respect of the level 
of  shareholding  that  must  be  acquired  nor  examine  the  acquisition  in  terms  of  the 
economic needs of the market. 

4.  Member States shall make publicly available a list specifying the information 
necessary to make the assessment under paragraph 1.  

The  information  required  shall  be  proportionate  and  adapted  to  the  nature  of  the 
proposed acquisition or increase of holding.  

Member  States  shall  not  require  information  that  is  not  relevant  for  a  prudential 
assessment. 

EN 

25 

   EN 

 
5.  Where two or more proposals to acquire or increase qualifying shareholdings 
in the same credit institution have been notified to the competent authority, the latter 
shall treat the proposed acquirers in a non-discriminatory manner. 

Article 19b 

In addition to Articles 19 and 19a and unless specified otherwise, the assessment of 
the acquisition in accordance with Article 19a(1) shall be subject to Article 129(3) if 
the proposed acquirer is one of the following: 

(1) a credit institution, an assurance undertaking, insurance undertaking, reinsurance 
undertaking, investment firm or management company within the meaning of Article 
1a(2)  of  Council  Directive  85/611/EEC**,  hereinafter  “UCITS  management 
company”, authorised in another Member State; 

(2)  the  parent  undertaking  of  a  credit  institution,  assurance  undertaking,  insurance 
undertaking,  reinsurance  undertaking,  investment  firm  or  UCITS  management 
company authorised in another Member State; 

(3)  a  natural  or  legal  person  controlling  a  credit  institution,  assurance  undertaking, 
insurance  undertaking,  reinsurance  undertaking, 
investment  firm  or  UCITS 
management company authorised in another Member State. 

Article 19c 

The Commission may request the competent authorities to provide it promptly 
1. 
with copies of the documents on which they have based their assessment in relation 
to Articles 19, 19a and 19b as well as the reasons given to the proposed acquirer. 

The  information  provided  to  the  Commission  shall  be  covered  by  the 
2. 
obligation  of  professional  secrecy  and  shall  be  used  only  for  the  purposes  of 
determining  whether  a  Member  State  has  fulfilled  its  obligations  under  this 
Directive.  

All persons working for or who have worked for the Commission, as well as auditors 
or  experts  acting  on  behalf  of  the  Commission  shall  be  bound  by  the  obligation  of 
professional secrecy. 

3.  Confidential  information  which  the  Commission  may  receive  by  virtue  of 
paragraph  1  shall  not  be  divulged  to  any  person  or  authority  whatsoever,  except  in 
summary  or  collective  form,  such  that  individual  proposed  acquirers  or  the  credit 
institutions concerned cannot be identified. " 

_________ 

* 

OJ L 309, 25.11.2005, p.15.  

**  OJ L 375, 31.12.1985, p.3.'' 

4. 

In Article 20 the figure "33%" is replaced by the figure "30%". 

EN 

26 

   EN 

 
5. 

In Article 129, the following paragraph 3 is added:  

“3. 
In the case of an assessment in accordance with Article 19a(1), the competent 
authority,  which  has  authorised  the  credit  institution  in  which  the  proposed 
acquisition is sought shall consult the competent authority of the proposed acquirer.. 

A decision by the competent authority which has authorised the credit institution in 
which the proposed acquisition is sought shall indicate any views or reservations on 
the part expressed by of the competent authority of the acquirer.” 

6. 

In Article 150(2), the following point (f) is added : 

specification and clarification of the criteria set out in Article 19a(1), in order 
"(f) 
to take account of future developments and to ensure the uniform application of this 
Directive." 

Article 6 

Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by […]11 at the latest. They shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

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

Article 7 

Entry into force 

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

11 

Six months after the entry into force of this Directive. 

EN 

27 

   EN 

 
 
 
                                                 
Article 8 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

EN 

28 

   EN