Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 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 holdings in the financial sector (Text with EEA relevance )
Date: 2007-09-05
Institutions: Council of the European Union, European Parliament
Subjects: credit institution, financial instrument, freedom to provide services, insurance, securities

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I

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

DIRECTIVES

DIRECTIVE 2007/44/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 5 September 2007

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 holdings in the financial sector

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 47(2) and Article 55 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of the European Central Bank (2),

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

Whereas:

laws,

(1) Council Directive 92/49/EEC of 18 June 1992 on the
coordination of
regulations and administrative
than life
provisions relating to direct
assurance (third non-life insurance Directive) (4), Directive
2002/83/EC of the European Parliament and of the Council
of 5 November 2002 concerning life assurance (5),
Directive 2004/39/EC of the European Parliament and of

insurance other

(1) OJ C 93, 27.4.2007, p. 22.
(2) OJ C 27, 7.2.2007, p. 1.
(3) Opinion of the European Parliament of 13 March 2007 (not yet
published in the Official Journal) and Council Decision of 28 June
2007.

(4) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive
2005/68/EC of the European Parliament and of the Council (OJ
L 323, 9.12.2005, p. 1).

the Council of 21 April 2004 on markets in financial
instruments (6), Directive 2005/68/EC of
the European
Parliament and of the Council of 16 November 2005 on
reinsurance
and Directive 2006/48/EC of the European
Parliament and of the Council of 14 June 2006 relating to
the taking up and pursuit of
the business of credit
institutions (recast) (7) regulate situations in which a natural
or legal person has taken a decision to acquire or increase a
institution, assurance,
qualifying holding in a credit
insurance or re-insurance undertaking or an investment
firm.

(2)

(3)

The legal framework has so far provided neither detailed
criteria for a prudential assessment of
the proposed
acquisition nor a procedure for
their application. A
clarification of the criteria and the process of prudential
assessment
is needed to provide the necessary 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 the prudential
assessment within a framework of a clear and transparent
procedure and a limited set of clear assessment criteria of
strictly prudential nature. It is therefore necessary to specify
criteria for the supervisory assessment of shareholders and
management in relation to a proposed acquisition and a
their application. This Directive
clear procedure for
prevents any circumvention of the initial conditions for
authorisation by acquiring a qualifying holding in the target
entity in which the acquisition is proposed. This Directive
should not prevent the competent authorities from taking
into account commitments made by the proposed acquirer

(6) 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).

(5) OJ L 345, 19.12.2002, p. 1. Directive as last amended by Council

(7) OJ L 177, 30.6.2006, p. 1. Directive as amended by Commission

Directive 2006/101/EC (OJ L 363, 20.12.2006, p. 238).

Directive 2007/18/EC (OJ L 87, 28.3.2007, p. 9).

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(4)

(5)

(6)

(7)

to meet prudential requirements under the assessment
criteria laid down in this Directive, provided that the rights
of
the proposed acquirer under this Directive are not
affected.

The prudential assessment of a proposed acquisition should
not in any way suspend or supersede the requirements of
on-going prudential supervision and other relevant provi-
sions to which the target entity has been subject since its
own initial authorisation.

This Directive should not prevent market participants from
operating effectively in the securities market. The informa-
tion required for assessing a proposed acquisition, as well as
the assessment of the compliance with the different criteria
should, therefore, be proportionate, among other things, to
the involvement of the proposed acquirer in the manage-
ment of the entity in which the acquisition is proposed. The
competent authorities should,
in accordance with good
administrative practice, complete their assessment without
delay and inform the proposed acquirer also of a positive
assessment,
in any event if requested to do so by the
proposed acquirer.

the Community of

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. Maximum harmonisation
the procedure and the
throughout
prudential assessments, without the Member States laying
down stricter rules, is therefore critical. The thresholds for
notifying a proposed acquisition or a disposal of a
qualifying holding, the assessment procedure, the list of
assessment criteria and other provisions of this Directive to
be applied to the prudential assessment of proposed
to maximum
acquisitions should therefore be subject
harmonisation. This Directive should not prevent
the
Member States from requiring that the competent author-
ities are to be informed of acquisitions of holdings below
the thresholds laid down in this Directive, so long as a
Member State imposes no more than one additional
threshold below 10 % for this purpose. Nor should it
prevent the competent authorities from providing general
guidance as to when such holdings would be deemed to
result in significant influence.

In order to ensure the clarity and predictability of the
assessment procedure there should be a limited maximum
period of time for completing the prudential assessment.
During the assessment procedure, the competent author-
ities should be able to interrupt that period only once and
only for the purpose of requesting additional information
after which the authorities should in any event complete
the assessment within the maximum assessment period.
This should not prevent the competent authorities from
asking for further clarification even after the time period set
for completing the requested information or allowing the
proposed acquirer to submit additional information at any
time during the maximum assessment period, provided that
this time period is not exceeded. Neither should this
the competent authorities from opposing the
prevent

and the

proposed acquisition, where appropriate, at any time
during the maximum assessment period. Cooperation
between the proposed acquirer
competent
authorities should thus remain intrinsic to the entire
assessment period. Regular contact between the proposed
acquirer and the competent authority of the regulated entity
in which the acquisition is proposed may also commence in
anticipation of a formal notification. Such cooperation
should imply a genuine effort to assist each other in order,
for example, to avoid unanticipated requests for informa-
information late in the
tion or
assessment period.

the submission of

(8) 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
but should be facilitated if the acquirer is authorised and
supervised within the European Union.

(9) A list established by the Member State should specify the
information that may be requested for the purpose of
assessments, strictly according to the criteria set out in this
Directive. The information should be proportionate and
adjusted to the nature of
in
particular if the proposed acquirer is an unregulated entity
or established in a third country. Provision should also be
made for the possibility to request less extensive informa-
tion in justified cases.

the proposed acquisition,

(10)

It is essential that the competent authorities work in close
cooperation with each other when assessing the suitability
of a proposed acquirer that is a regulated entity authorised
in another Member State or in another sector. While it is
considered appropriate that the responsibility for the final
decision regarding the prudential assessment remains with
the competent authority responsible for the supervision of
the entity in which the acquisition is proposed,
that
the
competent authority should take into full account
opinion of the competent authority responsible for the
supervision of the proposed acquirer, particularly as regards
the assessment criteria directly related to the proposed
acquirer.

(11) The Commission should, in accordance with the rights and
obligations set out in the Treaty, be able to monitor the
the provisions regarding the prudential
application of
assessment of acquisitions in order to fulfil
the tasks
enforcement of
assigned to it with regard to the
Community law. Having regard to Article 296 of
the
the Member States should cooperate with the
Treaty,
Commission by providing it, once the assessment proced-
ure has been completed, with information pertaining to
prudential assessments carried out by their competent
authorities where such information is requested for the sole
purpose of determining whether Member States have
infringed their obligations under this Directive.

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(12) The assessment criteria may, in the future, need adjustments
to take into account market developments and the need for
a uniform application throughout the Community. Such
technical adjustments should be adopted in accordance
with Council Decision 1999/468/EC of 28 June 1999
laying down the procedures for the exercise of implement-
ing powers conferred on the Commission (1).

(13) Since the objective of this Directive, namely the establish-
rules and assessment
ment of harmonised procedural
criteria throughout the Community, cannot be sufficiently
achieved by the Member States and can therefore, by reason
of its 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 proportion-
ality, as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve that objective.

the global

(14) The Community's intention is to keep its financial markets
open to the rest of the world and thus to help improve the
liberalisation of
financial markets in third
countries. It would be beneficial for all market participants
to achieve equivalent access to investment worldwide.
Member States should report to the Commission cases in
which Community credit institutions,
investment firms,
other financial institutions or insurance companies acquir-
investment firms, other financial
ing credit institutions,
institutions or insurance companies situated in a third
country are not granted the same treatment as domestic
acquirers and encounter major impediments. The Commis-
sion should propose measures to remedy such cases or raise
them in an appropriate forum.

(15)

In accordance with point 34 of
the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the interests
of the Community, their own tables illustrating, as far as
possible, the correlation between this Directive and the
transposition measures, and to make them public.

(16) Directives 92/49/EEC, 2002/83/EC, 2004/39/EC, 2005/68/
EC and 2006/48/EC should therefore be amended accord-
ingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 92/49/EEC

Directive 92/49/EEC is hereby amended as follows:

1.

in Article 1, point (g),
replaced by the following:

the second paragraph shall be

this definition,

‘For the purposes of
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 (*), as well as the
laid down in
conditions regarding aggregation thereof

(1) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/

512/EC (OJ L 200, 22.7.2006, p. 11).

(2) OJ C 321, 31.12.2003, p. 1.

Article 12(4) and (5) of that Directive, shall be taken into
account.

Member States shall not take into account voting rights or
shares which investment firms or credit institutions may
hold as a result of providing the underwriting of financial
instruments and/or placing of financial instruments on a
firm commitment basis included under point 6 of Section
A of Annex I to Directive 2004/39/EC (**), provided that
those rights are, on the one hand, not exercised or
otherwise used to intervene in the management of the
issuer and, on the other, disposed of within one year of
acquisition.

(*) Directive 2004/109/EC of the European Parliament
and of the Council of 15 December 2004 on the
harmonisation of transparency requirements in rela-
tion to information about issuers whose securities are
admitted to trading on a regulated market (OJ L 390,
31.12.2004, p. 38).

(**) Directive 2004/39/EC of the European Parliament and
the Council of 21 April 2004 on markets in
of
financial
instruments (OJ L 145, 30.4.2004, p. 1).
Directive as last amended by Directive 2007/44/EC
(OJ L 247, 21.9.2007, p. 1)’

2.

Article 15 shall be amended as follows:

(a)

Paragraph 1 shall be replaced by the following:

‘1. Member States shall require any natural or legal
person or such persons acting in concert (hereinafter
referred to as the proposed acquirer), who have taken
a decision either to acquire, directly or indirectly, a
qualifying holding in an insurance undertaking or to
further increase, directly or indirectly, such a qualify-
ing holding in an insurance undertaking 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 referred to as the
proposed acquisition), first to notify in writing the
competent authorities of the insurance undertaking in
which they are seeking to acquire or increase a
qualifying holding, indicating the size of the intended
holding and relevant information, as referred to in
Article 15b(4). Member States need not apply the
30 % threshold where, in accordance with Article 9(3)
(a) of Directive 2004/109/EC, they apply a threshold
of one-third.’;

(b)

Paragraph 1a shall be deleted;

(c)

Paragraph 2 shall be replaced by the following:

‘2. Member States shall require any natural or legal
person who has taken a decision to dispose, directly or
indirectly, of a qualifying holding in an insurance
undertaking first to notify in writing the competent

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authorities of the home Member State, indicating the
size of his intended holding. Such a person shall
likewise notify the competent authorities if he has
taken a decision to reduce his qualifying holding so
that the proportion of the voting rights or of the
capital held would fall below 20 %, 30 % or 50 % or
so that the insurance undertaking would cease to be
his subsidiary. Member States need not apply the 30 %
threshold where, in accordance with Article 9(3)(a) of
Directive 2004/109/EC, they apply a threshold of one-
third.’;

3.

the following Articles shall be inserted:

‘Article 15a

1. The competent authorities shall, promptly and in any
event within two working days following receipt of the
notification required under Article 15(1), as well as
following the possible subsequent receipt of the informa-
tion referred to in paragraph 2 of this Article, acknowledge
receipt thereof in writing to the proposed acquirer.

The competent authorities shall have a maximum of 60
working days as from the date of the written acknowl-
edgement of receipt of the notification and all documents
required by the Member State to be attached to the
notification on the basis of the list referred to in Article 15b
(4) (hereinafter referred to as the assessment period), to
carry out the assessment provided for in Article 15b(1)
(hereinafter referred to as the assessment).

inform the proposed
The competent authorities shall
acquirer of the date of the expiry of the assessment period
at the time of acknowledging receipt.

2. The competent authorities may, during the assessment
period, if necessary, and no later than on the 50th working
day of
any further
information that is necessary to complete the assessment.
Such request shall be made in writing and shall specify the
additional information needed.

assessment period,

request

the

(b)

a natural or legal person not subject to supervision
under this Directive or Directives 85/611/EEC (*),
2002/83/EC (**), 2004/39/EC, 2005/68/EC (***) or
2006/48/EC (4)*.

4.
If the competent authorities, upon completion of the
assessment, decide to oppose the proposed acquisition, they
shall, within two working days, and not exceeding the
assessment period, inform the proposed acquirer in writing
to
and provide the reasons for that decision. Subject
national law, an appropriate statement of the reasons for
the decision may be made accessible to the public at the
request of the proposed acquirer. This shall not prevent a
Member State from allowing the competent authority to
make such disclosure in the absence of a request by the
proposed acquirer.

If

the competent authorities do not oppose the
5.
proposed acquisition within the assessment period in
writing, it shall be deemed to be approved.

6. The competent authorities may fix a maximum period
for concluding the proposed acquisition and extend it
where appropriate.

7. Member States may not impose requirements for the
notification to and approval by the competent authorities
of direct or indirect acquisitions of voting rights or capital
that are more stringent than those set out in this Directive.

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, in order to ensure the sound
and prudent management of the insurance undertaking in
which an acquisition is proposed, and having regard to the
likely influence of the proposed acquirer on the insurance
the proposed
undertaking, appraise the suitability of
acquirer and the financial soundness of
the proposed
acquisition against all of the following criteria:

(a)

the reputation of the proposed acquirer;

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 20
working days. Any further requests by the competent
authorities for completion or clarification of the informa-
tion shall be at their discretion but may not result in an
interruption of the assessment period.

(b)

(c)

3. The competent authorities may extend the interruption
referred to in the second subparagraph of paragraph 2 up
to 30 working days if the proposed acquirer is:

(a)

situated or regulated outside the Community; or

the reputation and experience of any person who will
direct the business of the insurance undertaking as a
result of the proposed acquisition;

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 proposed;

(d) whether the insurance undertaking will be able to
comply and continue to comply with the prudential
requirements based on this Directive and, where
applicable, other Directives, notably, Directives 73/

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239/EEC, 98/78/EC (5)*, 2002/13/EC (6)* and 2002/
87/EC (7)*, in particular, whether the group of which
it will become a part has a structure that makes it
possible to exercise effective supervision, effectively
exchange information among the competent author-
ities and determine the allocation of responsibilities
among the competent authorities;

(e) whether there are reasonable grounds to suspect that,
in connection with the proposed acquisition, money
laundering or terrorist financing within the meaning
of Article 1 of Directive 2005/60/EC (8)* is being or
has been committed or attempted, or
the
proposed acquisition could increase the risk thereof.

that

2. The competent authorities may oppose the proposed
acquisition only if there are reasonable grounds for doing
so on the basis of the criteria set out in paragraph 1 or if
the information provided by the proposed acquirer is
incomplete.

(c)

legal person controlling a credit
a natural or
institution, assurance undertaking,
insurance under-
taking, reinsurance undertaking, investment firm or
UCITS management company authorised in another
Member State or in a sector other than that in which
the acquisition is proposed.

2. The competent authorities shall, without undue delay,
provide each other with any information which is essential
or relevant for the assessment. In this regard, the competent
authorities shall communicate to each other upon request
all relevant information and shall communicate on their
own initiative all essential information. A decision by the
competent authority that has authorised the insurance
undertaking in which the acquisition is proposed shall
indicate any views or
reservations expressed by the
competent authority responsible for the proposed acquirer.

3. Member States shall neither impose any prior condi-
the level of holding that must be
tions in respect of
acquired nor allow their competent authorities to examine
the proposed acquisition in terms of the economic needs of
the market.

(*)

4. Member States shall make publicly available a list
specifying the information that is necessary to carry out the
assessment and that must be provided to the competent
authorities at
the time of notification referred to in
Article 15(1). The information required shall be propor-
tionate and adapted to the nature of the proposed acquirer
and the proposed acquisition. Member States shall not
require information that is not relevant for a prudential
assessment.

5. Notwithstanding Article 15a(1), (2) and (3), where two
or more proposals
increase qualifying
to acquire or
holdings in the same insurance undertaking have been
notified to the competent authority, the latter shall treat the
proposed acquirers in a non-discriminatory manner.

Article 15c

1. The relevant competent authorities shall work in full
consultation with each other when carrying out
the
assessment if the proposed acquirer is one of the following:

(a)

(b)

a credit institution, assurance undertaking, insurance
undertaking,
investment
reinsurance undertaking,
firm or management company within the meaning
of Article 1a, point 2 of Directive 85/611/EEC
(hereinafter referred to as the “UCITS management
company”) authorised in another Member State or in a
sector other than that in which the acquisition is
proposed;

institution,
credit
the parent undertaking of a
insurance undertaking, rein-
assurance undertaking,
surance undertaking,
firm or UCITS
investment
management company authorised in another Member
State or in a sector other than that in which the
acquisition is proposed; or

laws,

regulations

coordination of

Council Directive 85/611/EEC of 20 December 1985
on the
and
administrative provisions relating to undertakings
in transferable securities
for collective investment
(UCITS) (OJ L 375, 31.12.1985, p. 3). Directive as last
amended by Directive 2005/1/EC of the European
Parliament and of the Council (OJ L 79, 24.3.2005,
p. 9).

(**) Directive 2002/83/EC of the European Parliament and
of the Council of 5 November 2002 concerning life
assurance (OJ L 345, 19.12.2002, p. 1). Directive as
last amended by Directive 2007/44/EC.

(***) Directive 2005/68/EC of the European Parliament and
of the Council of 16 November 2005 on reinsurance
(OJ L 323, 9.12.2005, p. 1). Directive as amended by
Directive 2007/44/EC.

(4)* Directive 2006/48/EC of the European Parliament and
of the Council of 14 June 2006 relating to the taking
up and pursuit of the business of credit institutions
(recast) (OJ L 177, 30.6.2006, p. 1). Directive as last
amended by Directive 2007/44/EC.

(5)* Directive 98/78/EC of the European Parliament and of
the Council of 27 October 1998 on the supplemen-
tary supervision of insurance and reinsurance under-
takings in an insurance or reinsurance group (OJ
L 330, 5.12.1998, p. 1). Directive as last amended by
Directive 2005/68/EC.

(6)* Directive 2002/13/EC of the European Parliament and
of the Council of 5 March 2002 amending Council
Directive 73/239/EEC as regards the solvency margin
requirements for non-life insurance undertakings (OJ
L 77, 20.3.2002, p. 17).

credit

(7)* Directive 2002/87/EC of the European Parliament and
the Council of 16 December 2002 on the
of
supplementary supervision of
institutions,
insurance undertakings and investment firms in a
financial conglomerate (OJ L 35, 11.2.2003, p. 1).
Directive as amended by Directive 2005/1/EC.
(8)* Directive 2005/60/EC of the European Parliament and
of the Council of 26 October 2005 on the prevention
of the use of financial system for the purpose of
money laundering and terrorist financing (OJ L 309,
25.11.2005, p. 15).’;

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4.

in Article 51, the following indent shall be added:

‘— adjustments 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.’

Article 2

competent authorities of the assurance undertaking in
which they are seeking to acquire or increase a
qualifying holding, indicating the size of the intended
holding and relevant information, as referred to in
Article 15b(4). Member States need not apply the
30 % threshold where, in accordance with Article 9(3)
(a) of Directive 2004/109/EC, they apply a threshold
of one-third.’;

Amendments to Directive 2002/83/EC

(b)

Paragraph 1a shall be deleted;

Directive 2002/83/EC is hereby amended as follows:

1.

in Article 1, point (j), the second subparagraph shall be
replaced by the following:

this definition,

‘For the purposes of
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 (*), as well as the
conditions regarding aggregation thereof
laid down in
Article 12(4) and (5) of that Directive, shall be taken into
account.

Member States shall not take into account voting rights or
shares which investment firms or credit institutions may
hold as a result of providing the underwriting of financial
instruments and/or placing of financial instruments on a
firm commitment basis included under point 6 of Section
A of Annex I to Directive 2004/39/EC (**); provided that
those rights are, on the one hand, not exercised or
otherwise used to intervene in the management of the
issuer and, on the other, disposed of within one year of
acquisition.

(*) Directive 2004/109/EC of the European Parliament
and of the Council of 15 December 2004 on the
harmonisation of transparency requirements in rela-
tion to information about issuers whose securities are
admitted to trading on a regulated market (OJ L 390,
31.12.2004, p. 38).

(**) Directive 2004/39/EC of the European Parliament and
the Council of 21 April 2004 on markets in
of
financial
instruments (OJ L 145, 30.4.2004, p. 1).
Directive as last amended by Directive 2007/44/EC
(OJ L 247, 21.9.2007, p. 1).’

2.

Article 15 shall be amended as follows:

(a)

Paragraph 1 shall be replaced by the following:

‘1. Member States shall require any natural or legal
person or such persons acting in concert (hereinafter
referred to as the proposed acquirer), who have taken
a decision either to acquire, directly or indirectly, a
qualifying holding in an assurance undertaking or to
further increase, directly or indirectly, such a qualify-
ing holding in an assurance undertaking 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 referred to as the
“proposed acquisition”), first to notify in writing the

(c)

Paragraph 2 shall be replaced by the following:

‘2. Member States shall require any natural or legal
person who has taken a decision to dispose, directly or
indirectly, of a qualifying holding in an assurance
undertaking first to notify in writing the competent
authorities of the home Member State, indicating the
size of his/her intended holding. Such a person shall
likewise notify the competent authorities if he/she has
taken a decision to reduce his/her qualifying holding
so that the proportion of the voting rights or of the
capital held would fall below 20 %, 30 % or 50 % or
so that the assurance undertaking would cease to be
his/her subsidiary. Member States need not apply the
30 % threshold where,
in accordance with Art-
icle 9(3)(a) of Directive 2004/109/EC, they apply a
threshold of one-third.’;

3.

the following Articles shall be inserted:

‘Article 15a

Assessment period

1. The competent authorities shall, promptly and in any
event within two working days following receipt of the
notification required under Article 15(1), as well as
following the possible subsequent receipt of the informa-
tion referred to in paragraph 2 of this Article, acknowledge
receipt thereof in writing to the proposed acquirer.

The competent authorities shall have a maximum of 60
working days as from the date of the written acknowl-
edgement of receipt of the notification and all documents
required by the Member State to be attached to the
notification on the basis of the list referred to in Article 15b
(4) (hereinafter referred to as the assessment period), to
carry out the assessment provided for in Article 15b(1)
(hereinafter referred to as the assessment).

The competent authorities shall
inform the proposed
acquirer of the date of the expiry of the assessment period
at the time of acknowledging receipt.

2. The competent authorities may, during the assessment
period,
if necessary, and no later than on the fiftieth
working day of the assessment period, request any further
information that is necessary to complete the assessment.
Such request shall be made in writing and shall specify the
additional information needed.

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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 20
working days. Any further requests by the competent
authorities for completion or clarification of the informa-
tion shall be at their discretion but may not result in an
interruption of the assessment period.

3. The competent authorities may extend the interruption
referred to in the second subparagraph of paragraph 2 up
to 30 working days if the proposed acquirer is:

(a)

situated or regulated outside the Community; or

(b)

a natural or legal person not subject to supervision
under this Directive or Directives 85/611/EEC (*), 92/
49/EEC (**), 2004/39/EC, 2005/68/EC or 2006/48/
EC (***).

If the competent authorities, upon completion of the
4.
assessment, decide to oppose the proposed acquisition, they
shall, within two working days, and not exceeding the
assessment period, inform the proposed acquirer in writing
and provide the reasons for that decision. Subject
to
national law, an appropriate statement of the reasons for
the decision may be made accessible to the public at the
request by the proposed acquirer. This shall not prevent a
Member State from allowing the competent authority to
make such disclosure in the absence of a request of the
proposed acquirer.

If

5.
the competent authorities do not oppose the
proposed acquisition within the assessment period in
writing, it shall be deemed to be approved.

6. The competent authorities may fix a maximum period
for concluding the proposed acquisition and extend it
where appropriate.

7. Member States may not impose requirements for the
notification to and approval by the competent authorities
of direct or indirect acquisitions of voting rights or capital
that are more stringent than those set out in this Directive.

Article 15b

Assessment

In assessing the notification provided for in Article 15
1.
(1) and the information referred to in Article 15a(2), the
competent authorities shall, in order to ensure the sound
and prudent management of the assurance undertaking in
which an acquisition is proposed, and having regard to the
likely influence of the proposed acquirer on the assurance
the proposed
undertaking, appraise the suitability of
acquirer and the financial soundness of
the proposed
acquisition against all of the following criteria:

(a)

the reputation of the proposed acquirer;

(b)

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

(d) whether the assurance undertaking will be able to
comply and continue to comply with the prudential
requirements based on this Directive and, where
applicable, other Directives, notably, Directives 98/78/
EC (4)* and 2002/87/EC (5)*, in particular, whether
the group of which it will become a part has a
structure that makes it possible to exercise effective
supervision, effectively exchange information among
the competent authorities and determine the alloca-
tion of responsibilities among the competent author-
ities;

(e) whether there are reasonable grounds to suspect that,
in connection with the proposed acquisition, money
laundering or terrorist financing within the meaning
of Article 1 of Directive 2005/60/EC (6)* is being or
has been committed or attempted, or
the
proposed acquisition could increase the risk thereof.

that

2. The competent authorities may oppose the proposed
acquisition only if there are reasonable grounds for doing
so on the basis of the criteria set out in paragraph 1 or if
the information provided by the proposed acquirer is
incomplete.

3. Member States shall neither impose any prior condi-
tions in respect of
the level of holding that must be
acquired nor allow their competent authorities to examine
the proposed acquisition in terms of the economic needs of
the market.

4. Member States shall make publicly available a list
specifying the information that is necessary to carry out the
assessment and that must be provided to the competent
authorities at
the time of notification referred to in
Article 15(1). The information required shall be propor-
tionate and adapted to the nature of the proposed acquirer
and proposed acquisition. Member States shall not require
information that is not relevant for a prudential assessment.

5. Notwithstanding Article 15a(1), (2) and (3), where two
or more proposals
increase qualifying
to acquire or
holdings in the same assurance undertaking have been
notified to the competent authority, the latter shall treat the
proposed acquirers in a non-discriminatory manner.

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Article 15c

Acquisitions by regulated financial undertakings

1. The relevant competent authorities shall work in full
consultation with each other when carrying out
the
assessment if the proposed acquirer is one of the following:

(a)

(b)

(c)

a credit institution, assurance undertaking, insurance
undertaking,
investment
reinsurance undertaking,
firm or management company within the meaning
of Article 1a, point 2 of Directive 85/611/EEC
(hereinafter referred to as the UCITS management
company) authorised in another Member State or in a
sector other than that in which the acquisition is
proposed;

institution,
credit
the parent undertaking of a
insurance undertaking, rein-
assurance undertaking,
surance undertaking,
firm or UCITS
investment
management company authorised in another Member
State or in a sector other than that in which the
acquisition is proposed; or

legal person controlling a credit
a natural or
insurance under-
institution, assurance undertaking,
taking, reinsurance undertaking, investment firm or
UCITS management company authorised in another
Member State or in a sector other than that in which
the acquisition is proposed.

2. The competent authorities shall, without undue delay,
provide each other with any information which is essential
or relevant for the assessment. In this regard, the competent
authorities shall communicate to each other upon request
all relevant information and shall communicate on their
own initiative all essential information. A decision by the
competent authority that has authorised the assurance
undertaking in which the acquisition is proposed shall
reservations expressed by the
indicate any views or
competent authority responsible for the proposed acquirer.

(*)

laws,

regulations

coordination of

Council Directive 85/611/EEC of 20 December 1985
on the
and
administrative provisions relating to undertakings
for collective investment
in transferable securities
(UCITS) (OJ L 375, 31.12.1985, p. 3). Directive as last
amended by Directive 2005/1/EC of the European
Parliament and of the Council (OJ L 79, 24.3.2005,
p. 9).

(**) 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 (third non-life insurance Directive)
(OJ
L 228, 11.8.1992, p. 1). Directive as last amended
by Directive 2007/44/EC.

(***) Directive 2006/48/EC of the European Parliament and
of the Council of 14 June 2006 relating to the taking
up and pursuit of the business of credit institutions
(recast) (OJ L 177, 30.6.2006, p. 1). Directive as last
amended by Directive 2007/44/EC.

(4)* Directive 98/78/EC of the European Parliament and of
the

of 27 October 1998 on

the Council

supplementary supervision of insurance and reinsur-
ance undertakings in an insurance or reinsurance
group (OJ L 330, 5.12.1998, p. 1). Directive as last
amended by Directive 2005/68/EC.

credit

(5)* Directive 2002/87/EC of the European Parliament and
the Council of 16 December 2002 on the
of
supplementary supervision of
institutions,
insurance undertakings and investment firms in a
financial conglomerate (OJ L 35, 11.2.2003, p. 1).
Directive as amended by Directive 2005/1/EC.
(6)* Directive 2005/60/EC of the European Parliament and
of the Council of 26 October 2005 on the prevention
of the use of financial system for the purpose of
money laundering and terrorist financing (OJ L 309,
25.11.2005, p. 15).’

4.

in Article 64, the following indent shall be added:

‘— adjustments 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.’

Article 3

Amendments to Directive 2004/39/EC

Directive 2004/39/EC is hereby amended as follows:

1.

in Article 4(1), point (27) shall be 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 (*),
taking into account the conditions regarding aggrega-
tion thereof laid down in Article 12(4) and (5) of that
Directive, or which makes it possible to exercise a
significant influence over the management of
the
investment firm in which that holding subsists;

(*) Directive 2004/109/EC of the European Parliament
and of the Council of 15 December 2004 on the
harmonisation of transparency requirements in rela-
tion to information about issuers whose securities are
admitted to trading on a regulated market (OJ L 390,
31.12.2004, p. 38).’

2.

in Article 10, paragraphs 3 and 4 shall be replaced by the
following:

‘3. Member States shall require any natural or legal person
or such persons acting in concert (hereinafter referred to as
the proposed acquirer), who have taken a decision either to
acquire, directly or indirectly, a qualifying holding in an
investment firm or to further increase, directly or indirectly,
such a qualifying holding in an investment firm 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 referred to as the proposed acquisition), first to
the
notify in writing the

competent authorities of

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investment firm in which they are seeking to acquire or
increase a qualifying holding,
indicating 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
has taken a decision to dispose, directly or indirectly, of a
qualifying holding in an investment firm first to notify in
writing the competent authorities, indicating the size of the
intended holding. Such a person shall likewise notify the
competent authorities if he has taken a decision to reduce
his qualifying holding so that the proportion of the voting
rights or of the capital held would fall below 20 %, 30 % or
50 % or so that the investment firm would cease to be his
subsidiary.

Member States need not apply the 30 % threshold where, in
accordance with Article 9(3)(a) of Directive 2004/109/EC,
they apply a threshold of one-third.

In determining whether the criteria for a qualifying holding
referred to in this Article are fulfilled, Member States shall
not
take into account voting rights or shares which
investment firms or credit institutions may hold as a result
of providing the underwriting of financial instruments and/
or placing of financial instruments on a firm commitment
basis included under point 6 of Section A of Annex I,
provided that
those rights are, on the one hand, not
exercised or otherwise used to intervene in the manage-
ment of the issuer and, on the other, disposed of within one
year of acquisition.

4. The relevant competent authorities shall work in full
consultation with each other when carrying out
the
(hereinafter
assessment provided for in Article 10b(1)
referred to as the assessment) if the proposed acquirer is
one of the following:

(a)

(b)

(c)

a credit institution, assurance undertaking, insurance
undertaking,
investment
reinsurance undertaking,
firm or UCITS management company authorised in
another Member State or in a sector other than that in
which the acquisition is proposed;

the parent undertaking of a
institution,
credit
assurance undertaking,
insurance undertaking, rein-
firm or UCITS
surance undertaking,
investment
management company authorised in another Member
State or in a sector other than that in which the
acquisition is proposed; or

legal person controlling a credit
a natural or
institution, assurance undertaking,
insurance under-
taking, reinsurance undertaking, investment firm or
UCITS management company authorised in another
Member State or in a sector other than that in which
the acquisition is proposed.

The competent authorities shall, without undue delay,
provide each other with any information which is essential

or relevant for the assessment. In this regard, the competent
authorities shall communicate to each other upon request
all relevant information and shall communicate on their
own initiative all essential information. A decision by the
competent authority that has authorised the investment
firm in which the acquisition is proposed shall indicate any
views or reservations expressed by the competent authority
responsible for the proposed acquirer.’;

3.

the following Articles shall be inserted:

‘Article 10a

Assessment period

1. The competent authorities shall, promptly and in any
event within two working days following receipt of the
subparagraph of
notification required under
Article 10(3), as well as following the possible subsequent
receipt of the information referred to in paragraph 2 of this
Article, acknowledge receipt
in writing to the
proposed acquirer.

the first

thereof

The competent authorities shall have a maximum of sixty
working days as from the date of the written acknowl-
edgement of receipt of the notification and all documents
required by the Member State to be attached to the
notification on the basis of the list referred to in Article 10b
(4) (hereinafter referred to as the assessment period), to
carry out the assessment.

The competent authorities shall
inform the proposed
acquirer of the date of the expiry of the assessment period
at the time of acknowledging receipt.

2. The competent authorities may, during the assessment
period, if necessary, and no later than on the 50th working
day of
any further
information that is necessary to complete the assessment.
Such request shall be made in writing and shall specify the
additional information needed.

assessment period,

request

the

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 20
working days. Any further requests by the competent
authorities for completion or clarification of the informa-
tion shall be at their discretion but may not result in an
interruption of the assessment period.

3. The competent authorities may extend the interruption
referred to in the second subparagraph of paragraph 2 up
to 30 working days if the proposed acquirer is:

(a)

situated or regulated outside the Community; or

(b)

a natural or legal person not subject to supervision
this Directive or Directives 85/611/EEC,
under
or
92/49/EEC (*),
2006/48/EC (***).

2005/68/EC (**)

2002/83/EC,

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If the competent authorities, upon completion of the
4.
assessment, decide to oppose the proposed acquisition, they
shall, within two working days, and not exceeding the
assessment period, inform the proposed acquirer in writing
and provide the reasons for that decision. Subject
to
national law, an appropriate statement of the reasons for
the decision may be made accessible to the public at the
request of the proposed acquirer. This shall not prevent a
Member State from allowing the competent authority to
make such disclosure in the absence of a request by the
proposed acquirer.

If

5.
the competent authorities do not oppose the
proposed acquisition within the assessment period in
writing, it shall be deemed to be approved.

6. The competent authorities may fix a maximum period
for concluding the proposed acquisition and extend it
where appropriate.

7. Member States may not impose requirements for the
notification to and approval by the competent authorities
of direct or indirect acquisitions of voting rights or capital
that are more stringent than those set out in this Directive.

Article 10b

Assessment

1.
In assessing the notification provided for in Article 10
(3) and the information referred to in Article 10a(2), the
competent authorities shall, in order to ensure the sound
and prudent management of the investment firm in which
an acquisition is proposed, and having regard to the likely
influence of the proposed acquirer on the investment firm,
appraise 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;

(b)

(c)

the reputation and experience of any person who will
direct the business of the investment firm as a result
of the proposed acquisition;

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 proposed;

(d) whether the investment firm will be able to comply
and continue to comply with the prudential require-
ments based on this Directive and, where applicable,
other Directives, notably, Directives 2002/87/EC (4)*
and 2006/49/EC (5)*, in particular, whether the group
of which it will become a part has a structure that
makes it possible to exercise effective supervision,
effectively exchange information among the compe-
tent authorities and determine the allocation of
responsibilities among the competent authorities;

(e) whether there are reasonable grounds to suspect that,
in connection with the proposed acquisition, money

laundering or terrorist financing within the meaning
of Article 1 of Directive 2005/60/EC (6)* is being or
has been committed or attempted, or
the
proposed acquisition could increase the risk thereof.

that

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

this Directive,

2. The competent authorities may oppose the proposed
acquisition only if there are reasonable grounds for doing
so on the basis of the criteria set out in paragraph 1 or if
the information provided by the proposed acquirer is
incomplete.

3. Member States shall neither impose any prior condi-
tions in respect of
the level of holding that must be
acquired nor allow their competent authorities to examine
the proposed acquisition in terms of the economic needs of
the market.

4. Member States shall make publicly available a list
specifying the information that is necessary to carry out the
assessment and that must be provided to the competent
authorities at
the time of notification referred to in
Article 10(3). The information required shall be propor-
tionate and adapted to the nature of the proposed acquirer
and the proposed acquisition. Member States shall not
require information that is not relevant for a prudential
assessment.

5. Notwithstanding Article 10a(1), (2) and (3), where two
or more proposals
increase qualifying
to acquire or
holdings in the same investment firm have been notified
to the competent authority,
the
proposed acquirers in a non-discriminatory manner.

the latter shall

treat

(*)

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 (third non-life insurance Directive)
(OJ
L 228, 11.8.1992, p. 1). Directive as last amended
by Directive 2007/44/EC of the European Parliament
and of the Council (OJ L 247, 21.9.2007, p. 1).
(**) Directive 2005/68/EC of the European Parliament and
of the Council of 16 November 2005 on reinsurance
(OJ L 323, 9.12.2005, p. 1). Directive as amended by
Directive 2007/44/EC.

(***) Directive 2006/48/EC of the European Parliament and
of the Council of 14 June 2006 relating to the taking
up and pursuit of the business of credit institutions
(recast) (OJ L 177, 30.6.2006, p. 1). Directive as last
amended by Directive 2007/44/EC.

(4)* Directive 2002/87/EC of the European Parliament and
of
the Council of 16 December 2002 on the
institutions,
supplementary supervision of
insurance undertakings and investment firms in a

credit

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Official Journal of the European Union

L 247/11

financial conglomerate (OJ L 35, 11.2.2003, p. 1).
Directive as amended by Directive 2005/1/EC (OJ
L 79, 24.3.2005, p. 9).

(5)* Directive 2006/49/EC of the European Parliament and
of
the Council of 14 June 2006 on the capital
adequacy of investment firms and credit institutions
(recast) (OJ L 177, 30.6.2006, p. 201).

(6)* Directive 2005/60/EC of the European Parliament and
of the Council of 26 October 2005 on the prevention
of the use of financial system for the purpose of
money laundering and terrorist financing (OJ L 309,
25.11.2005, p. 15).’

Article 4

Amendments to Directive 2005/68/EC

Directive 2005/68/EC is hereby amended as follows:

1.

in Article 2(2), the third subparagraph shall be replaced by
the following:

in the context of
‘For the purposes of paragraph 1(j),
Articles 12 and 19 to 23 and of the other levels of holding
referred to in Article 19 to 23, the voting rights referred to
in Articles 9 and 10 of Directive 2004/109/EC (*), as well
as the conditions regarding aggregation thereof laid down
in Article 12(4) and (5) of that Directive shall be taken into
account.

Member States shall not take into account voting rights or
shares which investment firms or credit institutions may
hold as a result of providing the underwriting of financial
instruments and/or placing of financial instruments on a
firm commitment basis included under point 6 of Section
A of Annex I to Directive 2004/39/EC, provided that those
rights are, on the one hand, not exercised or otherwise used
to intervene in the management of the issuer and, on the
other, disposed of within one year of acquisition.

(*) Directive 2004/109/EC of the European Parliament
and of the Council of 15 December 2004 on the
harmonisation of transparency requirements in rela-
tion to information about issuers whose securities are
admitted to trading on a regulated market (OJ L 390,
31.12.2004, p. 38).’

2.

Article 19 shall be replaced by the following:

‘Article 19

Acquisitions

1. Member States shall require any natural or legal person
or such persons acting in concert (hereinafter referred to as
the proposed acquirer), who have taken a decision either to
acquire, directly or indirectly, a qualifying holding in a
reinsurance undertaking or to further increase, directly or
indirectly, such a qualifying holding in a reinsurance
undertaking 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 referred to as the

first

to notify in writing the
proposed acquisition),
competent authorities of the reinsurance undertaking in
which they are seeking to acquire or increase a qualifying
holding, indicating the size of the intended holding and
relevant
information, as referred to in Article 19a(4).
Member States need not apply the 30 % threshold where, in
accordance with Article 9(3)(a) of Directive 2004/109/EC,
they apply a threshold of one-third.

2. The competent authorities shall, promptly and in any
event within two working days following receipt of the
notification, as well as following the possible subsequent
receipt of
the information referred to in paragraph 3,
acknowledge receipt thereof in writing to the proposed
acquirer.

The competent authorities shall have a maximum of 60
working days as from the date of the written acknowl-
edgement of receipt of the notification and all documents
required by the Member State to be attached to the
notification on the basis of the list referred to in Article 19a
(4) (hereinafter referred to as the assessment period), to
carry out the assessment provided for in Article 19a(1)
(hereinafter referred to as the assessment).

The competent authorities shall
inform the proposed
acquirer of the date of the expiry of the assessment period
at the time of acknowledging receipt.

3. The competent authorities may, during the assessment
period, if necessary, and no later than on the 50th working
day of
any further
information that is necessary to complete the assessment.
Such request shall be made in writing and shall specify the
additional information needed.

assessment period,

request

the

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 20
working days. Any further requests by the competent
authorities for completion or clarification of the informa-
tion shall be at their discretion but may not result in an
interruption of the assessment period.

4. The competent authorities may extend the interruption
referred to in the second subparagraph of paragraph 3 up
to 30 working days if the proposed acquirer is:

(a)

situated or regulated outside the Community; or

(b)

a natural or legal person not subject to supervision
under this Directive or Directives 85/611/EEC (*), 92/
49/EEC, 2002/83/EC, 2004/39/EC or 2006/48/
EC (**).

5.
If the competent authorities, upon completion of the
assessment, decide to oppose the proposed acquisition, they
shall, within two working days, and not exceeding the
assessment period, inform the proposed acquirer in writing
to
and provide the reasons for that decision. Subject

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Official Journal of the European Union

21.9.2007

national law, an appropriate statement of the reasons for
the decision may be made accessible to the public at the
request of the proposed acquirer. This shall not prevent a
Member State from allowing the competent authority to
make such disclosure in the absence of a request by the
proposed acquirer.

If

6.
the competent authorities do not oppose the
proposed acquisition within the assessment period in
writing, it shall be deemed to be approved.

7. The competent authorities may fix a maximum period
for concluding the proposed acquisition and extend it
where appropriate.

8. Member States may not
impose requirements for
notification to and approval by the competent authorities
of direct or indirect acquisitions of voting rights or capital
that are more stringent than those set out in this Directive.

(*)

laws,

regulations

coordination of

Council Directive 85/611/EEC of 20 December 1985
on the
and
administrative provisions relating to undertakings
for collective investment
in transferable securities
(UCITS) (OJ L 375, 31.12.1985, p. 3). Directive as last
amended by Directive 2005/1/EC of the European
Parliament and of the Council (OJ L 79, 24.3.2005,
p. 9).

(**) Directive 2006/48/EC of the European Parliament and
of the Council of 14 June 2006 relating to the taking
up and pursuit of the business of credit institutions
(recast) (OJ L 177, 30.6.2006, p. 1). Directive as last
amended by Directive 2007/44/EC.’

3.

the following Article shall be inserted:

‘Article 19a

Assessment

In assessing the notification provided for in Article 19
1.
(1) and the information referred to in Article 19(3), the
competent authorities shall, in order to ensure the sound
and prudent management of the reinsurance undertaking in
which an acquisition is proposed, and having regard to the
likely influence of the proposed acquirer on the reinsurance
the proposed
undertaking, appraise the suitability of
acquirer and the financial soundness of
the proposed
acquisition against all of the following criteria:

(a)

the reputation of the proposed acquirer;

(b)

the reputation and experience of any person who will
direct the business of the reinsurance 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 reinsurance undertaking in which
the acquisition is proposed;

(d) whether the reinsurance undertaking will be able to
comply and continue to comply with the prudential
requirements based on this Directive and, where
applicable, other Directives, notably, Directives 98/78/
EC and 2002/87/EC, in particular, whether the group
of which it will become a part has a structure that
makes it possible to exercise effective supervision,
effectively exchange information among the compe-
tent authorities and determine the allocation of
responsibilities among the competent authorities;

(e) whether there are reasonable grounds to suspect that,
in connection with the proposed acquisition, money
laundering or terrorist financing within the meaning
of Article 1 of Directive 2005/60/EC (*) is being or
has been committed or attempted, or
the
proposed acquisition could increase the risk thereof.

that

2. The competent authorities may oppose the proposed
acquisition only if there are reasonable grounds for doing
so on the basis of the criteria set out in paragraph 1 or if
the information provided by the proposed acquirer is
incomplete.

3. Member States shall neither impose any prior condi-
tions in respect of
the level of holding that must be
acquired nor allow their competent authorities to examine
the proposed acquisition in terms of the economic needs of
the market.

4. Member States shall make publicly available a list
specifying the information that is necessary to carry out the
assessment and that must be provided to the competent
authorities at
the time of notification referred to in
Article 19(1). The information required shall be propor-
tionate and adapted to the nature of the proposed acquirer
and the proposed acquisition. Member States shall not
require information that is not relevant for a prudential
assessment.

5. Notwithstanding Article 19(2), (3) and (4), where two
or more proposals
increase qualifying
to acquire or
holdings in the same reinsurance undertaking have been
notified to the competent authority, the latter shall treat the
proposed acquirers in a non-discriminatory manner.

(*) Directive 2005/60/EC of the European Parliament and
of the Council of 26 October 2005 on the prevention
of the use of financial system for the purpose of
money laundering and terrorist financing (OJ L 309,
25.11.2005, p. 15).’

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4.

Article 20 shall be replaced by the following:

Article 5

‘Article 20

Amendments to Directive 2006/48/EC

Acquisitions by regulated financial undertakings

Directive 2006/48/EC is hereby amended as follows:

1. The relevant competent authorities shall work in full
consultation with each other when carrying out
the
assessment if the proposed acquirer is one of the following:

(a)

(b)

(c)

a credit institution, assurance undertaking, insurance
undertaking,
investment
reinsurance undertaking,
firm or management company within the meaning
of Article 1a, point 2 of Directive 85/611/EEC
(hereinafter referred to as the UCITS management
company) authorised in another Member State or in a
sector other than that in which the acquisition is
proposed;

institution,
credit
the parent undertaking of a
insurance undertaking, rein-
assurance undertaking,
surance undertaking,
firm or UCITS
investment
management company authorised in another Member
State or in a sector other than that in which the
acquisition is proposed; or

legal person controlling a credit
a natural or
institution, assurance undertaking,
insurance under-
taking, reinsurance undertaking, investment firm or
UCITS management company authorised in another
Member State or in a sector other than that in which
the acquisition is proposed.

2. The competent authorities shall, without undue delay,
provide each other with any information which is essential
or relevant for the assessment. In this regard, the competent
authorities shall communicate to each other upon request
all relevant information and shall communicate on their
own initiative all essential information. A decision by the
competent authority that has authorised the reinsurance
undertaking in which the acquisition is proposed shall
reservations expressed by the
indicate any views or
competent
the proposed
acquirer.’;

responsible

authority

for

1.

in Article 12(1), the second subparagraph shall be 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 (*), as well as the conditions regarding aggregation
thereof laid down in Article 12(4) and (5) of that Directive
shall be taken into account.

Member States shall not take into account voting rights or
shares which investment firms or credit institutions may
hold as a result of providing the underwriting of financial
instruments and/or placing of financial instruments on a
firm commitment basis included under point 6 of Section
A of Annex I to Directive 2004/39/EC (**), provided that
those rights are, on the one hand, not exercised or
otherwise used to intervene in the management of the
issuer and, on the other, disposed of within one year of
acquisition.

(*) Directive 2004/109/EC of the European Parliament
and of the Council of 15 December 2004 on the
harmonisation of transparency requirements in rela-
tion to information about issuers whose securities are
admitted to trading on a regulated market (OJ L 390,
31.12.2004, p. 38).

(**) Directive 2004/39/EC of the European Parliament and
the Council of 21 April 2004 on markets in
of
financial
instruments (OJ L 145, 30.4.2004, p. 1).
Directive as last amended by Directive 2007/44/EC
(OJ L 247, 21.9.2007, p. 1)’

2.

Article 19 shall be replaced by the following:

5.

in Article 21, the second paragraph shall be replaced by the
following:

‘Article 19

likewise notify the competent
‘Such a person shall
authorities if he has taken a decision to reduce his
qualifying holding so that the proportion of the voting
rights or of the capital held would fall below 20 %, 30 % or
50 % or so that the reinsurance undertaking would cease to
be his subsidiary. Member States need not apply the 30 %
threshold where,
in accordance with Article 9(3)(a) of
Directive 2004/109/EC, they apply a threshold of one-
third.’;

6.

in Article 56, the following point shall be added:

‘(f)

adjustments 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.’

institution or

1. Member States shall require any natural or legal person
or such persons acting in concert (hereinafter referred to as
the proposed acquirer), who have taken a decision either to
acquire, directly or indirectly, a qualifying holding in a
credit
increase, directly or
to further
indirectly, such a qualifying holding in a credit institution
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 referred to as the proposed acquisi-
tion), first to notify in writing the competent authorities of
the credit institution in which they are seeking to acquire or
increase a qualifying holding,
indicating the size of the
intended holding and relevant information, as referred to in
Article 19a(4). Member States need not apply the 30 %
in accordance with Article 9(3)(a) of
threshold where,
Directive 2004/109/EC, they apply a threshold of one-third.

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2. The competent authorities shall, promptly and in any
event within two working days following receipt of the
notification, as well as following the possible subsequent
receipt of
the information referred to in paragraph 3,
acknowledge receipt thereof in writing to the proposed
acquirer.

The competent authorities shall have a maximum of sixty
working days as from the date of the written acknowl-
edgement of receipt of the notification and all documents
required by the Member State to be attached to the
notification on the basis of the list referred to in Article 19a
(4) (hereinafter referred to as the assessment period), to
carry out the assessment provided for in Article 19a(1)
(hereinafter referred to as the assessment).

The competent authorities shall
inform the proposed
acquirer of the date of the expiry of the assessment period
at the time of acknowledging receipt.

3. The competent authorities may, during the assessment
period, if necessary, and no later than on the 50th working
any further
day of
information that is necessary to complete the assessment.
Such request shall be made in writing and shall specify the
additional information needed.

assessment period,

request

the

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 20
working days. Any further requests by the competent
authorities for completion or clarification of the informa-
tion shall be at their discretion but may not result in an
interruption of the assessment period.

4. The competent authorities may extend the interruption
referred to in the second subparagraph of paragraph 3 up
to thirty working days if the proposed acquirer is:

(a)

situated or regulated outside the Community; or

(b)

a natural or legal person not subject to supervision
under this Directive or Directives 85/611/EEC (*), 92/
49/EEC (**), 2002/83/EC (***), 2004/39/EC or 2005/
68/EC (4)*.

5.
If the competent authorities, upon completion of the
assessment, decide to oppose the proposed acquisition, they
shall, within two working days, and not exceeding the
assessment period, inform the proposed acquirer in writing
to
and provide the reasons for that decision. Subject
national law, an appropriate statement of the reasons for
the decision may be made accessible to the public at the
request of the proposed acquirer. This shall not prevent a
Member State from allowing the competent authority to
make such disclosure in the absence of a request by the
proposed acquirer.

7. The competent authorities may fix a maximum period
for concluding the proposed acquisition and extend it
where appropriate.

impose requirements for
8. Member States may not
notification to and approval by the competent authorities
of direct or indirect acquisitions of voting rights or capital
that are more stringent than those set out in this Directive.

(*)

coordination of

Council Directive 85/611/EEC of 20 December 1985
on the
and
administrative provisions relating to undertakings
in transferable securities
for collective investment
(UCITS) (OJ L 375, 31.12.1985, p. 3). Directive as last
amended by Directive 2005/1/EC.

regulations

laws,

(**) 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 (third non-life insurance Directive)
(OJ
L 228, 11.8.1992, p. 1). Directive as last amended
by Directive 2007/44/EC.

(***) Directive 2002/83/EC of the European Parliament and
of the Council of 5 November 2002 concerning life
assurance (OJ L 345, 19.12.2002, p. 1). Directive as
last amended by Directive 2007/44/EC.

(4)* Directive 2005/68/EC of the European Parliament and
of the Council of 16 November 2005 on reinsurance
(OJ L 323, 9.12.2005, p. 1). Directive as amended by
Directive 2007/44/EC.’;

3.

the following Articles shall be 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, in order to ensure the sound
and prudent management of the credit institution in which
an acquisition is proposed, and having regard to the likely
influence of the proposed acquirer on the credit institution,
appraise 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;

(b)

(c)

the reputation and experience of any person who will
direct the business of the credit institution as a result
of the proposed acquisition;

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

If

6.
the competent authorities do not oppose the
proposed acquisition within the assessment period in
writing, it shall be deemed to be approved.

(d) whether the credit institution will be able to comply
and continue to comply with the prudential require-
ments based on this Directive and, where applicable,

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Official Journal of the European Union

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other Directives, notably, Directives 2000/46/EC,
2002/87/EC and 2006/49/EC, in particular, whether
the group of which it will become a part has a
structure that makes it possible to exercise effective
supervision, effectively exchange information among
the competent authorities and determine the alloca-
tion of responsibilities among the competent author-
ities;

(e) whether there are reasonable grounds to suspect that,
in connection with the proposed acquisition, money
laundering or terrorist financing within the meaning
of Article 1 of Directive 2005/60/EC (*) is being or
has been committed or attempted, or
the
proposed acquisition could increase the risk thereof.

that

2. The competent authorities may oppose the proposed
acquisition only if there are reasonable grounds for doing
so on the basis of the criteria set out in paragraph 1 or if
the information provided by the proposed acquirer is
incomplete.

State or in a sector other than that in which the
acquisition is proposed; or

(c)

legal person controlling a credit
a natural or
insurance under-
institution, assurance undertaking,
taking, reinsurance undertaking, investment firm or
UCITS management company authorised in another
Member State or in a sector other than that in which
the acquisition is proposed.

2. The competent authorities shall, without undue delay,
provide each other with any information which is essential
or relevant for the assessment. In this regard, the competent
authorities shall communicate to each other upon request
all relevant information and shall communicate on their
own initiative all essential information. A decision by the
competent authority that has authorised the credit institu-
tion in which the acquisition is proposed shall indicate any
views or reservations expressed by the competent authority
responsible for the proposed acquirer.

3. Member States shall neither impose any prior condi-
tions in respect of
the level of holding that must be
acquired nor allow their competent authorities to examine
the proposed acquisition in terms of the economic needs of
the market.

(*) Directive 2005/60/EC of the European Parliament and
of the Council of 26 October 2005 on the prevention
of the use of financial system for the purpose of
money laundering and terrorist financing (OJ L 309,
25.11.2005, p. 15).’

4. Member States shall make publicly available a list
specifying the information that is necessary to carry out the
assessment and that must be provided to the competent
the time of notification referred to in
authorities at
Article 19(1). The information required shall be propor-
tionate and adapted to the nature of the proposed acquirer
and the proposed acquisition. Member States shall not
require information that is not relevant for a prudential
assessment.

5. Notwithstanding Article 19(2), (3) and (4), where two
increase qualifying
to acquire or
or more proposals
holdings in the same credit institution have been notified
to the competent authority,
the
proposed acquirers in a non-discriminatory manner.

the latter shall

treat

Article 19b

1. The relevant competent authorities shall work in full
consultation with each other when carrying out
the
assessment if the proposed acquirer is one of the following:

(a)

a credit institution, assurance undertaking, insurance
undertaking,
investment
reinsurance undertaking,
firm or management company within the meaning
of Article 1a, point 2 of Directive 85/611/EEC
(hereinafter referred to as the UCITS management
company) authorised in another Member State or in a
sector other than that in which the acquisition is
proposed;

(b)

the parent undertaking of a
institution,
credit
assurance undertaking,
insurance undertaking, rein-
firm or UCITS
surance undertaking,
investment
management company authorised in another Member

4.

Article 20 shall be replaced by the following:

‘Article 20

The Member States shall require any natural or legal person
who has taken a decision to dispose, directly or indirectly,
of a qualifying holding in a credit institution first to notify
in writing the competent authorities, indicating the size of
his intended holding. Such a person shall likewise notify the
competent authorities if he has taken a decision to reduce
his qualifying holding so that the proportion of the voting
rights or of the capital held would fall below 20 %, 30 % or
50 % or so that the credit institution would cease to be his
subsidiary. Member States need not apply the 30 %
threshold where,
in accordance with Article 9(3)(a) of
Directive 2004/109/EC, they apply a threshold of one-
third.’;

5.

Article 21(3) shall be replaced by the following:

‘3.
In determining whether the criteria for a qualifying
holding in the context of Articles 19 and 20 and this
Article are fulfilled, the voting rights referred to in Articles 9
and 10 of Directive 2004/109/EC, as well as the conditions
regarding aggregation thereof laid down in Article 12(4)
and (5) of that Directive, shall be taken into account.

In determining whether the criteria for a qualifying holding
referred to in this Article are fulfilled, Member States shall
not
take into account voting rights or shares which
investment firms or credit institutions may hold as a result
of providing the underwriting of financial instruments and/
or placing of financial instruments on a firm commitment
basis included under point 6 of Section A of Annex I to

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21.9.2007

Directive 2004/39/EC, provided that those rights are, on
the one hand, not exercised or otherwise used to intervene
in the management of the issuer and, on the other, disposed
of within one year of acquisition.’;

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.

6.

in Article 150(2), the following point shall be added:

‘(f)

adjustments 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 6

Review

By 21 March 2011, the Commission shall, in cooperation with
the Member States, review the application of this Directive and
submit a report to the European Parliament and the Council,
together with any appropriate proposals.

Article 7

Transposition

Article 8

Entry into force

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

its

2. The assessment procedure applied to proposed acquisitions
for which notifications referred to in Articles 1(2), 2(2), 3(2), 4(2)
and 5(2) have been submitted to the competent authorities prior
to the entry into force of the laws, regulations and administrative
provisions necessary to comply with this Directive, shall be
carried out in accordance with the national law of the Member
States in force at the time of notification.

Article 9

Addressees

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 21 March 2009. 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.

This Directive is addressed to the Member States.

Done at Strasbourg, 5 September 2007.

For the European Parliament

For the Council

The President

The President

H.-G. PÖTTERING

M. LOBO ANTUNES