CELEX: 52014PC0167
Language: en
Date: 2014-03-27
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the activities and supervision of institutions for occupational retirement provision (recast)

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		52014PC0167
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the activities and supervision of institutions for occupational retirement provision (recast) /* COM/2014/0167 final - 2014/0091 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           Context of the proposal
European society is ageing. Pension systems across the European
Union (EU) have to adapt in order to ensure adequate, safe and sustainable
pensions. This is not a simple matter. Effectively addressing these challenges
requires closely coordinated action by Member States. The proposed revision of Directive
2003/41/EC on the activities and supervision of institutions for occupational
retirement provision (IORPs)[1]
will make those institutions better governed, more transparent and increasing
their cross-border activity, thereby strengthening the internal market. 
In a number of respects the Directive's review is long overdue. 
First, higher governance standards reflecting best practices at
national level following the economic and financial crisis are needed to
protect scheme members and beneficiaries, and facilitate safe cross-border
provisioning. Some IORPs are large financial institutions, and their failure
could impact on financial stability and have significant social consequences. This
is particularly relevant as more and more occupational
pensions are defined-contribution (DC) schemes. The
pensions of the members of these schemes are at risk in case of possible
insufficient risk governance or mismanagement.[2]
 
Second, regulatory divergences, overlapping requirements, and
excessively burdensome cross-border procedures must be reduced. Commission's
consultations have shown that these are one of the obstacles to develop
cross-border occupational pensions markets, and reducing those obstacles would
help companies, including SMEs and multinationals, to organise their pension
provision on a European scale more efficiently.[3]
Cross-border IORPs, such as the pan-European pension fund for mobile
researchers[4]
or a planned cross-border scheme for Austrian employers[5] are limited today. But the
increasing pressure on the  occupational pensions sector is likely to grow
significantly in view of increasingly limited public pensions systems, and
cross-border IORPs have the potential to represent an increasing share in
occupational pension provision. In fact, new legislation has been introduced in
several Member States aimed at positioning them as locations of choice for
cross-border IORPs.[6]

Third, there is evidence of significant gaps in the level of information
provided to scheme members and beneficiaries across the EU. Many scheme members
are not aware that their pension rights are not guaranteed or even if accrued
that they could be cut by IORPs, contrary to other financial contracts.[7] They are also often not
aware that charges have a significant impact on pension rights.
This proposal builds on a number of initiatives launched in recent
years such as the White Paper on pensions[8]
and the Green Paper on long-term financing of the European economy.[9] Following on from this
last Paper, the revision of the Directive also aims to strengthen the capacity
of IORPs to invest in assets with a long-term economic profile and support the
financing of sustainable growth in the real economy.
The IORP sector is being developed in many Member States where
occupational pensions so far play a limited role, including by setting up
regulatory frameworks.  Failing to provide an up-to-date EU regulatory
framework now entails the risk that Member States continue to develop diverging
solutions, thereby exacerbating regulatory fragmentation. Furthermore, improvements
to the performance of occupational pensions require long periods of time to
materialise. Failing to act now would lead to lost opportunities in terms of
cost savings and investment returns, and inadequate financial planning by
millions of Europeans. It would also increase the burden disproportionately for
younger generations and undermine inter-generational solidarity. 
This proposal does not consider the introduction of new solvency
rules, which are in any event not relevant for DC schemes. Moreover, a quantitative
impact study[10]
conducted by the European Insurance and Occupational Pensions Authority (EIOPA)
in 2013 indicated that more complete data on solvency aspects are necessary
before a decision can be taken on those aspects.
1.1.        Objectives of the proposal
The general objective of this proposal is to facilitate the
development of occupational retirement savings. Safer, more efficient occupational
pensions will contribute to pension adequacy and sustainability by enhancing
the contribution of complementary retirement savings to retirement incomes. It
will also reinforce IORPs' role as institutional investors in the EU’s real
economy and enhance the capacity of the European economy to channel long-term
savings to growth-enhancing investment.
This proposal has four specific objectives: (1) removing remaining
prudential barriers for cross-border IORPs, notably by requiring that the rules
on investment and disclosure of information to members and beneficiaries are
those of the home Member State, as well as by clarifying procedures for
cross-border activities and clearly defining the scope of action of home and
host Member State; (2) ensuring good governance and risk management; (3)
providing clear and relevant information to members and beneficiaries; and (4)
ensuring that supervisors have the necessary tools to effectively supervise
IORPs.
1.2.        Consistency with other
policies and objectives of the Union
The objectives of this proposal are consistent with the policies and
objectives pursued by the Union. The Treaty on the Functioning of the European
Union (TFEU) provides for action to ensure the establishment and functioning of
the internal market with a high level of consumer protection, as well as the
freedom to provide services.
This proposal is in line with the White Paper on pensions. At the
same time it is consistent with the Europe 2020 strategy, which calls for
fiscal consolidation and long-term financial sustainability to go hand in hand
with structural reform of pension systems in Member States.[11] Finally, this proposal is consistent with other initiatives in the
field of financial services, such as Solvency II[12], AIFMD[13] and MiFID II[14]. As such it falls well
within the scope of the Commission's agenda towards a stronger financial sector
to support growth.[15] 
The proposal promotes human rights by protecting retirement
provision. It is in line with Article 25 of the Charter of Fundamental Rights of
the EU which calls for recognition and respect for the rights of the elderly to
lead a life of dignity and independence. The proposed actions would have a
positive impact on consumer protection under Article 38 and freedom to conduct
business under Article 16, in particular by ensuring a higher level of
transparency of retirement provisioning, informed personal financial and
retirement planning as well as facilitating cross-border business of IORPs and
their sponsors. The general objective justifies certain limitations on the
freedom to conduct a business (Article 16) as the proposal aims at ensuring the
market integrity and stability.
2.           Results of consultation
with interested parties and impact assessment
This proposal builds on multiple public consultations regarding
requirements on quantitative aspects, governance and information disclosures.
Given the specific nature of the IORP activities, the consultations consistenly
included the social partners (employers and trade unions). In July 2010, the
Commission consulted on its Green Paper on pensions in which it outlined a number
of its ideas regarding this review.[16] The consultation drew almost 1700 responses from across the EU,
including 350 from Member States, national parliaments, business and trade union
organisations, civil society and industry representatives.[17] 
Taking into account the feedback on the Green Paper on pensions, the
Commission Services asked EIOPA in April 2011 to provide technical advice on
how to change the Directive. EIOPA recommended that - taking into account the
principle of proportionality - the governance framework set out in the Solvency
II Directive should apply to IORPs. The publication of the draft advice[18] was followed by an
extensive consultation.[19] EIOPA delivered its final advice in February 2012, on the basis of
which Directorate-General for Internal Market and Services organised an
exchange of views amongst stakeholders during a public hearing on 1 March 2012.
Subsequently, the Commission Services conducted a Quantitative Impact Study on the
quantitative requirements, as well as a study on administrative burden for aspects
relating to governance and information disclosures. Both studies built on the
contributions from the industry and social partners.
This proposal is accompanied by an impact assessment report that
considers a range of policy options and sub-options. The report was first
submitted to the Impact Assessment Board on 4 September 2013. The Board asked
for resubmission with additional information on the views of the different
stakeholder groups, problem definition, subsidiarity and proporionality aspects,
options and expected impacts. The report was revised accordingly and the main
changes were: (i) a more comprensive description of the views of the Member
States and different stakeholder categories; (ii) a more detailed explanation of
the problems being addressed by the proposed action; (iii) as regards
subsidiarity, a more detailed description of the case for EU action; (iv) a
clarification that further harmonisation of supervisory reporting is not being
proposed; (v) a new section on the impact of the initiative on small and
medium-sized enterprises; and (vi) a more detailed description of the
assumptions used in the calculation of the expected benefits and costs of the
various options. The impact assessment was resubmitted on 16 October 2013. On 6
November the Board stated it could not issue a positive opinion and requested some
further amendments. 
3.           Legal elements of the
proposal 
3.1.        Legal basis
This proposal recasts Directive 2003/41/EC.
It simultaneously codifies its unchanged provisions and amends it. The legal
bases of Directive 2003/41/EC are ex-Articles 47(2), 55 and 95 EC (currently
Articles 53, 62 and 114(1) TFEU).
The proposal maintains the legal bases of the
Directive. It seeks both to establish the internal market by means of freedom
to provide services and freedom of establishment when regulating the taking-up
and pursuit of activities as self-employed persons and when establishing a high
level of protection for consumers.
Directive 2003/41/EC regulates areas such
as the conditions of operations of IORPs, including a common approach to
registration or authorisation, rules and procedures to be followed when IORPs
wish to offer their services in other Member States, quantitative solvency
rules, investment rules based on the prudent person principle, requirements on
the effective management, including fit and proper requirements, the use of
internal audit and actuarial services, risk management requirements, the use of
depositories, information to be disclosed to members and beneficiaries and
supervisory powers and reporting obligations. 
This proposal further builds on these
elements. As to the information to be disclosed by the IORP it, for example,
introduces an EU-wide pension benefit statement. With regard to effective
management of IORPs it lays down more detailed rules on fit and proper and key functions
including risk management. The proposal also aims to facilitate cross-border
activity. 
The two objectives of Directive 2003/41/EC
are retained. Neither of the objectives is secondary or indirect in relation to
the other. For example, the professionalization of IORP management by defining
the tasks and responsibilities of key management staff and the introduction of
a forward-looking self-risk assessment strengthens consumer protection. Conversely,
better information through the pension benefit statement empowers members and
beneficiaries to hold IORP management more accountable. A higher level of harmonisation
of those requirements facilitates cross-border activity by reducing transaction
costs and stimulating market innovation.
3.2.        Subsidiarity and
proportionality
EU level action in this field adds value because action by Member
States alone will not: (i) remove obstacles to cross-border activities of
IORPs; (ii) ensure a higher EU-wide minimum level of consumer protection; (iii)
lead to scale economies, risk diversification and innovation inherent to
cross-border activity; (iv) avoid regulatory arbitrage between financial
services sectors; (v) avoid regulatory arbitrage between Member States; and
(vi) take into account the interests of cross-border workers.
Under the proposed action, Member States retain full responsibility
for the organisation of their pension systems. The revision does not call this
prerogative into question. Neither does the revision cover issues of national
social and labour, fiscal or contract legislation.
The proposal complies with the principle of proportionality, as
enshrined in Article 5(4) of the Treaty on European Union (TEU). The selected
policy options seek to strike a balance between public interest, the protection
of members and beneficiaries, as well as the costs for institutions, sponsors
and supervisors. The options have been carefully considered, crafted as minimum
standards and tailored taken into account different business models. This is
why, overall, the proposal will stimulate occupational retirement provision. 
3.3.        References to other
directives
This proposal is a recast exercise and refers to Directives
2003/41/EC, 2009/138/EC, 2010/78/EU[20],
2011/61/EU and 2013/14/EU[21].
Directive 2003/41/EC will be repealed by this Directive.
3.4.        Detailed explanation of
the proposal
As this is a recast of Directive 2003/41/EC, the detailed
explanation below focusses solely on new provisions or provisions that are to
be amended.
Title I – GENERAL PROVISIONS
Article 6 now includes new and/or clarified
definitions of "sponsoring undertaking",
"home Member State", "host Member State", "transferring"
and "receiving" institutions, "regulated market",
"multilateral trading facility", "organised trading facility",
"durable medium" and "key functions".
Article 9, in conjunction with Article
10, no longer list the conditions of operation separately but give
responsibility to Member States to ensure that every institution is registered
or authorised and that they have properly constituted rules for the pension
scheme. 
Article 12 is amended in three ways.
First, it specifies that an institution carries out cross-border activity when
it operates a pension scheme that is subject to the social and labour law of
another Member State, including in situations where the institution and the
sponsoring undertaking are located in the same Member State.[22] Second, paragraph 4
requires a reasoned decision by a competent authority of the home Member State, should the authority ban cross-border activity. Moreover, where a competent
authority of the home Member State does not notify a competent authority of the
host Member State, it shall give reasons for its refusal. Third, the host Member State may no longer impose additional information requirements on institutions
carrying out cross-border activities. This is because the proposal introduces a
standardised pension benefit statement (see Articles 40 to 54).
Article 13 lays down new rules for the
cross-border transfer of pension schemes which must be subject to prior
authorisation by a competent authority of the home Member State of the
receiving institution. Unless national social and labour law on the
organisation of pension systems provides otherwise, the transfer and its
conditions shall be subject to prior approval by members and beneficiaries
concerned or, where applicable, their representatives. Article 13 also
includes rules on exchange of information concerning the applicable social and
labour law under which the pension scheme must be operated. Should, following
the transfer, the receiving institution carry out a cross-border activity, Article
12(8) and (9) apply. The institution will operate the pension scheme
in accordance with the social and labour law of the host Member State[23], thereby not changing
the level of protection of the members and beneficiaries concerned by the
transfer.
Title II – QUANTITATIVE REQUIREMENTS
Article 20 on investment rules is
modified in three ways. First, the host Member State may no longer impose
additional investment rules on institutions carrying out cross-border activities.
This facilitates the organisation of investment management, in particular for defined
contribution schemes. This does not undermine the protection of members and
beneficiaries because it is matched by strenthened governance and supervisory
rules. Second, Article 20(6)(a) has been updated to reflect the terminology
used in Regulation (EU) No …/… [MiFIR]. Third, it replaces the ambiguous term
'risk capital markets' (Article 20(6) (c)) with a terminology that
better reflects the original meaning of this provision, namely that Member
States cannot restrict institutions from investing in long-term instruments
that are not traded on regulated markets. Moreover, investment rules should not
restrict investment in non-listed assets that finance low carbon and climate
resilient infrastructure projects.
A further harmonisation of rules relating to the financial solvency
situation of the institution is not being proposed.
Title III – CONDITIONS GOVERNING ACTIVITIES
For small IORPs, the proposal maintains the possibility for Member
States to exclude institutions managing schemes which together have less than
100 members in total. For other IORPs, specific measures, for instance on the key
functions and risk evaluation, ensure that governance requirements are
proportionate.
CHAPTER 1 – System of governance
Except for Articles 31 and 32 (ex Articles 10 and 12),
this Title is new to the Directive and lays down new detailed governance
requirements for IORPs.
Article 21 sets out that the
administrative, management or supervisory body of the IORP is ultimately
responsible for the IORP's compliance with the laws, regulations and
administrative provisions adopted pursuant to this Directive. The rules on
governance of IORPs are without prejudice to the role of social partners in
their management.
Article 22 establishes that institutions
need to have in place an effective system of governance which provides for
sound and prudent management of their activities. This system shall be
proportionate to the nature, scale and complexity of the activities of the IORPso
as to ensure that the governance requirements will not be too burdensome for
example for small institutions.
Article 23 requires IORPs to ensure that
all persons who effectively run the IORP or have key functions have
professional qualifications, knowledge and experience which are adequate to
enable sound and prudent management of the IORP or to properly perform their
key functions (fit) and that they are of good repute and integrity (proper).
Article 24 sets out that institutions must
have a sound remuneration policy and that this policy is disclosed publicly. The
article also proposes to empower the Commission to adopt a delegated act.
Article 25 sets out the general
principles on key functions. IORPs may allow a single person or organisational
unit to carry out more than one key function, but shall at all times allocate
the risk management function to a different person or organisational unit than
the internal audit function.
Article 26 states that IORPs need to
have in place an effective risk-management system which is necessary to
identify, monitor, manage and report on a continuous basis all risks, including
those related to outsourced or subsequently re-outsourced activities, to which
they are or could be exposed, and their interdependencies. The risk management
should be proportionate to the size, internal organisation and the nature,
scope and complexity of the institution's activities.
Article 27 provides for an effective
internal audit function which evaluates the adequacy and effectiveness of the
internal control system and other elements of its system of governance,
including outsourced or subsequently re-outsourced activities. The internal
audit function is to be assumed by at least one independent person, inside or
outside of the institution.
Article 28 requires an effective
actuarial function to co-ordinate and oversee the calculation of technical
provisions as well as to assess the appropriateness of the methodologies and
underlying models, where members and beneficiaries do not bear all the risks.
Article 29 sets out that institutions
need to produce a risk evaluation for pensions regularly and without delay
following any significant change in the institution's risk profile. The evaluation
needs to demonstrate the compatibility of a number of elements in line with national
requirements. The evaluation should include new or emerging risks relating to
climate change, use of resources and the environment. The risk evaluation for
pensions should be proportionate to the size, internal organisation and the
nature, scope and complexity of the institution's activities.
Article 30 proposes to empower the
Commission to adopt a delegated act with regard to the risk evaluation for
pensions.
CHAPTER 2 – Outsourcing and investment
management
Article 33 lays
down the rules for contracting to third parties (outsourcing), including
re-outsourced activities.
CHAPTER 3 – Depositary
Articles 35 to 37 set out that IORPs
need to appoint a single depositary for safe-keeping of assets and oversight duties
if members and beneficiaries fully bear the investment risk.
Title IV – INFORMATION TO BE GIVEN TO
THE PROSPECTIVE MEMBERS, MEMBERS AND BENEFICIARIES
CHAPTER 1 – General provisions
This Chapter lays down the details of the information to be provided
to members, prospective members, and after retirement, beneficiaries and
building on former Article 11. 
Article 38 sets out the general
principle for information disclosures.
Article 39 lays down the type of
information that members (and beneficiaries) need to receive, such as the
rights and obligations of the parties, the risks and investment options and
whether these are default or not. The conditions of the particular pension
scheme must be published on a website by the institution concerned.
Article 40 places an obligation on IORPs
to provide, every twelve months, a pension benefit statement (‘PBS’) for the
individual in the clearest possible way, also as a basis to feed information into
a potential pension tracking service as described in the White Paper on
pensions.[24]
Where Member States already provide for comprehensive information to
individuals covering one or more pension pillars, they will maintain the
flexibility to design their pension information systems, as long as they comply
with the requirements of this proposal.
CHAPTER 2 – Pension Benefit Statement 
Articles 40 to 44 lay down general
provisions for the PBS - which is intended for active members of the pension
scheme. The idea of the PBS is based on EIOPA’s Advice to the European
Commission on the review of the IORP Directive, draws on national best
practices in several Member States and international work developed by the OECD[25]. The PBS ensures
comparability with information required by legislation in other financial
sectors such as the key investor document for open investment funds (UCITS),
while taking into account the specificites of the occupational pensions sector.
Moreover, the PBS leaves sufficient leeway for Member States to introduce more
specific requirements and integrated systems allowing for comparability between
different pillars of the pension system.
The standardisation of the PBS should enable automatisation of the
regular production of the PBS and its potential outsourcing, thereby keeping
costs low in particular for smaller institutions. 
Articles 46 to 53 lay down the
components of the PBS which shall be read together with Article 45. The
compenents are as follows:
·                        
personal details of the member;
·                        
identification of the institution;
·                        
guarantees;
·                        
balance, contributions and costs;
·                        
pension projections;
·                        
investment profile;
·                        
past performance; and
·                        
supplementary information.
Article 54 proposes to empower the
Commission to adopt a delegated act with regard to the PBS.
CHAPTER 3 – Other information and documents
to be provided
This Chapter relates to information that should be provided by IORPs
to members and beneficiaries in different pension stages such as just before
enrolment, just before retirement or during the pay-out phase.
Article 55 lays down specific rules for IORP
to provide information to prospective members prior to joining the IORP 's
pension scheme.
Article 56 lays down the information to
be given to members before retirement. This should be provided in addition to
the PBS, at least two years before retirement, whether that is predefined or
not.
Article 57 details the information to be
given to beneficiaries during the pay-out phase. This information to
beneficiaries should replace the PBS. 
Article 58 lays down information to be
given on request by members and beneficiaries.
Title V - PRUDENTIAL SUPERVISION
CHAPTER 1 – General
rules on prudential supervision
Article 59 designates the protection of
scheme members and beneficiaries as the main objective of prudential
supervision.
Article 60 defines which areas are to be
understood as belonging to prudential supervision in the context of this
Directive. This Article takes away the legal uncertainty for IORPs caused by
differences in scope of Member States’ prudential regulation.
Article 61 sets out the general
principles of prudential supervision. It, for example, lays down that the
competent authority of the home Member State has the sole responsibility for
the prudential supervision of all IORPs authorised or registered in its
jurisdiction. The article furthermore establishes the principle that
supervision of IORPs needs to be prospective and risk-based, as well as timely
and proportionate.
Article 63 introduces the supervisory
review process which aims to identify IORPs with financial, organisational or other features susceptible to
producing a higher risk profile.
Article 64 ensures that all the new
requirements introduced by this prosposal are reflected
in the power attributed to competent authorities with regard to the provision
of information.
Article 65 sets out that competent
authorities need to conduct their tasks in a transparent and accountable
manner.
CHAPTER 2 –
Professional secrecy and exchange of information
Articles 66 to 71 make provisions and lay down the conditions for
the exchanges of information between competent authorities and authorities and
bodies which help to strengthen the stability of the financial system.
Title VI – FINAL PROVISIONS
Articles 73 to 81 lay down cooperation
and reporting obligations, conditions for the processing of the personal data.
They include evaluation and review of the Directive, amendment of the Solvency
II Directive 2009/138/EC, the implementation deadline of the Directive, repeals
and addressees.
4.           Budgetary implications
Specific budgetary implications are assessed in the legislative financial
statement and relate to tasks allocated to EIOPA.
ê 2003/41/EC

2014/0091 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on the activities and supervision of
institutions for occupational retirement provision
(recast)
(Text with EEA relevance)
THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 
Having regard to the Treaty establishing the European Communityon the Functioning of the European
Union, and in particular Article 5347(2), Article 6255 and Article 114(1)95(1) thereof,
Having regard to the proposal from the European Commission,
ò new
After
transmission of the draft legislative act to the national Parliaments,
ê 2003/41/EC
Having regard to the opinion of the
European Economic and Social Committee,
ò new
After consulting
the European Data Protection Supervisor,
ê 2003/41/EC

Acting in accordance with the ordinary legislative procedure laid down in Article 251 of the
Treaty(3),
Whereas:
ò new
(1)       Directive 2003/41/EC of the European
Parliament and of the Council[26] has been
substantially amended several times[27]. Since further amendments
are to be made, it should be recast in the interests of clarity.
ê 2003/41/EC
recital 1 
A genuine internal market for financial services is
crucial for economic growth and job creation in the Community.
ê 2003/41/EC
recital 2 (adapted)
ð new
(2)       Major achievements have already been made in
the establishment of Thethis internal market, allowing ð should allow ï financial institutions to operate in other Member States and ensureensuring a high level of protection
for ð members and beneficiaries of occupational
retirement schemes ï the consumers of
financial services.
ê 2003/41/EC
recital 3 (adapted)
The communication
from the Commission "Implementing the framework for financial markets:
action plan" identifies a series of actions that are needed in order to complete
the internal market for financial services, and the European Council, at its
meeting in Lisbon on 23 and 24 March 2000, called for the implementation of
this action plan by 2005.
ê 2003/41/EC
recital 4 (adapted)
The action plan for financial
services stresses as an urgent priority the need to draw up a directive on the
prudential supervision of institutions for occupational retirement provision,
as these institutions are major financial institutions which have a key role to
play in ensuring the integration, efficiency and liquidity of the financial
markets, but they are not subject to a coherent Community legislative framework
allowing them to benefit fully from the advantages of the internal market.
ò new
(3)       Directive
2003/41/EC represented a first legislative step on the way to an internal
market for occupational retirement provision organised on a European scale. A genuine
internal market for occupational retirement provision remains crucial for
economic growth and job creation in the European Union and for tackling the
challenge of an ageing European society. The Directive, dating from 2003, has
not been substantially amended to introduce a modern risk-based governance
system also for institutions for occupational retirement provision.
ê 2003/41/EC
recital 5 (adapted)
ð new
(4)       ð Action is needed to further develop
complementary private retirement savings such as occupational pensions. This is
important since social-security systems are coming under increasing pressure,
which means that citizens will increasingly rely on occupational retirement
pensions as a complement in the future. ï Since social-security
systems are coming under increasing pressure, occupational retirement pensions
will increasingly be relied on as a complement in future. Occupational retirement pensions should therefore be
developed, without, however, calling into question the importance of
social-security pension systems in terms of secure, durable and effective
social protection, which should guarantee a decent standard of living in old
age and should therefore be at the centre of the objective of strengthening the
European social model.
ò new
(5)       This
Directive respects the fundamental rights and observes the principles
recognised by the Charter of Fundamental Rights of the European Union, notably,
the right to protection of personal data, the right to conduct a business and
the right to a high level of consumer protection, in particular by ensuring a
higher level of transparency of retirement provisioning, informed personal
financial and retirement planning as well as facilitating cross-border business
of insitutions for occupational retirement provision and businesses. This Directive
must be implemented in accordance with these rights and principles.
(6)       Despite
the entry into force of Directive 2003/41/EC important prudential barriers
remain which make it more expensive for institutions to operate pension schemes
across borders. Moreover, the current minimum level of protection for members
and beneficiaries needs to be increased. This is all the more important as the
number of Europeans relying on schemes that shift longevity and market risks
from the institution or the undertaking offering the occupational scheme
("sponsoring undertaking") to the individual has increased
significantly. In addition, the current minimum level of information provision
to members and beneficiaries needs to be increased. Those developments warrant
an amendment of the Directive.
ê 2003/41/EC
recital 7
(7)       The prudential rules laid
down in this Directive are intended both to guarantee a high degree of security
for future pensioners through the imposition of stringent supervisory standards,
and to clear the way for the efficient management of occupational pension
schemes.
ê 2003/41/EC
recital 8
(8)       Institutions which are
completely separated from any sponsoring undertaking and which operate on a
funded basis for the sole purpose of providing retirement benefits should have
freedom to provide services and freedom of investment, subject only to
coordinated prudential requirements, regardless of whether these institutions
are considered as legal entities.
ê 2003/41/EC
recital 9
(9)       In accordance with the
principle of subsidiarity, Member States should retain full responsibility for
the organisation of their pension systems as well as for the decision on the
role of each of the three "pillars" of the retirement system in
individual Member States. In the context of the second pillar, they should also
retain full responsibility for the role and functions of the various
institutions providing occupational retirement benefits, such as industry-wide
pension funds, company pension funds and life-assurance companies. This
Directive is not intended to call this prerogative into question.
ê 2003/41/EC
recital 10
(10)     National rules concerning
the participation of self-employed persons in institutions for occupational
retirement provision differ. In some Member States, institutions for
occupational retirement provision can operate on the basis of agreements with
trade or trade groups whose members act in a self-employed capacity or directly
with self-employed and employed persons. In some Member States a self-employed
person can also become a member of an institution when the self-employed person
acts as employer or provides his professional services to an
undertaking. In some Member States self-employed persons cannot join an
institution for occupational retirement provision unless certain requirements,
including those imposed by social and labour law, are met.
ê 2003/41/EC
recital 11 
(11)     Institutions managing
social-security schemes, which are already coordinated at CommunityUnion level,
should be excluded from the scope of this Directive. Account should
nevertheless be taken of the specificity of institutions which, in a single Member State, manage both social-security schemes and occupational pension schemes.
ê 2003/41/EC
recital 12 
(12)     Financial institutions
which already benefit from a CommunityUnion legislative framework should in
general be excluded from the scope of this Directive. However, as these
institutions may also in some cases offer occupational pension services, it is
important to ensure that this Directive does not lead to distortions of
competition. Such distortions may be avoided by applying the prudential
requirements of this Directive to the occupational pension business of
life-assurance companies. The Commission should also carefully monitor the
situation in the occupational pensions market and assess the possibility of
extending the optional application of this Directive to other regulated
financial institutions.
ê 2003/41/EC
recital 13
(13)     When aiming at ensuring
financial security in retirement, the benefits paid by institutions for
occupational retirement provision should generally provide for the payment of a
lifelong pension. Payments for a temporary period or a lump sum should also be
possible.
ê 2003/41/EC
recital 14
(14)     It is important to ensure
that older and disabled people are not placed at risk of poverty and can enjoy
a decent standard of living. Appropriate cover for biometrical risks in
occupational pension arrangements is an important aspect of the fight against
poverty and insecurity among elderly people. When setting up a pension scheme,
employers and employees, or their respective representatives, should consider the
possibility of the pension scheme including provisions for the coverage of the
longevity risk and occupational disability risks as well as provision for
surviving dependants.
ê 2003/41/EC
recital 15
(15)     Giving Member States the
possibility to exclude from the scope of national implementing legislation
institutions managing schemes which together have less than 100 members in
total can facilitate supervision in some Member States, without undermining the
proper functioning of the internal market in this field. However, this should
not undermine the right of such institutions to appoint for the management of
their investment portfolio and the custody of their assets investment managers
and custodians established in another Member State and duly authorised.
ê 2003/41/EC
recital 16
(16)     Institutions such as
"Unterstützungskassen" in Germany, where the members have no legal
rights to benefits of a certain amount and where their interests are protected
by a compulsory statutory insolvency insurance, should be excluded from the
scope of the Directive.
ê 2003/41/EC
recital 17
(17)     In order to protect members
and beneficiaries, institutions for occupational retirement provision should
limit their activities to the activities, and those arising therefrom, referred
to in this Directive.
ê 2003/41/EC
recital 18
(18)     In the event of the
bankruptcy of a sponsoring undertaking, a member faces the risk of losing both
his/her job and his/her acquired pension rights. This makes it necessary to
ensure that there is a clear separation between that undertaking and the
institution and that minimum prudential standards are laid down to protect
members.
ê 2003/41/EC
recital 19
(19)     Institutions for occupational
retirement provision operate and are supervised with significant differences in
Member States. In some Member States, supervision can be exercised not only
over the institution itself but also over the entities or companies which are
authorised to manage these institutions. Member States should be able to take
such specificity into account as long as all the requirements laid down in this
Directive are effectively met. Member States should also be able to allow
insurance entities and other financial entities to manage institutions for
occupational retirement provision.
ê 2003/41/EC
recital 20
(20)     Institutions for
occupational retirement provision are financial service providers which bear a
heavy responsibility for the provision of occupational retirement benefits and
therefore should meet certain minimum prudential standards with respect to
their activities and conditions of operation.
ê 2003/41/EC
recital 21
(21)     The huge number of institutions
in certain Member States means a pragmatic solution is necessary as regards
prior authorisation of institutions. However, if an institution wishes to
manage a scheme in another Member State, a prior authorisation granted by the
competent authority of the home Member State should be required.
ê 2003/41/EC
recital 36 (adapted)
ð new
(22)     Without prejudice to
national social and labour legislation on the organisation of pension systems,
including compulsory membership and the outcomes of collective bargaining
agreements, institutions should have the possibility of providing their
services in other Member States ð upon receipt of the authorisation
from the competent authority of the insitution's home Member State ï. InstitutionsThey
should be allowed to accept sponsorship from undertakings located in ð any ï other Member States and to operate pension schemes with members in more than one Member State. This would potentially lead to significant economies of scale for these
institutions, improve the competitiveness of the UnionCommunity industry and facilitate
labour mobility. This requires
mutual recognition of prudential standards. Proper enforcement of these
prudential standards should be supervised by the competent authorities of the
home Member State, unless specified otherwise.
ê 2003/41/EC
recital 37
ð new
(23)     The exercise of the right
of an institution in one Member State to manage an occupational pension scheme
contracted in another Member State should fully respect the provisions of the
social and labour law in force in the host Member State insofar as it is
relevant to occupational pensions, for example the definition and payment of
retirement benefits and the conditions for transferability of pension rights. ð The scope of prudential rules should
be clarified in order to ensure legal certainty for the cross-border activities
of the insitutions. ï
ò new
(24)     Institutions
should be able to transfer pension schemes to other institutions across borders
within the Union in order to facilitate the organisation of occupational
retirement provision on a Union scale, subject only to authorisation from the
competent authority in the home Member State of the institution receiving the
pension scheme (the "receiving insitution"). Unless national social
and labour law on pension systems provides otherwise, the transfer and its
conditions should be subject to prior approval by members and beneficiaries
concerned or, where applicable, their representatives.
ê 2003/41/EC
recital 26
(25)     A prudent calculation of
technical provisions is an essential condition to ensure that obligations to
pay retirement benefits can be met. Technical provisions should be calculated
on the basis of recognised actuarial methods and certified by qualified
persons. The maximum interest rates should be chosen prudently according to any
relevant national rules. The minimum amount of technical provisions should both
be sufficient for benefits already in payment to beneficiaries to continue to
be paid and reflect the commitments that arise out of members' accrued pension
rights.
ê 2003/41/EC
recital 27
(26)     Risks covered by
institutions vary significantly from one Member State to another. Home Member
States should therefore have the possibility of making the calculation of
technical provisions subject to additional and more detailed rules than those
laid down in this Directive.
ê 2003/41/EC
recital 28
(27)     Sufficient and appropriate
assets to cover the technical provisions protect the interests of members and
beneficiaries of the pension scheme if the sponsoring undertaking becomes
insolvent. In particular in cases of cross-border activity, the mutual
recognition of supervisory principles applied in Member States requires that
the technical provisions be fully funded at all times.
ê 2003/41/EC
recital 29
(28)     If the institution does not
work on a cross-border basis, Member States should be able to permit
underfunding provided that a proper plan is established to restore full funding
and without prejudice to the requirements of Council Directive 80/987/EEC of 20
October 1980 on the approximation of the laws of the Member States relating to
the protection of employees in the event of the insolvency of their employer.[28]
ê 2003/41/EC
recital 30
(29)     In many cases, it could be
the sponsoring undertaking and not the institution itself that either covers
any biometric risk or guarantees certain benefits or investment performance.
However, in some cases, it is the institution itself which provides such cover
or guarantees and the sponsor's obligations are generally exhausted by paying
the necessary contributions. In these circumstances, the products offered are
similar to those of life-assurance companies and the institutions concerned
should hold at least the same additional own funds as life-assurance companies.
ê 2003/41/EC
recital 31
(30)     Institutions are very
long-term investors. Redemption of the assets held by these institutions
cannot, in general, be made for any purpose other than providing retirement
benefits. Furthermore, in order to protect adequately the rights of members and
beneficiaries, institutions should be able to opt for an asset allocation that
suits the precise nature and duration of their liabilities. These aspects call
for efficient supervision and an approach towards investment rules allowing
institutions sufficient flexibility to decide on the most secure and efficient
investment policy and obliging them to act prudently. Compliance with the
"prudent person" rule therefore requires an investment policy geared
to the membership structure of the individual institution for occupational
retirement provision.
ê 2003/41/EC
recital 6 (adapted)
(31)     This Directive thus represents a first step on
the way to an internal market for occupational retirement provision organised
on a European scale. By setting the
"prudent person" rule as the underlying principle for capital
investment and making it possible for institutions to operate across borders,
the redirection of savings into the sector of occupational retirement provision
is encouraged, thus contributing to economic and social progress.
ê 2003/41/EC
recital 32 (adapted)
(32)     Supervisory methods and
practices vary among Member States. Therefore, Member States should be given
some discretion on the precise investment rules that they wish to impose on the
institutions located in their territories. However, these rules must Ö should Õ not restrict
the free movement of capital, unless justified on prudential grounds.
ê 2003/41/EC
recital 33 (adapted)
ð new
(33)     As very long-term investors
with low liquidity risks, institutions for occupational retirement provision
are in a position to invest in non-liquid assets such as shares as well as in ð instruments that have a long-term
economic profile and are not traded on regulated markets, multilateral trading
facilities or organised trading facilities ï risk capital markets within prudent limits. They can also benefit from the advantages of
international diversification. Investments in shares, risk capital markets and Ö in Õ currencies
other than those of the liabilities ð and in instruments that have a
long-term economic profile and are not traded on regulated markets,
multilateral trading facilities or organised trading facilities ï should therefore not be restricted except on prudential grounds.
ò new
(34)     The
understanding of what constitutes instruments with a long-term economic profile
is broad. These instruments are non-transferable securities and therefore do
not have access to the liquidity of secondary markets. They often require fixed
term commitments which restrict their marketability. These instruments should be
understood to include participations, debt instruments in non-listed
undertakings and loans provided to them. Non-listed undertakings include
infrastructure projects, unlisted companies seeking growth, real estate or
other assets that could be suitable for long term investment purposes. Low
carbon and climate resilient infrastructure projects are often non-listed
assets and rely on long term credits for project financing.
ê 2003/41/EC
recital 34 (adapted)
However, if the
institution works on a cross-border basis, it may be asked by the competent
authorities of the host Member State to apply limits for investment in shares
and similar assets not admitted to trading on a regulated market, in shares and
other instruments issued by the same undertaking or in assets denominated in
non-matching currencies provided such rules also apply to institutions located
in the host Member State.
ê 2003/41/EC
recital 35 (adapted)
Restrictions
regarding the free choice by institutions of approved asset managers and
custodians limit competition in the internal market and should therefore be
eliminated.
ò new
(35)     Institutions
should be allowed to invest in other Member States in accordance with the rules
of their home Member States in order to reduce the cost of cross-border
activity. Therefore the host Member States should not be allowed to impose
additional investment requirements on institutions located in other Member
States.
(36)     Some
risks cannot be reduced through quantitative requirements reflected in the
technical provisions and funding requirements but can only be properly
addressed through governance requirements. Ensuring an effective system of
governance is therefore essential for the adequate management of risk. Those systems
should be proportionate to the nature, scale and complexity of the activities.
(37)     Remuneration
policies which encourage excessive risk-taking behaviour can undermine sound
and effective risk management of institutions. Principles and disclosure requirements
for remuneration policies applicable to other types of financial institutions
in the Union should be made applicable also to institutions, bearing in mind,
however, the particular governance structure of institutions in comparison to
other types of financial institutions and the need to take account of the size,
nature, scope and complexity of the activities of institutions.
(38)     A
key function is an internal capacity to undertake particular governance tasks.
Institutions should have sufficient capacity to have a risk-management
function, an internal audit function and, where applicable, an actuarial
function. The identification
of a particular key function does not prevent the institution from freely
deciding how to organise that key function in practice save where otherwise
specified in this Directive. This should not lead to unduly burdensome
requirements because account should be taken of the nature, scale and
complexity of the activities of the institution. 
(39)     All
persons that perform key functions should be fit and proper. However, only the
key function holders should be subject to notification requirements to the competent
authority.
(40)     Furthermore,
with the exception of the internal audit function, in smaller and less complex
institutions it should be possible for a single person or organisational unit
to carry out more than one key function. However, the person or unit performing
a key function should be different from the one performing a similar key function
in the sponsoring undertaking; although the competent authority should be
authorised to grant an exemption taking into account the size, nature, scope
and complexity of the activities of institutions.
(41)     It
is essential that institutions improve their risk management so that potential
vulnerabilities in relation to the sustainability of the pension scheme can be
properly understood and discussed with the competent authorities. Institutions
should, as part of their risk management system, produce a risk evaluation for
their activities relating to pensions. That risk evaluation  should also be
made available to the competent authorities. In that evaluation institutions
should provide among others a qualitative description of key elements
determining their funding position in accordance with national law, the
effectiveness of their risk-management system and the ability to comply with
the requirements regarding technical provisions. This risk evaluation should
include new or emerging risks, such as risks related to climate change,
resource use or the environment.
ê 2003/41/EC
recital 22
(42)     Each Member State should
require that every institution located in its territory draw up annual accounts
and annual reports taking into account each pension scheme operated by the
institution and, where applicable, annual accounts and annual reports for each
pension scheme. The annual accounts and annual reports, reflecting a true and
fair view of the institution's assets, liabilities and financial position,
taking into account each pension scheme operated by an institution, and duly
approved by an authorised person, are an essential source of information for
members and beneficiaries of a scheme and the competent authorities. In
particular, they enable the competent authorities to monitor the financial
soundness of an institution and assess whether the institution is able to meet
all its contractual obligations.
ê 2003/41/EC
recital 24
(43)     The investment policy of an
institution is a decisive factor for both security and affordability of
occupational pensions. The institutions should therefore draw up and, at least
every three years, review a statement of investment principles. It should be
made available to the competent authorities and on request also to members and
beneficiaries of each pension scheme.
ò new
(44)     Institutions
should be allowed to entrust their management, in whole or in part, to other
entities operating on their behalf. Institutions should remain fully
responsible for discharging all of their obligations under this Directive when
they outsource key functions or any other activities.
(45)     The
safe-keeping and oversight duties related to the assets of institutions should
be strengthened by clarifying the depositary’s roles and duties. Only
institutions operating schemes where members and beneficiaries bear all the
risks should be required to appoint a depositary.
ê 2003/41/EC
recital 23 (adapted)
Proper information
for members and beneficiaries of a pension scheme is crucial. This is of
particular relevance for requests for information concerning the financial
soundness of the institution, the contractual rules, the benefits and the
actual financing of accrued pension entitlements, the investment policy and the
management of risks and costs.
ò new
(46)     Institutions
should provide clear and adequate information to prospective members, members
and beneficiaries to support their decision-making about their retirement and
ensure a high level of transparency throughout the various phases of a scheme
comprising pre-enrolment, membership (including pre-retirement) and
post-retirement. In particular,  information concerning accrued pension
entitlements, projected levels of retirement benefits, risks and guarantees,
and costs should be given. Where members bear an investment risk, additional
information on the investment profile, any available options and past
performance are also crucial. 
(47)     Before
joining a scheme, prospective members should be given all the necessary
information to make an informed choice such as possibilities to opt out,
contributions, costs and investment options, where applicable.
(48)     For
the institution's members that have not yet retired, institutions should draw
up a standardised pension benefit statement containing key personal and generic
information about the pension scheme. The pension benefit statement should have
a standard format in order to facilitate the understanding of pension
entitlements over time and across schemes and serve labour mobility. 
(49)     Institutions
should inform members sufficiently in advance before retirement about their
pay-out options. Where the retirement benefit is not paid out as a lifetime
annuity, members that approach retirement should receive information about the
benefit payment products available, in order to faciliate financial planning
for retirement.
(50)     During
the phase when retirement benefits are paid, beneficiaries should continue to
receive  information on their benefits and corresponding payment options. This
is particularly important when a significant level of investment risk is borne
by beneficiaries in the pay-out phase.
(51)     The
competent authority should exercise its powers having as its prime objective the
protection of members and beneficiaries. 
(52)     The
scope of prudential supervision differs between Member States. This can cause
problems where  an institution needs to comply with the prudential regulation
of its home Member State whilst simultaneously comply with the social and
labour law of its host Member State. Clarifying which areas are considered to
be part of prudential supervision for the purpose of this Directive reduces
legal uncertainty and the associated transaction costs.
(53)     An
internal market for institutions requires mutual recognition of prudential
standards. The institution's adherence to those standards should be supervised
by the competent authorities of the institution’s home Member State. Member States should attribute to competent authorities the necessary powers to use
preventive or corrective measures if institutions breach any of the
requirements of this Directive. 
ê 2003/41/EC
recital 25 (adapted)
To fulfil their
statutory function, the competent authorities should be provided with adequate
rights to information and powers of intervention with respect to institutions
and the persons who effectively run them. Where an institution for occupational
retirement provision has transferred functions of material importance such as
investment management, information technology or accounting to other companies
(outsourcing), it should be possible for the rights to information and powers
of intervention to be enlarged so as to cover these outsourced functions in
order to check whether those activities are carried out in accordance with the
supervisory rules.
ò new
(54)     In
order to ensure effective supervision of outsourced activities, including all
subsequent re-outsourcing activities, it is essential that the competent
authorities have access to all relevant data held by the service providers to
whom activities have been outsourced, regardless of whether the latter is a
regulated or unregulated entity, and have the right to conduct on-site
inspections. In order to take account of market developments and to ensure continuous
compliance with the conditions for outsourcing, institutions should inform competent
authorities prior to the outsourcing of critical or important activities.
(55)     Provision
should be made for exchanges of information between the competent authorities,
other authorities and bodies tasked with strengthening of financial stability and
the termination of pension schemes. It is therefore necessary to specify the
conditions under which those exchanges of information should be possible.
Moreover, where information may be disclosed only with the express agreement of
the competent authorities, those authorities should be able, where appropriate,
to make their agreement subject to compliance with strict conditions.
(56)     Directive
95/46/EC of the European Parliament and of the Council[29] governs the processing of personal data
carried out in the Member States in the context of this Directive and under the
supervision of the competent authorities. Regulation (EC) No 45/2001 of the
European Parliament and of the Council[30], governs the processing of personal data
carried out by the European Supervisory Authorities pursuant to this Directive
and under the supervision of the European Data Protection Supervisor. Any
processing of personal data carried out within the framework of this Directive,
such as the exchange or transmission of personal data by the competent
authorities should be in accordance with national rules which implement
Directive 95/46/EC, and any exchange or transmission of information by the
European Supervisory Authorities should be in accordance with Regulation (EC)
No 45/2001.
(57)     In
order to ensure the smooth functioning of the internal market for occupational
retirement provision organised on a European scale, the Commission should,
after consulting EIOPA, review and report on the application of this Directive
and should submit that report to the European Parliament and to the Council
four years after the entry into force of this Directive. That review should
assess in particular the application of the rules regarding the calculation of
the technical provisions, the funding of technical provisions, regulatory own
funds, solvency margins, investment rules and any other aspect relating to the
financial solvency situation of the insitution.
(58)     In
order to ensure fair competition between institutions, the transitional period
allowing insurance undertakings subject to Directive 2009/138/EC of the
European Parliament and of the Council[31] to operate their
occupational-retirement-provision-business under the rules referred to in
Article 4 of Directive 2009/138/EC should be extended until 31 December 2022.
Directive 2009/138/EC should therefore be amended accordingly.
(59)     In
order to specify the requirements set out in this Directive, the power to adopt
acts in accordance with Article 290 TFEU should be delegated to the Commission
in respect of clarifying the remuneration policy, the risk evaluation for
pensions and the pension benefit statement. It is of particular importance that
the Commission carry out appropriate consultations during its preparatory work,
including at expert level. The Commission, when preparing and drawing up
delegated acts, should ensure a simultaneous, timely and appropriate
transmission of relevant documents to the European Parliament and to the
Council.
ê 2003/41/EC
recital 38 (adapted)
When a scheme is
ring-fenced, the provisions of this Directive apply individually to that
scheme.
ê 2003/41/EC
recital 39 (adapted)
It is important to
make provision for cooperation between the competent authorities of the Member
States for supervisory purposes and between those authorities and the
Commission for other purposes. For the purposes of carrying out their duties
and of contributing to the consistent and timely implementation of this
Directive, competent authorities should provide each other with the information
necessary to apply the provisions of the Directive. The Commission has
indicated its intention to set up a committee of supervisors in order to
encourage cooperation, coordination and exchanges of views between national
competent authorities, and to promote the consistent implementation of this
Directive.
ê 2003/41/EC
recital 40
(60)     Since the objective of the proposed action, namely to create a UnionCommunity legal framework covering institutions for occupational retirement
provision, cannot be sufficiently achieved by the Member States and can
therefore, by reason of the scale and effects of the action, be better achieved
by the UnionCommunity, the UnionCommunity may adopt measures, in accordance
with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of
proportionality as set out in that Article, this Directive does not go beyond
what is necessary in order to achieve that objective.
ò new
(61)     In
accordance with the Joint Political Declaration of Member States and the
Commission of 28 September 2011 on explanatory documents[32], Member States have undertaken to
accompany, in justified cases, the notification of their transposition measures
with one or more documents explaining the relationship between the components
of a directive and the corresponding parts of national transposition
instruments. With regard to this Directive, the legislator considers the transmission
of such documents to be justified.
(62)     The obligation to transpose this Directive into national law should be confined to
those provisions which represent a substantive amendment as compared with the
earlier Directives. The obligation to transpose the provisions which are
unchanged arises under the earlier Directives.
(63)     This Directive should be without prejudice to the
obligations of the Member States relating to the time-limits for transposition
into national law and application of the Directives set out in Annex I, Part B,
ê 2003/41/EC
HAVE ADOPTED THIS DIRECTIVE:
ò new
Title I
GENERAL
PROVISIONS
ê 2003/41/EC
(adapted)
Article 1
Subject Ö Subject
matter Õ
This Directive lays down rules for the
taking-up and pursuit of activities carried out by institutions for
occupational retirement provision.
Article 2
Scope
1. This Directive shall apply to
institutions for occupational retirement provision. Where, in accordance with national
law, institutions for occupational retirement provision do not have legal
personality, Member States shall apply this Directive either to those
institutions or, subject to paragraph 2, to those authorised entities
responsible for managing them and acting on their behalf.
2. This Directive shall not apply to:
ê 2003/41/EC
(adapted)
(a)
institutions managing social-security schemes which are covered by Regulations (EEC) No 1408/71[33]883/2004[34] and Regulation (EEC) No 574/72[35]987/2009 Ö of the European Parliament and of the Council Õ [36];
ê 2011/61/EU
Art. 62.1
              (b) institutions which are
covered by Directives 73/239/EEC[37], Directive 85/611/EEC[38], Directive 93/22/EEC[39], Directive 2000/12/EC[40] and Directive 2002/83/EC[41] 2004/39/EC[42],
2009/65/EC[43], 2009/138/EC,
2011/61/EU[44] and 2013/36/EU[45];
ê 2003/41/EC
              (c) institutions which operate
on a pay-as-you-go basis;
              (d) institutions where employees
of the sponsoring undertakings have no legal rights to benefits and where the
sponsoring undertaking can redeem the assets at any time and not necessarily
meet its obligations for payment of retirement benefits;
              (e) companies using book-reserve
schemes with a view to paying out retirement benefits to their employees.
Article 3
Application to institutions
operating social-security schemes
Institutions for occupational retirement
provision which also operate compulsory employment-related pension schemes
which are considered to be social-security schemes covered by Regulations (EEC)
No 1408/71 883/2004 and (EEC)
No 574/72 987/2009 shall be covered by
this Directive in respect of their non-compulsory occupational retirement
provision business. In that case, the liabilities and the corresponding assets
shall be ring-fenced and it shall not be possible to transfer them to the
compulsory pension schemes which are considered as social-security schemes or
vice versa.
Article 4
Optional application to
institutions covered by Directive 2002/83/EC 2009/138/EC
ê 2003/41/EC
(adapted)
Home Member States may choose to apply the
provisions of Articles 9 to16 and
Articles 18 to 20 Ö 9 to 15, Articles
20 to 24(2), Articles 25 to 29, Articles 31 to 53 and Articles 55 to 71 Õ of this
Directive to the occupational retirement provision business of Ö life Õ insurance
undertakings which are covered by Directive 2002/83/EC 2009/138/EC. In that case, all assets and liabilities corresponding to the said
business shall be ring-fenced, managed and organised separately from the other
activities of the Ö life Õ insurance
undertakings, without any possibility of transfer.
In such case, and only as far as their
occupational retirement provision business is concerned, Ö life Õinsurance
undertakings shall not be subject to Articles 20 to 26, 31 and 36 Ö 76 to 86,
Article 132, Article 134(2), Article 173, Article 185(5), Article 185(7) and
(8) and Article 209 Õ of Directive 2002/83/EC 2009/138/EC.
The home Member State shall ensure that
either the competent authorities, or the authorities responsible for
supervision of Ö life Õ insurance
undertakings covered by Directive 2002/83/EC 2009/138/EC, as part of their supervisory work, verify the strict separation of
the relevant occupational retirement provision business. 
Article 5
Small pension institutions and
statutory schemes
With the exception of Article 19 Ö Articles 34
to 37 Õ, Member States
may choose not to apply this Directive, in whole or in part, to any institution
located in their territories which operates pension schemes which together have
less than 100 members in total. Subject to Article 2(2), such institutions should Ö shall Õ nevertheless
be given the right to apply this Directive on a voluntary basis. Article 20 12 may be applied only if all the other
provisions of this Directive apply.
Member States may choose not to apply
Articles 9 to 17 Ö 1 to 8, Article
12, Article 20 and Articles 34 to 37 Õ to
institutions where occupational retirement provision is made under statute,
pursuant to legislation, and is guaranteed by a public authority. Article 20 12 may be applied only if all the other
provisions of this Directive apply. 
ê 2003/41/EC
Article 6
Definitions
For the purposes of this Directive:
              (a)‘institution for occupational
retirement provision’, or ‘institution’, means an institution, irrespective of
its legal form, operating on a funded basis, established separately from any
sponsoring undertaking or trade for the purpose of providing retirement
benefits in the context of an occupational activity on the basis of an
agreement or a contract agreed:
–              
individually or collectively between the
employer(s) and the employee(s) or their respective representatives, or
–              
with self-employed persons, in compliance with
the legislation of the home and host Member States,
              and which carries out activities
directly arising therefrom;
              (b)‘pension scheme’ means a
contract, an agreement, a trust deed or rules stipulating which retirement
benefits are granted and under which conditions;
ê 2003/41/EC
(adapted)
ð new
              (c)‘sponsoring undertaking’
means any undertaking or other body, regardless of whether it includes or
consists of one or more legal or natural persons, acts as an employer or in a self-employed capacity or any
combination thereof and which pays contributions into an institution for
occupational retirement provision ð which under national legislation is
legally obliged or voluntarily commits to offering a pension scheme; ï
ê 2003/41/EC
              (d)‘retirement benefits’ means
benefits paid by reference to reaching, or the expectation of reaching,
retirement or, where they are supplementary to those benefits and provided on
an ancillary basis, in the form of payments on death, disability, or cessation
of employment or in the form of support payments or services in case of
sickness, indigence or death. In order to facilitate financial security in
retirement, these benefits usually take the form of payments for life. They
may, however, also be payments made for a temporary period or as a lump sum.
              (e) ‘member’ means a person
whose occupational activities entitle or will entitle him/her to retirement
benefits in accordance with the provisions of a pension scheme;
              (f) ‘beneficiary’ means a person
receiving retirement benefits;
              (g) ‘competent authorities’
means the national authorities designated to carry out the duties provided for
in this Directive;
              (h) ‘biometrical risks’ mean
risks linked to death, disability and longevity;
ê 2003/41/EC
(adapted)
ð new
              (i) ‘home Member State’ means the Member State ð in which the institution has been
authorised or registered and in which its main administration is located. The
place of main administration refers to a place where the main strategic
decisions of the institution’s decision making body are made; ï in which the
institution has its registered office and its main administration or, if it
does not have a registered office, its main administration;
ê 2003/41/EC
(adapted)
ð new
              (j) ‘host Member State’ means the Member State whose social and labour law relevant to the field of occupational
pension schemes is applicable to the relationship between the sponsoring
undertaking and members ð or beneficiaries ï;.
ò new
(k) ‘transferring institution’ means an institution transferring all or
a part of a pension scheme to an institution in another Member State;
(l) ‘receiving institution’ means an institution receiving all or a
part of a pension scheme from an institution in another Member State;
(m) 'regulated market' means a multilateral system in the Union within the meaning of Article 2(1)(5) of Regulation (EU) No …/… [MiFIR];
(n) 'multilateral trading facility' means a multilateral system in the Union within the meaning of Article 2(1)(6) of Regulation (EU) No …/… [MiFIR];
(o) 'organised trading facility' means a system or facility in the Union referred to in Article 2(1)(7) of Regulation (EU) No …/… [MiFIR];
(p) 'durable medium' means an instrument which enables a member or a
beneficiary to store information addressed personally to that member or
beneficiary in a way that is accessible for future reference for a period of
time adequate for the purposes of the information and which allows the
unchanged reproduction of the information stored;
(q) 'key function', within a system of governance, means an internal
capacity to undertake practical tasks; a system of governance includes the risk
management function, the internal audit function, and where the institution
enters into financial commitments or establishes technical provisions, also the
actuarial function.
ê 2003/41/EC
(adapted)
ð new
Article 7
Activities of an institution
Each Member States shall require
institutions located within its territorytheir territories to limit their
activities to retirement-benefit related operations and activities arising
therefrom.
When, in accordance with Article 4, an Ö life Õ insurance
undertaking manages its occupational retirement provision business by ring-fencing
its assets and liabilities, the ring-fenced assets and liabilities shall be
restricted to retirement-benefit related operations and activities directly arising
therefrom.
Article 8
Legal separation between sponsoring
undertakings and institutions for occupational retirement provision
Each Member States shall ensure
that there is a legal separation between a sponsoring undertaking and an
institution for occupational retirement provision in order that the assets of
the institution are safeguarded in the interests of members and beneficiaries
in the event of bankruptcy of the sponsoring undertaking.
Article 9
Conditions of operation ð Registration or authorisation ï
1. Each Member States shall, in
respect of every institution located in its territory their territories, ensure that:
ê 2010/78/EU Art.
4.1(a)  (adapted)
              (a)
the institution is registered in a national register by the competent authority
or authorised Ö by it Õ ; in the case
of cross-border activities referred to in Article 1220, the register shall also indicate
the Member States in which the institution is operating; that information shall
be communicated to the European Supervisory Authority (European
Insurance and Occupational Pensions Authority (hereinafter ‘EIOPA’),
established by Regulation (EU) No 1094/2010 of the European Parliament and of
the Council [46]
which shall publish it on its website;.
ê 2003/41/EC
 (adapted)
              (b) the institution is effectively run by persons of good repute who
must themselves have appropriate professional qualifications and experience or
employ advisers with appropriate professional qualifications and experience ;
ò new
Article 10
Pension scheme rules
ê 2003/41/EC
(c) Member States shall, in respect of
every institution located in their territories, ensure that properly constituted rules regarding the functioning of any pension
scheme operated by the institution have been implemented and members have been
adequately informed of these rules;.
ê 2003/41/EC
(adapted)
(d) all technical provisions are computed and certified by an
actuary or, if not by an actuary, by another specialist in this field,
including an auditor, according to national legislation, on the basis of
actuarial methods recognised by the competent authorities of the home Member
State;
ò new
Article 11
Commitment of regular financing and additional
benefits
ê 2003/41/EC
(e)1. Member States shall, in respect of
every institution located in their territories, ensure that where the sponsoring undertaking guarantees the payment of the
retirement benefits, it is committed to regular financing;.
ê 2003/41/EC
(adapted)
(f) the members are
sufficiently informed of the conditions of the pension scheme, in particular
concerning:
            (i) the rights and obligations of the parties
involved in the pension scheme;
            (ii) the financial, technical and other risks
associated with the pension scheme;
            (iii) the nature and distribution of those
risks.
ê 2003/41/EC
2. In accordance with the principle of
subsidiarity and taking due account of the scale of pension benefits offered by
the social-security regimes, Member States may provide that the option of
longevity and disability cover, provision for surviving dependants and a
guarantee of repayment of contributions as additional benefits be offered to
members if employers and employees, or their respective representatives, so
agree.
ê 2003/41/EC
(adapted)
3. Member States may
make the conditions of operation of institutions located subject to other
requirements, with a view to ensuring that the interests of members and
beneficiaries are adequately protected. 
ê 2010/78/EU Art.
4.1(a) (adapted)
5. In the case of
cross-border activity as referred to in Article 20, the conditions of operation
of the institution shall be subject to a prior authorisation by the competent
authorities of the home Member State. When giving such authorisation, Member
States shall immediately inform EIOPA.
ê 2003/41/EC
(adapted)
ð new
Article 2012
Cross-border activities ð and procedures ï
1. Without prejudice to national social and
labour law on the organisation of pension systems, including compulsory
membership and the outcomes of collective bargaining agreements, Member States
shall allow undertakings located within their territories to sponsor
institutions ð which propose to or carry out
cross-border activity ï for
occupational retirement provision authorised in other Member States.
They shall also allow institutions Ö authorised
in their territories Õ for occupational retirement provision
authorised in their territories ð to carry out cross-border
activity ïto accept Ö by
accepting Õ sponsorship by
undertakings located within the territories of other ð any ï Member States.
2. An institution Ö proposing Õ wishing ð to carry out cross-border activity andï to accept sponsorship from a sponsoring undertaking located within the territory of another Member State shall be subject to a prior authorisation by the
competent authorities of its home Member State, as referred to in Article 9(5). It
shall notify its intention to accept sponsorship from a sponsoring undertaking located within the
territory of another Member State to the competent authorities of
the home Member State where it is authorised.
3. Member States shall require institutions
ð authorised or registered in ï located
within their territories and proposing to be sponsored Ö receive
sponsorship Õ by an undertaking
located in the territory of another Member State to provide the
following information when effecting a notification under paragraph 2:
(a)                   
the host Member State(s);
(b)                   
the name ð and the location of the
administration ï of the sponsoring undertaking;
(c)                   
the main characteristics of the pension scheme
to be operated for the sponsoring undertaking.
ê 2003/41/EC
(adapted)
ð new
4. Where a competent authority of the home
Member State is notified under paragraph 2, and unless it has reason to doubt
ð it has issued a decision ï that the administrative structure or the financial situation of the
institution or the good repute or professional qualifications or experience of
the persons running the institution are ð not ï compatible with the Ö proposed Õ operations proposed in the host
Member State, it shall within three months of receiving all the
information referred to in paragraph 3 communicate that information to the
competent authorities of the host Member State and inform the institution
accordingly. 
ò new
The decision
referred to in the first subparagraph shall be reasoned.
Where the
competent authority of the home Member State refuses to communicate the
information referred in the first subparagraph to the competent authorities of
the host Member State, it shall give the reasons for its refusal to the
institution concerned within three months of receiving all the information
referred to in paragraph 3. That refusal or a failure to act shall be subject
to a right to apply to the courts in the home Member State.
ê 2003/41/EC
(adapted)
ð new
5. Before the institution starts to operate Ö carry out
a cross-border activity Õ a pension scheme for a sponsoring undertaking
in another Member State, the competent
authorities of the host Member State shall, within two ð one ï months of receiving the information referred to in paragraph 3, inform the
competent authorities of the home Member State, if appropriate, of the requirements
of social and labour law relevant to the field of occupational pensions under
which the pension scheme sponsored by an undertaking in the host Member State
must be operated and any rules
that are to be applied in accordance with Article 18(7) and with paragraph 7 of
this Article. The competent authorities of the
home Member State shall communicate this information to the institution.
6. On receiving the communication referred
to in paragraph 5, or if no communication is received from the competent
authorities of the home Member State on expiry of the period provided for in
paragraph 5, the institution may start to Ö carry out
a cross-border activity Õ operate the pension scheme sponsored by an
undertaking in the host Member State in
accordance with the host Member State's requirements of social and labour law
relevant to the field of occupational pensions, and any rules that are to be applied in accordance with Article
18(7) and with paragraph 7 of this Article.
ê 2003/41/EC
(adapted)
7. In particular, an
institution sponsored by an undertaking located in another Member State shall
also be subject, in respect of the corresponding members, to any information
requirements imposed by the competent authorities of the host Member State on
institutions located in that Member State, in accordance with Article 11.
ê 2003/41/EC
ð new
87. The
competent authorities of the host Member State shall inform the competent
authorities of the home Member State of any significant change in the host
Member State's requirements of social and labour law relevant to the field of
occupational pension schemes which may affect the characteristics of the
pension scheme insofar as it concerns the ð cross-border activity ï operation
of the pension scheme sponsored by an undertaking in the host Member State and
in any rules that have to be applied in accordance with Article 18(7) and with
paragraph 7 of this Article.
98. The
institution shall be subject to on-going supervision by the competent
authorities of the host Member State as to the compliance of its activities
with the host Member State's requirements of labour and social law relevant to
the field of occupational pension schemes referred to in paragraph 5. and with the information
requirements referred to in paragraph 7 Should this supervision
bring irregularities to light, the competent authorities of the host Member
State shall inform the competent authorities of the home Member State
immediately. The competent authorities of the home Member State shall, in
coordination with the competent authorities of the host Member State, take the necessary measures to ensure that the institution puts a stop to the detected
breach of social and labour law.
ê 2003/41/EC
109. If,
despite the measures taken by the competent authorities of the home Member
State or because appropriate measures are lacking in the home Member State, the
institution persists in breaching the applicable provisions of the host Member
State's requirements of social and labour law relevant to the field of
occupational pension schemes, the competent authorities of the host Member
State may, after informing the competent authorities of the home Member State,
take appropriate measures to prevent or penalise further irregularities,
including, insofar as is strictly necessary, preventing the institution from
operating in the host Member State for the sponsoring undertaking.
ò new
10. Member States
shall ensure that an institution carrying out cross-border activity shall not
be subject to any requirements concerning information to members and
beneficiaries imposed by the competent authorities of the host Member State in respect of the members which that cross-border activity concerns.
Article 13
Cross-border transfers of pension schemes
1. Member States
shall allow institutions authorised or registered in their territories to
transfer all or a part of their pension schemes to receiving institutions
authorised or registered in other Member States. 
2. The transfer
of all or part of a pension scheme between transferring and receiving
institutions authorised or registered in different Member States shall be subject
to prior authorisation by the competent authority of the home Member State of the receiving institution. The application for authorisation of the transfer
shall be submitted by the receiving institution.
3. Unless national
social and labour law on the organisation of pension systems provides
otherwise, the transfer and its conditions shall be made subject to prior
approval by the members and beneficiaries concerned or, where applicable, their
representatives. In any event, information on the conditions of the transfer
shall be made available to the members and beneficiaries concerned or, where
applicable, their representatives at least four months before the application referred
to in paragraph 2 is submitted.
4. The
application referred to in paragraph 2 shall contain the following information:
a) the written agreement between the transferring and
the receiving institutions setting out the conditions of the transfer,
including the main characteristics of the pension scheme and the description of
the transferred assets and, where applicable, the corresponding liabilities;
b) the name and the seat of the transferring
institution;
c) the location of the administration of the
sponsoring undertaking and the name of the sponsoring undertaking;
d) the host Member State or the host Member States,
if there are more than one.
5. Where a
competent authority of the home Member State of the receiving institution receives
the application referred to in paragraph 2, and it has not issued a decision stating
that the administrative structure or the financial situation of the receiving
institution, or the good repute or the professional qualifications or
experience of the persons running the receiving institutionare are not
compatible with the operations proposed in the home Member State of the
receiving institution, it shall within three months of receiving all the
information referred to in paragraph 4 communicate its decision authorising the
transfer to the receiving institution and to the competent authority of the
home Member State of the transferring institution. The competent authority of
the home Member State of the transferring institution shall inform the
transferring institution of that decision.
The decisions
referred to in the first subparagraph shall be reasoned. Where the competent
authority of the home Member State of the receiving institution refuses to
communicate the information referred to in the first subparagraph to the
competent authorities of the home Member State of the transferring institution,
it shall give reasons for its refusal to the institution concerned within three
months of receiving all the information referred to in paragraph 4. That
refusal or a failure to act shall be subject to a right of the receiving
institution to apply to the courts in the home Member State of the receiving
institution.
6. The competent
authority of the home Member State of the transferring institution shall,
within one month of receiving the information referred to in paragraph 5,
inform the competent authority of the home Member State of the receiving
institution of the requirements of social and labour law relevant to the field
of occupational pensions of the host Member State under which the pension
scheme must be operated. The competent authority of the home Member State of the receiving institution shall communicate this information to the receiving
institution.
7. Upon receiving
the communication referred to in paragraph 6, or if no communication is
received from the competent authority of the home Member State of the receiving
institution on expiry of the period laid down in paragraph 6, the receiving
institution may start to operate the pension scheme in accordance with the
requirements of social and labour law relevant to the field of occupational
pensions of the host Member State.
8. Where the
receiving institution carries out a cross-border activity, Article 12(8) and
(9) shall apply.
Title II
QUANTITATIVE REQUIREMENTS
ê 2003/41/EC 
Article 15 14
Technical provisions
1. The home Member State shall ensure that
institutions operating occupational pension schemes establish at all times in
respect of the total range of their pension schemes an adequate amount of liabilities
corresponding to the financial commitments which arise out of their portfolio
of existing pension contracts.
2. The home Member State shall ensure that
institutions operating occupational pension schemes, where they provide cover against
biometric risks and/or guarantee either an investment performance or a given level of
benefits, establish sufficient technical provisions in respect of the total
range of these schemes.
3. The calculation of technical provisions
shall take place every year. However, the home Member State may allow a
calculation once every three years if the institution provides members and/or
the competent authorities with a certification or a report of adjustments for
the intervening years. The certification or the report shall reflect the
adjusted development of the technical provisions and changes in risks covered.
4. The calculation of the technical
provisions shall be executed and certified by an actuary or, if not by an actuary, by another specialist in this field, including an auditor,
according to national legislation, on the basis of actuarial methods recognised
by the competent authorities of the home Member State, according to the
following principles:
              (a) the minimum amount of the
technical provisions shall be calculated by a sufficiently prudent actuarial
valuation, taking account of all commitments for benefits and for contributions
in accordance with the pension arrangements of the institution. It must be
sufficient both for pensions and benefits already in payment to beneficiaries
to continue to be paid, and to reflect the commitments which arise out of
members' accrued pension rights. The economic and actuarial assumptions chosen
for the valuation of the liabilities shall also be chosen prudently taking
account, if applicable, of an appropriate margin for adverse deviation;
              (b) the maximum rates of interest
used shall be chosen prudently and determined in accordance with any relevant
rules of the home Member State. These prudent rates of interest shall be
determined by taking into account:
(i) the yield on the
corresponding assets held by the institution and the future investment returns
and/or
(ii) the market yields of high-quality or
government bonds;
              (c) the biometric tables used
for the calculation of technical provisions shall be based on prudent
principles, having regard to the main characteristics of the group of members
and the pension schemes, in particular the expected changes in the relevant
risks;
              (d) the method and basis of
calculation of technical provisions shall in general remain constant from one
financial year to another. However, discontinuities may be justified by a
change of legal, demographic or economic circumstances underlying the
assumptions.
5. The home Member State may make the
calculation of technical provisions subject to additional and more detailed
requirements, with a view to ensuring that the interests of members and
beneficiaries are adequately protected.
2010/78/EU Art. 4.4
6. With a view
to further harmonisation of the rules regarding the calculation of technical
provisions which may be justified – in particular the interest rates and other
assumptions influencing the level of technical provisions – the Commission,
drawing on advice from EIOPA, shall, every 2 years or at the request of a
Member State, issue a report on the situation concerning the development in
cross-border activities.
ê 2003/41/EC
The Commission shall propose any
necessary measures to prevent possible distortions caused by different levels
of interest rates and to protect the interest of beneficiaries and members of
any scheme.
ê 2003/41/EC
(adapted)
Article 16 15
Funding of technical provisions
1. The home Member State shall require
every institution to have at all times sufficient and appropriate assets to
cover the technical provisions in respect of the total range of pension schemes
operated.
2. The home Member State may allow an
institution, for a limited period of time, to have insufficient assets to cover
the technical provisions. In this case the competent authorities shall require
the institution to adopt a concrete and realisable recovery plan in order to
ensure that the requirements of paragraph 1 are met again. The plan shall be
subject to the following conditions:
              (a) the institution shall set up
a concrete and realisable plan to re-establish the required amount of assets to
cover fully the technical provisions in due time. The plan shall be made
available to members or, where applicable, to their representatives and/or
shall be subject to approval by the competent authorities of the home Member State;
              (b) in drawing up the plan,
account shall be taken of the specific situation of the institution, in
particular the asset/liability structure, risk profile, liquidity plan, the age
profile of the members entitled to receive retirement benefits, start-up
schemes and schemes changing from non-funding or partial funding to full
funding;
              (c) in the event of termination
of a pension scheme during the period referred to above in Ö in the
first sentence of Õ this
paragraph, the institution shall inform the competent authorities of the home Member State. The institution shall establish a procedure in order to transfer the assets
and the corresponding liabilities to another financial institution or a similar
body. This procedure shall be disclosed to the competent authorities of the
home Member State and a general outline of the procedure shall be made
available to members or, where applicable, to their representatives in
accordance with the principle of confidentiality.
3. In the event of cross-border activity as
referred to in Article 1220,
the technical provisions shall at all times be fully funded in respect of the
total range of pension schemes operated. If these conditions are not met, the
competent authorities of the home Member State shall intervene in accordance
with Article 6214.
To comply with this requirement the home Member State may require ring-fencing
of the assets and liabilities.
Article 17 16
Regulatory own funds
1. The home Member State shall ensure that
institutions operating pension schemes, where the institution itself, and not
the sponsoring undertaking, underwrites the liability to cover against
biometric risk, or guarantees a given investment performance or a given level
of benefits, hold on a permanent basis additional assets above the technical
provisions to serve as a buffer. The amount thereof shall reflect the type of
risk and asset base in respect of the total range of schemes operated. These
assets shall be free of all foreseeable liabilities and serve as a safety capital
to absorb discrepancies between the anticipated and the actual expenses and
profits.
ê 2009/138/EC
Art. 303.1 (adapted)
2. For the purposes of calculating the
minimum amount of additional assets, the rules laid down in Articles 17a to 17d17, 18 and 19 shall apply.
2003/41/EC
3. Paragraph 1 shall, however, not prevent
Member States from requiring institutions located in their territory to hold
regulatory own funds or from laying down more detailed rules provided that they
are prudentially justified.
ê 2009/138/EC
Art. 303.2 (adapted)
Article 17a 17
Available solvency margin
1. Each Member States shall require of every institution referred
to in Article 17 16(1) which are is located in their territories its territory an adequate available solvency margin in respect of its entire
business at all times which is at least equal to the requirements in this
Directive.
2. The available solvency margin shall
consist of the assets of the institution free of any foreseeable liabilities, less
any intangible items, including:
              (a) the paid-up share capital
or, in the case of an institution taking the form of a mutual undertaking, the
effective initial fund plus any accounts of the members of the mutual
undertaking which fulfil the following criteria:
         (i) the memorandum and articles of
association must stipulate that payments may be made from those accounts to
members of the mutual undertaking only in so far as this does not cause the
available solvency margin to fall below the required level or, after the
dissolution of the undertaking, where all the undertaking's other debts have
been settled;
         (ii) the memorandum and articles of
association must stipulate, with respect to any payments referred to in
point (i) for reasons other than the individual termination of membership
in the mutual undertaking, that the competent authorities must be notified at
least one month in advance and can prohibit the payment within that period; and
         (iii) the relevant provisions of the
memorandum and articles of association may be amended only after the competent
authorities have declared that they have no objection to the amendment, without
prejudice to the criteria stated in points (i) and (ii);
              (b) reserves (statutory
and free) not corresponding to underwriting liabilities;
              (c) the profit or loss brought
forward after deduction of dividends to be paid; and
              (d) in so far as authorised
under national law, profit reserves appearing in the balance sheet where they
may be used to cover any losses which may arise and where they have not been
made available for distribution to members and beneficiaries.
The available solvency margin shall be
reduced by the amount of own shares directly held by the institution.
3. Member States may provide that the
available solvency margin may also comprise:
              (a) cumulative preferential
share capital and subordinated loan capital up to 50 % of the lesser
of the available solvency margin and the required solvency margin, no more than
25 % of which shall consist of subordinated loans with a fixed maturity,
or fixed-term cumulative preferential share capital, provided that binding
agreements exist under which, in the event of the bankruptcy or liquidation of
the institution, the subordinated loan capital or preferential share capital ranks
after the claims of all other creditors and is not to be repaid until all other
debts outstanding at the time have been settled;
              (b) securities with no specified
maturity date and other instruments, including cumulative preferential shares
other than those referred to in point (a), to a maximum of 50 % of
the available solvency margin, or the required solvency margin, whichever the
lesser, for the total of such securities, and the subordinated loan capital
referred to in point (a) provided they fulfil the following conditions:
         (i) they must not be repaid on the
initiative of the bearer or without the prior consent of the competent
authority;
         (ii) the contract of issue must
enable the institution to defer the payment of interest on the loan;
         (iii) the lender’s claims on the
institution must rank entirely after those of all non-subordinated creditors;
         (iv) the documents governing the
issue of the securities must provide for the loss-absorption capacity of the
debt and unpaid interest, while enabling the institution to continue its
business; and
         (v) only fully paid-up amounts must
be taken into account.
              For the purposes of
point (a), subordinated loan capital shall also fulfil the following
conditions:
         (i) only fully paid-up funds shall be
taken into account;
         (ii) for loans with a fixed maturity,
the original maturity shall be at least five years. No later than one year
before the repayment date, the institution shall submit to the competent
authorities for their approval a plan showing how the available solvency margin
will be kept at or brought to the required level at maturity, unless the extent
to which the loan may rank as a component of the available solvency margin is
gradually reduced during at least the five years before the repayment date. The
competent authorities may authorise the early repayment of such loans provided
application is made by the issuing institution and its available solvency
margin will not fall below the required level;
         (iii) loans the maturity of which is
not fixed shall be repayable only subject to five years’ notice unless the
loans are no longer considered as a component of the available solvency margin
or unless the prior consent of the competent authorities is specifically
required for early repayment. In the latter event the institution shall notify
the competent authorities at least six months before the date of the proposed
repayment, specifying the available solvency margin and the required solvency
margin both before and after that repayment. The competent authorities shall
authorise repayment only where the institution’s available solvency margin will
not fall below the required level;
         (iv) the loan agreement shall not
include any clause providing that in specified circumstances, other than the
winding-up of the institution, the debt will become repayable before the agreed
repayment dates; and
         (v) the loan agreement may be amended
only after the competent authorities have declared that they have no objection
to the amendment.
4. Upon application, with supporting evidence,
by the institution to the competent authority of the home Member State and with the agreement of that competent authority, the available solvency margin may
also comprise:
              (a) where Zillmerising is not
practised or where, if practised, it is less than the loading for acquisition
costs included in the premium, the difference between a non-Zillmerised or
partially Zillmerised mathematical provision and a mathematical provision
Zillmerised at a rate equal to the loading for acquisition costs included in
the premium;
              (b) any hidden net reserves
arising out of the valuation of assets, in so far as such hidden net reserves
are not of an exceptional nature;
              (c) one half of the unpaid share
capital or initial fund, once the paid-up part amounts to 25 % of
that share capital or fund, up to 50 % of the available or required
solvency margin, whichever is the lesser.
The figure referred to in point (a)
shall not exceed 3,5 % of the sum of the differences between the relevant
capital sums of life assurance and occupational retirement provision activities
and the mathematical provisions for all policies for which Zillmerising is
possible. The difference shall be reduced by the amount of any undepreciated
acquisition costs entered as an asset.
ê 2003/41/EC
(adapted)
5. The Commission may adopt implementing
measures relating to paragraphs 2 to 4 in order to take account of
developments that justify a technical adjustment of the elements eligible for
the available solvency margin.
Those measures, designed to amend
non-essential elements of this Directive by supplementing it, shall be adopted
in accordance with the regulatory procedure with
scrutiny referred to in Article 21b.
ê 2009/138/EC
Art. 303.2 (adapted)
Article 17b 18
Required solvency margin
1. Subject to Article 17c, Tthe required solvency margin shall be
determined as laid down in paragraphs 2 to 6 according to the liabilities
underwritten.
2. The required solvency margin shall be
equal to the sum of the following results:
              (a) the first result:
              a 4 % fraction of the
mathematical provisions relating to direct business and reinsurance acceptances
gross of reinsurance cessions shall be multiplied by the ratio, which shall not
be less than 85 %, for the previous financial year, of the mathematical
provisions net of reinsurance cessions to the gross total mathematical
provisions;
              (b) the second result:
              for policies on which the
capital at risk is not a negative figure, a 0,3 % fraction of such capital
underwritten by the institution shall be multiplied by the ratio, which shall
not be less than 50 %, for the previous financial year, of the total
capital at risk retained as the institution’s liability after reinsurance
cessions and retrocessions to the total capital at risk gross of reinsurance.
              For temporary assurances on
death of a maximum term of three years, that fraction shall be 0,1 %. For
such assurance of a term of more than three years but not more than five years,
that fraction shall be 0,15 %.
3. For supplementary insurances referred to
in Article 2(3)(a)(iii) of Directive 2009/138/EC of the European Parliament and of the
Council of 25 November 2009 on the taking-up and pursuit of the business
of Insurance and Reinsurance (Solvency II)
the required solvency margin shall be equal to the required solvency margin for
institutions as laid down in Article 17d 19.
4. For capital redemption operations
referred to in Article 2(3)(b)(ii) of Directive 2009/138/EC, the required
solvency margin shall be equal to a 4 % fraction of the mathematical
provisions calculated in compliance with paragraph 2(a).
5. For operations referred to in
Article 2(3)(b)(i) of Directive 2009/138/EC, the required solvency margin
shall be equal to 1 % of their assets.
6. For assurances covered by
Article 2(3)(a)(i) and (ii) of Directive 2009/138/EC linked to
investment funds and for the operations referred to in
Article 2(3)(b)(iii), (iv) and (v) of Directive 2009/138/EC, the
required solvency margin shall be equal to the sum of the following:
              (a) in so far as the institution
bears an investment risk, a 4 % fraction of the technical provisions,
calculated in compliance with paragraph 2(a);
              (b) in so far as the institution
bears no investment risk but the allocation to cover management expenses is
fixed for a period exceeding five years, a 1 % fraction of the technical
provisions, calculated in compliance with paragraph 2(a);
              (c) in so far as the institution
bears no investment risk and the allocation to cover management expenses is not
fixed for a period exceeding five years, an amount equivalent to 25 %
of the net administrative expenses of the previous financial year pertaining to
such business;
              (d) in so far as the institution
covers a death risk, a 0,3 % fraction of the capital at risk calculated in
compliance with paragraph 2(b).
2009/138/EC Art. 303.2
Article 17c
Guarantee fund
1. Member States may provide that one third of the required solvency
margin as specified in Article 17b shall constitute the guarantee fund.
That fund shall comprise the items listed in Article 17a(2) and (3)
and, subject to the agreement of the competent authority of the home Member State, in Article 17a(4)(b).
2. The guarantee fund shall not be less than EUR 3 million.
Any Member State may provide for a 25 % reduction of the minimum guarantee
fund in the case of mutual and mutual-type undertakings.
2009/138/EC Art. 303.2 (adapted)
Article 17d 19
Required solvency margin for the
purpose of Article 17b18(3)
1. The required solvency margin shall be
determined on the basis either of the annual amount of premiums or
contributions, or of the average burden of claims for the past three financial
years.
2. The amount of the required solvency
margin shall be equal to the higher of the two results as set out in
paragraphs 3 and 4.
3. The premium basis shall be calculated
using the higher of gross written premiums or contributions as calculated
below, and gross earned premiums or contributions.
The premiums or contributions (inclusive of
charges ancillary to premiums or contributions) due in respect of direct
business in the previous financial year shall be aggregated.
To that sum there shall be added the amount
of premiums accepted for all reinsurance in the previous financial year.
From that sum there shall then be deducted
the total amount of premiums or contributions cancelled in the previous
financial year, as well as the total amount of taxes and levies pertaining to
the premiums or contributions entering into the aggregate.
The amount so obtained shall be divided
into two portions, the first extending up to EUR 50 million, the
second comprising the excess; 18 % of the first portion and 16 %
of the second shall be added together.
The sum so obtained shall be multiplied by
the ratio existing in respect of the sum of the previous three financial years
between the amount of claims remaining to be borne by the institution after
deduction of amounts recoverable under reinsurance and the gross amount of
claims. That ratio shall be no less than 50 %.
4. The claims basis shall be calculated, as
follows:
The amounts of claims paid in respect of
direct business (without any deduction of claims borne by reinsurers
and retrocessionaires) in the periods specified in paragraph 1 shall
be aggregated.
To that sum there shall be added the amount
of claims paid in respect of reinsurances or retrocessions accepted during the
same periods and the amount of provisions for claims outstanding established at
the end of the previous financial year both for direct business and for
reinsurance acceptances.
From that sum there shall be deducted the
amount of recoveries effected during the periods specified in paragraph 1.
From the sum then remaining, there shall be
deducted the amount of provisions for claims outstanding established at the
commencement of the second financial year preceding the last financial year for
which there are accounts, both for direct business and for reinsurance
acceptances.
One third of the amount so obtained shall
be divided into two portions, the first extending up to
EUR 35 million and the second comprising the excess; 26 % of the
first portion and 23 % of the second, shall be added together.
The sum so obtained shall be multiplied by
the ratio existing in respect of the sum of the previous three financial years
between the amount of claims remaining to be borne by the institution after
deduction of amounts recoverable under reinsurance and the gross amount of
claims. That ratio shall be no less than 50 %.
5. Where the required solvency margin as
calculated in paragraphs 2 to 4 is lower than the required solvency
margin of the preceding year, the required solvency margin shall be at least
equal to the required solvency margin of the preceding year, multiplied by the
ratio of the amount of the technical provisions for claims outstanding at the end
of the previous financial year and the amount of the technical provisions for
claims outstanding at the beginning of the previous financial year. In those
calculations technical provisions shall be calculated net of reinsurance but
the ratio may be no higher than 1.
2003/41/EC 
Article 18 20
Investment rules
1. Member States shall require institutions
located in their territories to invest in accordance with the ‘prudent person’
rule and in particular in accordance with the following rules:
              (a) the assets shall be invested
in the best interests of members and beneficiaries. In the case of a potential
conflict of interest, the institution, or the entity which manages its
portfolio, shall ensure that the investment is made in the sole interest of
members and beneficiaries;
              (b) the assets shall be invested
in such a manner as to ensure the security, quality, liquidity and
profitability of the portfolio as a whole.
              Assets held to cover the
technical provisions shall also be invested in a manner appropriate to the
nature and duration of the expected future retirement benefits;
              (c) the assets shall be
predominantly invested on regulated markets. Investment in assets which are not
admitted to trading on a regulated financial market must in any event be kept
to prudent levels;
              (d) investment in derivative
instruments shall be possible insofar as they contribute to a reduction of
investment risks or facilitate efficient portfolio management. They must be
valued on a prudent basis, taking into account the underlying asset, and
included in the valuation of the institution's assets. The institution shall
also avoid excessive risk exposure to a single counterparty and to other
derivative operations;
              (e) the assets shall be properly
diversified in such a way as to avoid excessive reliance on any particular
asset, issuer or group of undertakings and accumulations of risk in the
portfolio as a whole. 
              Investments in assets issued by
the same issuer or by issuers belonging to the same group shall not expose the
institution to excessive risk concentration;
              (f) investment in the sponsoring
undertaking shall be no more than 5 % of the portfolio as a whole and,
when the sponsoring undertaking belongs to a group, investment in the
undertakings belonging to the same group as the sponsoring undertaking shall
not be more than 10 % of the portfolio.
              When the institution is
sponsored by a number of undertakings, investment in these sponsoring
undertakings shall be made prudently, taking into account the need for proper
diversification.
Member States may decide not to apply the
requirements referred to in points (e) and (f) to investment in government
bonds.
ê 2013/14/EU
Art. 1
1a2.
Taking into account the nature, scale and complexity of the activities of the
institutions supervised, Member States shall ensure that the competent
authorities monitor the adequacy of the institutions’ credit assessment
processes, assess the use of references to credit ratings issued by credit
rating agencies as defined in Article 3(1)(b) of Regulation (EC) No 1060/2009
of the European Parliament and of the Council of 16 September 2009 on credit
rating agencies[47], in their investment policies and, where appropriate, encourage
mitigation of the impact of such references, with a view to reducing sole and
mechanistic reliance on such credit ratings.
2003/41/EC (adapted)
23. The
home Member State shall prohibit the institution from borrowing or acting as a
guarantor on behalf of third parties. However, Member States may authorise
institutions to carry out some borrowing only for liquidity purposes and on a
temporary basis.
34.
Member States shall not require institutions located in their territory to
invest in particular categories of assets.
45.
Without prejudice to Article 12 32,
Member States shall not subject the investment decisions of an institution
located in their territory or its investment manager to any kind of prior
approval or systematic notification requirements.
ê 2003/41/EC
 (adapted)
ð new
56. In
accordance with the provisions of paragraphs 1 to 45,
Member States may, for the institutions located in their territories, lay down
more detailed rules, including quantitative rules, provided they are
prudentially justified, to reflect the total range of pension schemes operated
by these institutions.
In particular, Member States may apply investment provisions similar to
those of Directive 2002/83/EC.
However, Member States shall not prevent
institutions from:
              (a) investing up to 70 % of
the assets covering the technical provisions or of the whole portfolio for
schemes in which the members bear the investment risks in shares, negotiable
securities treated as shares and corporate bonds admitted to trading on
regulated markets, ð or through multilateral trading facilities
or organised trading facilities, ï and deciding on the relative weight of these securities in their
investment portfolio. Provided it is prudentially justified, Member States may, however,
apply a lower limit to institutions which provide retirement products with a
long-term interest rate guarantee, bear the investment risk and themselves
provide for the guarantee;
              (b) investing up to 30 % of the
assets covering technical provisions in assets denominated in currencies other
than those in which the liabilities are expressed;
(c) investing in risk capital markets
ð instruments that have a long-term
economic profile and are not traded on regulated markets, multilateral trading facilities
or organised trading facilities ï.
67.
Paragraph 56
shall not preclude the right for Member States to require the application to
institutions located
ð authorised or registered ï in their territory of more stringent investment rules also on an
individual basis provided they are prudentially justified, in particular in the
light of the liabilities entered into by the institution.
ê 2003/41/EC
(adapted)
7. In the event of
cross-border activity as referred in Article 20, the competent authorities of
each host Member State may require that the rules set out in the second
subparagraph apply to the institution in the home Member State. In such case,
these rules shall apply only to the part of the assets of the institution that
corresponds to the activities carried out in the particular host Member State. Furthermore, they shall only be applied if the same or stricter rules also
apply to institutions located in the host Member State.
The rules referred to
in the first subparagraph are as follows:
            (a) the institution shall not invest more than 30 % of these
assets in shares, other securities treated as shares and debt securities which
are not admitted to trading on a regulated market, or the institution shall
invest at least 70 % of these assets in shares, other securities treated
as shares, and debt securities which are admitted to trading on a regulated
market;
            (b) the institution shall invest no more than 5 % of these
assets in shares and other securities treated as shares, bonds, debt securities
and other money and capital-market instruments issued by the same undertaking
and no more than 10 % of these assets in shares and other securities
treated as shares, bonds, debt securities and other money and capital market
instruments issued by undertakings belonging to a single group;
            (c) the institution shall not invest more than 30 % of these
assets in assets denominated in currencies other than those in which the
liabilities are expressed.
To comply with these
requirements, the home Member State may require ring-fencing of the assets.
ò new
8. The competent
authorities of the host Member State of an institution carrying out
cross-border activity as referred to in Article 12 shall not lay down investment
rules in addition to those set out in paragraphs 1 to 6 for the part of the
assets which cover technical provisions for cross-border activity.
Title III
CONDITIONS GOVERNING ACTIVITIES
CHAPTER 1
System of governance
Section 1
General provisions
Article 21
Responsibility
of the administrative, management or supervisory body 
1. Member States
shall ensure that the administrative, management or supervisory body of the
institution has the ultimate responsibility under national law for the
compliance, by the institution concerned, with the laws, regulations and
administrative provisions adopted pursuant to this Directive.
2. This Directive
is without prejudice to the role of social partners in the management of the
institutions.
Article 22
General
governance requirements
1. Member States
shall require all institutions to have in place an effective system of
governance which provides for sound and prudent management of their activities.
That system shall include an adequate transparent organisational structure with
a clear allocation and appropriate segregation of responsibilities and an
effective system for ensuring the transmission of information. The system of
governance shall be subject to regular internal review.
2. The system of
governance referred to in paragraph 1 shall be proportionate to the nature,
scale and complexity of the activities of the institution.
3. Member States
shall ensure that the administrative, management or supervisory body of the institution
shall adopt written policies in relation to  risk management, internal audit
and, where relevant, actuaries and outsourcing, and this body ensures that
those policies are implemented. The policies shall be reviewed annually and
shall be adapted in view of any significant change in the system or area
concerned.
4. Member States
shall ensure that institutions shall have in place an effective internal
control system. That system shall include administrative and accounting
procedures, an internal control framework, and appropriate reporting
arrangements at all levels of the institution.
5. Member States
shall ensure that institutions shall take reasonable steps to ensure continuity
and regularity in the performance of their activities, including the
development of contingency plans. To that end, the institution shall employ
appropriate and proportionate systems, resources and procedures.
6. Member States
shall require institutions to have at least two persons who effectively run the
institution.
Article 23
Requirements
for fit and proper management
1. Member States
shall require institutions to ensure that all persons who effectively run the
institution or have other key functions fulfil the following requirements when
carrying out their tasks: 
(a)                   
their professional
qualifications, knowledge and experience are adequate to enable them to ensure
a sound and prudent management of the institution and to properly carry out
their key functions (requirement to be fit); and
(b)                   
they are of good
repute and integrity (requirement to be proper).
2. Member States
shall ensure that there are effective procedures and regular controls in place
to enable the competent authorities to assess whether the persons who
effectively run the institution or have other key functions fulfil the
requirements laid down in paragraph 1.
3. Where a Member
State requires of its own nationals proof of good repute, proof of no previous
bankruptcy, or both, that Member State shall accept as sufficient evidence in
respect of nationals of other Member States the production of an extract from
the judicial record of the other Member State or, in the absence of a judicial
record in the other Member State, of an equivalent document issued by a
competent judicial or administrative authority in the home Member State or the
Member State whose national the concerned person is showing that those
requirements have been met.
4. Where the home
Member State or the Member State whose national the concerned person is does
not issue an equivalent document as referred to in paragraph 3, the national of
the other Member State shall be allowed to produce in its place a declaration
on oath. 
However, in
Member States where there is no provision for declarations on oath the national
of the other Member State concerned shall be allowed to produce a solemn
declaration made by him or her before a competent judicial or administrative
authority in their home Member State or the Member State from which they come
or before a notary in one of those Member States.
Such authority or
notary shall issue a certificate attesting the authenticity of the declaration
on oath or solemn declaration. 
5. The proof in
respect of no previous bankruptcy referred to in paragraph 3 may be provided in
the form of a declaration made by the nationals of the other Member State concerned
before a competent judicial, professional or trade body in that other Member
State concerned.
6. The documents
and certificates referred to in paragraphs 3, 4 and 5 shall not be presented
more than three months after their date of issue.
7. Member States
shall designate the authorities and bodies competent to issue the documents
referred to in paragraphs 3, 4 and 5 and shall forthwith inform the other Member States and the Commission thereof. 
Member States
shall also inform the other Member States and the Commission of the authorities
or bodies to which the documents referred to in paragraphs 3 to 5 are to be
submitted in support of an application to pursue the activities referred to in Article
12 in the territory of that Member State.
Article 24
Remuneration
policy
1. Member States
shall require institutions to have a sound remuneration policy for those
persons who effectively run the institution in a manner that is appropriate to
their size and internal
organisation, as well as to the nature, scope and complexity of their
activities.
2. Institutions
shall regularly disclose publicly relevant information regarding the
remuneration policy unless otherwise provided in the laws, regulations and
administrative provisions transposing Directive 95/46/EC of the European Parliament and of the
Council.[48]
3. The Commission
shall be empowered to adopt a delegated act in accordance with Article 77
specifying:
(a)                   
the required elements
of remuneration policies to be applied by institutions on the basis of the
following principles:
–              
the remuneration
policy shall be established, implemented and maintained in line with the
institution's activities and risk management strategy, its risk profile,
objectives, risk management practices and the long-term interests and
performance of the institution as a whole;
–              
the remuneration
policy shall incorporate proportionate measures aimed at avoiding conflicts of
interest;
–              
the remuneration
policy shall promote sound and effective risk management and shall not
encourage risk-taking that exceeds the risk tolerance limits of the institution;
–              
the remuneration
policy shall apply to the institution and to the parties performing the
institution’s key functions or any other activities, including outsourced and
subsequently re-outsourced key functions or any other activities; 
–              
the remuneration
policy shall contain provisions that are specific to the tasks and performance
of the administrative, management and supervisory body of the institution,
persons who effectively run the institution, holders of key functions and other
categories of staff whose professional activities have a material impact on the
institution's risk profile;
–              
the administrative,
management or supervisory body of the institution shall establish the general
principles of the remuneration policy for those categories of staff whose
professional activities have an impact on the institution's risk profile and shall
be responsible for the control of its implementation;
–              
the administrative,
management or supervisory body of the institution shall be responsible for the
implementation of the remuneration policy which support sound, prudent and
effective management of institutions;
–              
there shall be clear,
transparent and effective governance with regard to remuneration and its
oversight.
(b)                   
the appropriate
frequency, the specific modalities and content of the public discloure of the
remuneration policy.
Section 2
Functions
Article 25
General provisions 
1. Member States
shall require institutions to incorporate a risk-management function, an
internal audit function, and, where applicable, an actuarial function. The
reporting lines associated with each key function shall ensure the key function's
ability to undertake its duties effectively in an objective, fair and
independent manner.
2. Institutions
may allow a single person or organisational unit to carry out more than one key
function. However, the risk management function shall be allocated to a
different person or organisational unit from the one carrying out the internal
audit function.
3. Without
prejudice to the role of social partners in the overall management of
institutions, the person or organisational unit carrying out the key function
shall be different from the one carrying out a similar key function in the
sponsoring undertaking. On the basis of a reasoned request from the institution,
the competent authority may grant an exemption from this restriction taking
into account the size, nature, scope and complexity of the activities of the
institution.
4. The person
performing a key function shall promptly report any major problem in the area
of responsibility of that person to the administrative, management or
supervisory body of the institution.
5. Any findings
and recommendations of the risk management, internal audit and, where
applicable, actuarial functions shall be reported to the administrative,
management or supervisory body of the institution which shall determine what
actions are to be taken.
6. The risk
management, internal audit and, where applicable, actuarial functions
shall inform the competent authority of the institution if the administrative,
management or supervisory body of the institution does not take appropriate and
timely remedial action:
(a)                   
when the person or
organisational unit carrying out the key function has detected a risk that the
institution is unlikely to comply with a materially significant statutory
requirement and reported it to the administrative, management or supervisory body of the institution;
(b)                   
when the person or
organisational unit carrying out the key function has observed a materially
significant breach of the legislation or regulations applicable to the
institution and its activities in the context of the key function of that
person or organisational unit and reported it to the administrative, management or supervisory body of the
institution.
7. Member States
shall ensure legal protection of persons informing the competent authority in
accordance with paragraph 6.
Article 26
Risk management system and function
1. Member States
shall require institutions to have in place an effective risk-management system
comprising strategies, processes and reporting procedures necessary to
identify, measure, monitor, manage and report on a continuous basis the risks,
at an individual and at an aggregated level, to which they are or could be
exposed, and their interdependencies.
That
risk-management system shall be well-integrated into the organisational
structure and in the decision-making processes of the institution.
2. The
risk-management system shall cover appropriately to their size, internal
organisation and the nature, scope and complexity of their activities risks
which can occur in the institutions or in undertakings to which tasks or
activities have been outsourced at least in the following areas:
(a)                   
underwriting and
reserving;
(b)                   
asset–liability
management;
(c)                   
investment, in
particular derivatives and similar commitments;
(d)                  
liquidity and
concentration risk management;
(e)                   
operational risk
management;
(f)                    
insurance and other
risk-mitigation techniques.
3. Where, in
accordance with the conditions of the pension scheme, members and beneficiaries
bear risks, the risk management system shall also consider those risks from the
perspective of members and beneficiaries. 
4. Institutions
shall provide for a risk-management function structured in such a way as to
facilitate the implementation of the risk-management system.
Article 27
Internal audit function 
1. Member States
shall require institutions to provide for an effective internal audit function.
The internal audit function shall evaluate the adequacy and effectiveness of
the internal control system and other elements of the system of governance laid
down in Articles 21 to 24, including outsourced activities.
2. Member States
shall require institutions to designate at least one independent person, inside
or outside of the institution, who is responsible for the internal audit
function. Except for the
execution and certification referred to in Article 14(4), that person shall not assume
responsibility for key functions other than those laid down in this Article.
3. Findings and
recommendations of the internal audit function shall be reported to the
administrative, management or supervisory body of the institution. The administrative, management or
supervisory body of the institution  shall determine what actions are to be taken with respect to each of
those findings and recommendations and shall ensure that those actions are
carried out.
Article 28
Actuarial function
1. Member States
shall require that institutions where members and beneficiaries do not bear all
the risks provide for an effective actuarial function to:
(a)                   
co-ordinate and
oversee the calculation of technical provisions;
(b)                   
assess the
appropriateness of the methodologies and underlying models used in the
calculation of technical provisions and the  assumptions made for this purposes;
(c)                   
assess the sufficiency
and quality of the data used in the calculation of technical provisions;
(d)                  
compare best estimates
with the experience;
(e)                   
inform the
administrative, management or supervisory body of the institution of the
reliability and adequacy of the calculation of technical provisions;
(f)                    
express an opinion on
the overall underwriting policy in the event of the institution having such a
policy;
(g)                   
express an opinion on
the adequacy of insurance arrangements in the event of the institution having
such arrangements; and
(h)                   
contribute to the
effective implementation of the risk management system.
2. Member States
shall require institutions to designate at least one independent person, inside
or outside the institution, who is responsible for the actuarial function.
Section 3
Documents concerning governance
Article 29
Risk evaluation for pensions
1. Member States
shall require, appropriately to their size, internal organisation and the
nature, scope and complexity of their activities, institutions, as part of
their risk-management system, to carry out their own risk assessment and to
produce a risk evaluation for pensions in order to document that assessment.
The risk evaluation
for pensions shall be performed regularly and without delay following any significant
change in the risk profile of the institution or of the pension scheme.
2. The risk
evaluation for pensions referred to in paragraph 1 shall cover:
(a)                   
the effectiveness of
the risk-management system;
(b)                   
the overall funding
needs of the institution;
(c)                   
the ability to comply
with the requirements regarding technical provisions laid down in Article 14;
(d)                  
a qualitative
assessment of the margin for adverse deviation as part of the calculation of
the technical provisions in accordance with national law;
(e)                   
a description of
pension benefits or capital accumulation;
(f)                    
a qualitative
assessment of the sponsor support accessible to the institution;
(g)                   
a qualitative
assessment of the operational risks for all schemes of the institution,
(h)                   
a qualitative
assessment of new or emerging risks relating to climate change, use of
resources and the environment.
3. For the
purposes of paragraph 2, the institutions shall have in place methods to
identify and evaluate the risks they are or could be exposed to in the short
and in the long term. Those
methods shall be proportionate to the nature, scale and complexity of the risks
inherent in its activities. The
methods shall be described in the evaluation.
4. The risk
evaluation for pensions shall be an integral part of the operational strategy
and shall be taken into account in the strategic decisions of the institution.
Article 30
Delegated act for the risk evaluation for pensions
The Commission shall
be empowered to adopt a delegated act in accordance with Article 77 specifying:

(a) the elements to be covered by paragraph 2 of Article 29; 
(b) the methods referred to in paragraph (3) of
Article 29 taking into account the identification and the evaluation of the risks they are or could
be exposed to in the short and in the long term; and
(c) the frequency of the risk evaluation for pensions
taking into account the requirements in paragraph 1 of Article 29.
The delegated act
shall not impose additional funding requirements beyond those foreseen in this
Directive.
ê 2003/41/EC
Article 10 31
Annual accounts and annual reports
EachMember States shall require that
every institution located in its territorytheir territories to draw up annual accounts and annual reports
taking into account each pension scheme operated by the institution and, where
applicable, annual accounts and annual reports for each pension scheme. The
annual accounts and the annual reports shall give a true and fair view of the
institution's assets, liabilities and financial position. The annual accounts
and information in the reports shall be consistent, comprehensive, fairly
presented and duly approved by authorised persons, according toin accordance with national law.
Article 12 32
Statement of investment policy
principles
EachMember States shall ensure
that every institution located in its territorytheir territories prepares and, at
least every three years, reviews a written statement of investment-policy
principles. ThisThat statement
is to be revised without delay after any significant change in the investment
policy. Member States shall provide thatfor this statement to contains,
at least, such matters as the investment risk measurement methods, the
risk-management processes implemented and the strategic asset allocation with
respect to the nature and duration of pension liabilities.
ò new
CHAPTER 2
Outsourcing and investment management
Article 33
Outsourcing
ê 2003/41/EC
Art. 9 (4)
1.A Member
States may permit or require institutions located in its territory to entrust management of thoese
institutions, in whole or in part, to other entities operating on behalf of
those institutions.
ò new
2. Member States
shall ensure that institutions remain responsible for compliance with their
obligations under this Directive when they outsource key functions or any other
activities.
3. Outsourcing of
key functions or any other activities shall not be undertaken in such a way as
to lead to any of the following:
(a)                   
impairing the quality
of the system of governance of the institution concerned;
(b)                   
unduly increasing the
operational risk;
(c)                   
impairing the ability
of the competent authorities to monitor the compliance of the institution with
its obligations;
(d)                  
undermining continuous
and satisfactory service to members and beneficiaries.
4. The
institution shall ensure the proper functioning of the outsourced activities
through the process of selecting the service provider and the on-going
monitoring of the activities.
5. Member States
shall ensure that institutions outsourcing key functions or any other activities
enter into at least a written agreement with the service provider. The
agreement shall be legally enforceable and shall clearly define the rights and
obligations of the insitution and the service provider.
6. Member States
shall ensure that institutions notify, in a timely manner, competent
authorities in advance of any outsourcing of key functions or any other activities
as well as of any subsequent important developments with respect to the key functions
or any other activities.
7. Member States
shall ensure that competent authorities have the necessary powers to request
information from institutions about outsourced key functions or any other activities
at any time.
2003/41/EC (adapted)
Article 1934
Ö Investment Õ Mmanagement and
custody
ê 2011/61/EU
Art. 62.2 (adapted)
1. Member States shall not restrict institutions from appointing, for
the management of the investment portfolio, investment managers established in
another Member State and duly authorised for this activity, in accordance with
Directive 85/611/EEC 2004/39/EC, Ö and
Directives Õ, 2009/65/EC, 93/22/EEC 2000/12/EC 2009/138/EC, ,2002/83/EC 2011/61/EU and 2013/36/EU, as
well as those referred to in Article 2(1) of this Directive.
ò new
CHAPTER 3
Depositary
Article 35
Appointment of a depositary
1. For each
occupational pension scheme in which members and beneficiaries fully bear the
investment risk, the home Member State shall require the institution to appoint
a single depositary for safe-keeping of assets and oversight duties in
accordance with Article 36 and 37.
2. For occupational
pension schemes in which the members and beneficiaries do not fully bear the
investment risk, the home Member State may require the institution to appoint a
depositary for safe-keeping of assets or for safe-keeping of assets and
oversight duties in accordance with Articles 36 and 37.
ê 2003/41/EC
(adapted)
ð new
3. Member States shall not restrict
institutions from appointing, for the custody of their assets, custodians ð  depositaries ï established in another Member State and duly authorised in
accordance with Directive 93/22/EEC 2004/39/EC or Directive 2000/12/EC 2013/36/EU, or accepted as a
depositary for the purposes of Directive 85/611/EEC 2009/65/EC.
The provision referred to in this paragraph shall not prevent the home Member State from making the appointment of a depositary or a custodian compulsory.
4. EachMember States shall take the necessary steps to enable it Ö competent
authorities Õ under itstheir
national law to prohibit, in accordance with Article 1462,
the free disposal of assets held by a depositary or custodian located within theirits territory at the request of the
institution's home Member State.
ò new
5. The depositary
shall be appointed by means of at least a written contract. The contract shall
stipulate the transmission of the information necessary for the depositary to
perform its duties for the pension scheme for which it has been appointed as
depositary, as set out in this Directive and in other relevant laws,
regulations or administrative provisions.
6. When carrying
out the tasks laid down in Articles 36 and 37, the institution and the
depositary shall act honestly, fairly, professionally, independently and in the
interest of the scheme’s members and beneficiaries.
7. A depositary
shall not carry out activities with regard to the institution which may create
conflicts of interest between the institution, the scheme’s members and
beneficiaries and itself, unless the depositary has functionally and
hierarchically separated the performance of its depositary tasks from its other
potentially conflicting tasks, and the potential conflicts of interest are
properly identified, managed, monitored and disclosed to the scheme’s members
and beneficiaries.
8. Where no
depositary is appointed, institutions shall make arrangements to prevent and
resolve any conflict of interest in the course of tasks otherwise performed by
a depositary and an asset manager.
Article 36
Safekeeping of assets and depositary liability
1. Where the
assets of a pension scheme consisting of financial instruments which can be
held in custody are entrusted to a depositary for safekeeping, the depositary shall hold in custody all
financial instruments which can be registered in a financial instruments
account opened in the depositary’s books and all financial instruments which
can be physically delivered to the depositary. 
For those purposes,
the depositary shall ensure that the financial instruments which can be
registered in a financial instruments account opened in the depositary’s books
are registered in the depositary’s books within segregated accounts in
accordance with the rules laid down in Directive 2004/39/EC, opened in the name
of the institution, so that they can be clearly identified as belonging to the
institution or the pension scheme’s members and beneficiaries at all times.
2. Where the
assets of a pension scheme consist of other assets than those referred to in
paragraph 1, the depositary shall verify that the institution or the members
and beneficiaries are the owners of the assets and shall maintain a record of
their assets. The verification shall be carried out on the basis of information
or documents provided by the institution and, where available, on external
evidence. The depositary shall keep its record up-to-date.
3. Member States shall ensure that a depositary is liable to the institution
or the members and beneficiaries for any loss suffered by them as a result of
its unjustifiable failure to perform its obligations or its improper
performance of them.
4. Member States shall ensure that a depositary’s liability, as referred to
in paragraph 3, shall not be affected by the fact that it has entrusted to a
third party all or some of the assets in its safe-keeping.
5. Where no
depositary is appointed for the safe-keeping of assets, institutions shall, at
least be required to:
(a)                   
ensure that financial
instruments are subject to due care and protection;
(b)                   
keep records that
enable the institution to identify all asets at all times and without delay;
(c)                   
take the necessary
measures to avoid conflicts of interest or incompatibility;
(d)                  
inform the competent
authority, upon request, about the manner in which assets are kept.
Article 37
Oversight duties
1. The depositary
appointed for oversight duties shall carry out the tasks referred to in
paragraphs 1 and 2 of Article 36 in addition to the following:
(a)                   
carry out instructions
of the institution, unless they conflict with national law or the institution’s
rules;
(b)                   
ensure that in
transactions involving the assets of an institution or of a pension scheme any
consideration is remitted to the insitution  within the usual time limits;
(c)                   
ensure that income
produced by assets is applied in accordance with the institution’s rules.
2. Notwithstanding
paragraph 1, the home Member State of the institution may establish other
oversight duties to be performed by the depositary.
3. Where no
depositary is appointed for oversight duties, the institution shall implement
procedures which ensure that the tasks, otherwise subject to oversight by
depositaries, are being duly performed within the institution.
Title IV
INFORMATION TO BE GIVEN TO PROSPECTIVE MEMBERS, MEMBERS
AND BENEFICIARIES
CHAPTER 1
General provisions
2003/41/EC (adapted)
Article 11
Information
to be given to the members and beneficiaries
ò new
Article
38
Principles
ê 2003/41/EC (adapted)
1. Depending on the nature of the pension
scheme established, each Member States shall ensure that every institution located in their territoriesits territory provides Ö prospective
members, members and beneficiaries Õ at least the
information set out in this Article Ö Articles
39 to 53 and Articles 55 to 58. Õ 
ò new
2. The
information shall fulfil all the following requirements:
(a)                   
it shall be regularly
updated;
(b)                   
it shall be written in
a clear manner, using clear, succinct and comprehensible language, avoiding the
use of jargon and avoiding technical terms where everyday words can be used
instead;
(c)                   
it shall not be
misleading and consistency shall be ensured in the vocabulary and content; 
(d)                  
it shall be presented
in a way that is easy to read, using characters of readable size.
Colours shall not
be used where they may diminish the comprehensibility of the information if the
pension benefit statement is printed or photocopied in black and white.
Article 39
Conditions of the pension scheme
ê 2003/41/EC Article 9 (f) (adapted)
1. EachMember
States shall, in respect of every
institution located in their territoriesits territory, ensure that: (f) the members are sufficiently informed
of the conditions of the pension scheme, in particular concerning:
(i)(a) the
rights and obligations of the parties involved in the pension scheme;
(ii)(b) the
financial, technical and other risks associated with the pension scheme;
(iii)(c) the
nature and distribution of those risks.
ò new
2. For schemes in
which members bear an investment risk and which provide for more than one
option with different investment profiles, the members shall be informed of the
conditions regarding the range of investment options available, the default
investment option and, where applicable, the pension scheme's rule to allocate
a particular member to an investment option, in addition to the information
listed in points (a), (b) and (c) of the first paragraph.
2003/41/EC Article 11 (2)
3. Members and beneficiaries and/or, where
applicable, their representatives shall receive:
            (a) on request, the annual accounts and the annual reports referred
to in Article 10, and, where an institution is responsible for more than one
scheme, those relating to their particular pension scheme;
            (b)
within a reasonable time, any relevant information regarding changes to the
pension scheme rules.
ò new
4. Institutions
shall publish the conditions of the pension scheme on a website of their
choice.
CHAPTER 2
Pension Benefit Statement
Article 40
Frequency and changes
(1)                   
Member States shall
require institutions to draw up a document containing key information for each member
(the 'pension benefit statement').
(2)                   
Members States shall
ensure that the information contained in the pension benefit statement is
updated and sent to each member at least once every twelve months and free of
charge.
(3)                   
Any material change to
the information contained in the pension benefit statement compared to the
previous year shall be clearly explained in an accompanying letter.
Article 41
Comprehensibility and language
1.           The
information provided in the pension benefit statement shall be comprehensible
without reference to other documents.
2.           Member
States shall ensure that the pension benefit statement is available in an
official language of the Member State whose social and labour law relevant to
the field of occupational pension schemes is applicable to the relationship
between the sponsoring undertaking or the institution on the one hand and the members
or the beneficiaries on the other.
Article 42
Length
The pension
benefit statement shall use characters of easily readable size and shall not be
longer than two pages of A4-sized paper when printed.
Article 43
Medium
Member States may
allow institutions to provide the pension benefit statement in a durable medium
or by means of a website. A paper copy shall be delivered to the members and
beneficiaries on request and free of charge, in addition to any electronic
means.
Article 44
Liability
1. Member States
shall ensure that institutions do not incur civil liability solely on the basis
of the pension benefit statement, or a translation of the pension benefit
statement, unless it is misleading, inaccurate or inconsistent with the
relevant part of the pension scheme. 
2. The pension
benefit statement shall contain a clear warning in this respect.
Article 45
Title
1.           The
title of the pension benefit statement shall contain the words 'Pension benefit
statement'.
2.           A
short statement explaining the purpose of the pension benefit statement shall
appear directly underneath the title.
3.           The
exact date to which the information in the pension benefit statement refers
shall be stated prominently.
Article 46
Personal details
The pension
benefit statement shall specify the personal details of the member, including
the legal retirement age, where applicable.
Article 47
Identification of the institution
The pension
benefit statement shall identify the institution and provide information about:
(1)                   
the name of the
institution and its address;
(2)                   
the Member States in which the institution is authorised or registered and the name of the
competent authority;
(3)                   
the name of the
sponsoring undertaking.
Article 48
Guarantees
1. The pension
benefit statement shall contain one of the following indications regarding
guarantees under the pension scheme:  
(a) a
full guarantee where the institution or the sponsoring undertaking guarantees a
given level of benefits;
(b) no guarantee where the member fully bears the
risk;
(c) a partial guarantee in all other cases.
2. Where a
guarantee is provided, the following shall be briefly explained: 
(a) the nature of the guarantee;
(b) the current level of financing of the member's
accrued individual entitlements;
(c) mechanisms protecting accrued individual
entitlements;
(d) benefit reduction mechanisms, where those laid
down in national legislation.
Article 49
Balance, contributions and costs
1. With regard to
balance, contributions and costs, the pension benefit statement shall indicate
the following amounts expressed in the currency relevant for the pension
scheme:
(a) the sum of the costs deducted from the gross
contributions paid by the sponsoring undertaking, where applicable, or by the member
over the past twelve months, or, if the member has joined the scheme less than
twelve months ago, the sum of the costs deducted from their contributions since
joining;
(b) the sum of the contributions paid by the member
over the past twelve months, or, if the member has joined the scheme less than
twelve months ago, the sum of their contributions since joining;
(c) the sum of the contributions paid by the
sponsoring undertaking over the past twelve months, or, if the member has
joined the scheme less than twelve months ago, the sum of the contributions
paid by the sponsoring undertaking since the member joined;
(d) the balance on the date of the pension benefit
statement calculated in one of the two following ways depending on the nature
of the pension scheme:
(i) for pension
schemes that do not provide for a target level of benefits, the total sum of
the capital accumulated by the member, expressed also as an annuity per month,
(ii) for pension
schemes that provide for a target level of benefits, the accrued individual
entitlements per month.
(e) other contributions or costs relevant to the
member such as transfer of accrued capital;
(f) the costs referred to in point (a) broken down
into the following separate amounts expressed in the currency relevant for the
pension scheme:
(i) costs of
administration of the institution;
(ii) costs of
safekeeping of assets;
(iii) costs related
to portfolio transactions;
(iv) other costs.
2.
The ‘other costs’ referred to in paragraph 1 (f)(iv) shall be briefly explained
where they account for 20% or more of the total charges.
Article 50
Pension projections
1. Where the
pension scheme provides for a target level of benefits, the pension benefit
statement shall indicate the following three amounts concerning pension
projections expressed in the currency relevant for the pension scheme:
(a)                   
the target level of
benefits per month at the retirement age under best estimate assumptions;
(b)                   
the target level of
benefits per month two years before the retirement age under best estimate
assumptions;
(c)                   
the target level of
benefits per month two years after the retirement age under best estimate
assumptions.
2. The
assumptions referred to in paragraph 1 shall take into account future wages.
3. Where the
pension scheme does not provide for a target level of benefits, the pension
benefit statement shall indicate the following amounts concerning pension
projections expressed in the currency relevant for the pension scheme:
(a)                   
the expected amount of
capital accumulated until two years before the retirement age under best
estimate assumptions relevant for the scheme;
(b)                   
the expected amount of
capital accumulated until the retirement age under best estimate assumptions
relevant for the scheme;
(c)                   
the expected amount of
capital accumulated until two years after the retirement age under best
estimate assumptions relevant for the scheme; 
(d)                  
the amounts referred
to in points (a) to (c) expressed as a benefit per month.
4. The
assumptions referred to in paragraph 3 shall take into account the following
factors:
(a) the annual rate of nominal investment returns;
(b) the annual rate of inflation;
(c) future wages.
5. For the
purposes of calculating the projections referred to in paragraphs 1 and 3, the
contribution rates shall be assumed to remain constant.
Article 51
Investment profile
1. For pension
schemes where members bear investment risk and where they have a choice between
different investment options, the pension benefit statement shall indicate the
investment profiles providing a list of the investment options available and a
short description of each option. The member's current investment option shall
be marked prominently.
When the number
of different investment options with different investment objectives exceeds
five, the institution shall restrict the short description of each option to
five representative options including the most risky and the least risky
options.
2. For pension
schemes where members bear investment risk and where an investment option is imposed
on the member by a specific rule specified in the pension scheme, the following
additional information shall be provided:
(a) rules based on actual age;
(b) rules based on the member's targeted retirement age;
(c) other rules.
3. For pension
schemes where members bear investment risk, the pension benefit statement shall
contain information about the risk and return profile showing a synthetic
graphical indicator of the risk and return profile of the pension scheme or,
where applicable, of each investment option accompanied by the following:
(a) an explanation of the indicator and of its main limitations;
(b) an explanation of risks which are materially
relevant and which are not adequately captured by the synthetic graphical
indicator.
The computation
of the synthetic indicator shall be adequately documented and institutions shall
make that documentation available to members on request.
4. The
explanation referred to in paragraph 3(a) shall include the following:
(a) a brief explanation as to why the pension scheme
or investment option is in a specific category;
(b) a statement that historical data, such as is used
in calculating the synthetic graphical indicator, is not a reliable indication
of the future risk profile of the pension scheme or of the investment option;
(c) a statement that the risk and return category
shown is not guaranteed to remain unchanged and that the categorisation of the
pension scheme or the investment option may shift over time;
(d) a statement that the lowest category does not
mean a risk-free investment.
5. The synthetic
graphical indicator and the explanations referred to in paragraph 3 shall be drawn
up in accordance with the internal process for identifying, measuring and
monitoring risks adopted by the institution as laid down in this Directive, as
well as with the investment objectives and investment policy described in the
statement of investment principles.
Article 52
Past performance
1. The pension
benefit statement shall contain the following information about past
performance:
(a) information about the past performance of the
pension scheme as a whole, or where relevant, of the member's investment option
presented in a chart covering that performance for any years available and up
to the last ten years;
(b) the chart layout supplemented by statements which
appear prominently and which:
(i) warn about its
limited value as a guide to future performance;
(ii) indicate which
costs have been included or excluded from the calculation of past performance;
(iii) indicate the
currency in which past performance has been calculated.
2. Where a
material change occurs to a pension scheme's objective and investment policy
during the period displayed in the chart referred to in paragraph 1, the
pension scheme's past performance prior to that material change shall be shown.
The period prior to the material change shall be indicated on the chart and
labelled with a clear warning that the performance was achieved under
circumstances that no longer apply.
3. Where a member
changes investment option, the past performance of that investment option shall
be shown.
Article 53
Supplementary information
The pension
benefit statement shall specify the following supplementary information:
(a)                   
where and how to
obtain further information about the institution or the pension scheme,
including from websites and relevant legal acts of a general nature;
(b)                   
where and how to
obtain further information about the arrangements relating to the transfer of
pension rights to another institution for occupational retirement provision in
the event of termination of the employment relationship;
(c)                   
information about the
assumptions used for amounts expressed in annuities, in particular with respect
to the annuity rate, the type of provider and the duration of the annuity,
where the member requests that information;
(d)                  
where and how to obtain
access to additional information about the member's individual situation
including the target level of the retirement benefits, if applicable, and the
level of benefits in case of cessation of employment.
Article 54
Delegated act on the pension benefit statement
The Commission shall
be empowered to adopt a delegated act in accordance with Article 77 specifying:

(a)          the content
of the pension benefit statement, comprising of:  
(i)      the way of
explaining material changes as referred to in Article 40(3); 
(ii)     the size of
the characters as referred to in Article 42;
(iii)    the wording
of the liability warning as referred to in Article 44;
(iv)    the wording
of the statement as referred to in Article 45(2);
(v)     the personal
details to be specified as referred to in Article 46;
(vi)    the method
to explain the elements contained in Article 48(2) points (a), (b), (c) and
(d);
(vii)   the method
of calculating the amounts as referred to in Article 49(1) points (a), (b),
(c), (d), (e) and (f);
(viii)  the method
of calculating the amounts as referred to in Article 50(1) and Article 50(3)
taking into account the condition as set out in Article 50(5);
(ix)    the
assumptions to be used as referred to in Article 50(2) and Article 50(4);
(x)     the number
of investment options to be displayed and the method to choose those options
where the number of options exceeds five, the method of describing the options
displayed, the way of marking the member's current investment option as
referred to in Article 51(1);
(xi)    the method
of describing the additional information as referred to in Article 51(2);
(xii)   the method
of generating and displaying the synthetic graphical indicators and the
explanations as referred to in Article 51(3) taking into account the conditions
as set out in Article 51(4);
(xiii)  the method
of generating the information about the past performance as referred to in
Article 52(1)(a) and the methods of producing the statement and chart layout as
referred to in Article 52(1)(b);
(xiv)  the method
for comparing different investment options in pension schemes as referred to in
Article 52(1)(a);
(xv)   the method of
showing the material change as referred to in Article 52(2);
(xvi)  the method of
specifying the supplementary information as referred to in Article 53.
(b)          the format,
layout, structure and sequencing of the pension benefit statement, comprising
the information referred to in Articles 44(2) to 53, whilst taking into account
the conditions in Articles 41(1) and Article 42.
CHAPTER 3
Other information and documents to be provided
Article 55
Information to be given to prospective members 
The institution
shall ensure that prospective members are informed about all the features of
the scheme and any investment options including information on how
environmental, climate, social and corporate governance issues are considered
in the investment approach.
Article 56
Information to be given to members during the
pre-retirement phase
In addition to
the pension benefit statement, institutions shall provide each member, at least
two years before the retirement age provided for in the scheme, or at the
request of the member, with the following information:
(a)                   
information about the
options available to members in taking their retirement income, including
information about the advantages and disadvantages of those options, in a way
which supports them in choosing the option most appropriate to their
circumstances;
(b)                   
where the pension
scheme is not paid out as a lifetime annuity, information about the benefit
payment products available, including their advantages and disadvantages, and
the key considerations members should consider when making the decision to buy
a benefit payment product.
Article 57
Information to be given to beneficiaries during the
pay-out phase
1. Institutions
shall provide beneficiaries with information about the benefits due and the
corresponding payment options.
2. When a
significant level of investment risk is borne by beneficiaries in the pay-out
phase, Member States shall ensure that beneficiaries receive appropriate
information.
Article 58
Additional information to be given on request to
members and beneficiaries
1. On request of
a member, a beneficiary or their representatives, the insitution shall provide the
following additional information:
(a) the annual accounts and the annual reports
referred to in Article 31, or where an institution is responsible for more than
one scheme, those accounts and reports relating to their particular pension
scheme;
ê 2003/41/EC
(adapted)
3.(b) the statement of investment policy principles, referred to in
Article 12 32, shall be made available to members and
beneficiaries and/or, where applicable, to their representatives on request.
ò new
(c) information about the assumptions used
to generate the projections referred to Article 50;
(d) information about the assumed annuity rate, the
type of provider and the duration of the annuity referred to in Article 53 (c).
ê 2003/41/EC
ð new
4 2. ð On request from a ï  Each member, ð the institution ï shall also ð provide ï receive,
on request, detailed and substantial information
on:
              (a) the target level of the
retirement benefits, if applicable;
              (b) the level of benefits in
case of cessation of employment.;
            (c) where the member bears the investment risk, the
range of investment options, if applicable, and the actual investment portfolio
as well as information on risk exposure and costs related to the investments;
              (d) the arrangements relating to the transfer of pension
rights to another institution for occupational retirement provision in the
event of termination of the employment relationship.
              Members shall receive every year brief particulars of the
situation of the institution as well as the current level of financing of their
accrued individual entitlements.
5. Each beneficiary shall receive, on retirement or
when other benefits become due, the appropriate information on the benefits
which are due and the corresponding payment options. 
ò new
Title V
PRUDENTIAL SUPERVISION
Chapter 1
General rules on prudential supervision
Article 59
Main
objective of prudential supervision
1. The main
objective of prudential supervision is the protection of members and
beneficiaries.
2. Without
prejudice to the main objective of prudential supervision as set out in
paragraph 1, Member States shall ensure that, in the exercise of their general
duties, the competent authorities shall duly consider the potential impact of
their decisions on the stability of the financial systems concerned in the
Union, in particular in emergency situations, taking into account the
information available at the relevant time.
Article 60
Scope of
prudential supervision
Member States
shall ensure that institutions for occupational retirement provision are
subject to prudential supervision including the supervision of the following:
(a) conditions of
operations;
(b) technical
provisions;
(c) funding of
technical provisions;
(d) regulatory own
funds;
(e) available
solvency margin;
(f) required
solvency margin;
(g) investment
rules;
(h) investment
management;
(i) conditions
governing activities; and
(j) information to
be provided to competent authorities.
Article 61
General principles of prudential
supervision
1. The competent
authorities of the home Member State shall be responsible for the prudential
supervision of institutions for occupational retirement provision.
2. Member States shall ensure that supervision is
based on a prospective and risk-based approach. 
3. Supervision of institutions shall comprise an
appropriate combination of off-site activities and on-site inspections.
4. Supervisory powers shall be applied in a timely
and proportionate manner.
5. Member States shall
ensure that the competent authorities duly consider the potential impact of
their actions on the stability of the financial systems in the European Union,
in particular in emergency situations.
ê 2003/41/EC
  
Article 14 62
Powers of intervention and duties
of the competent authorities
1. The competent authorities shall require
every institution located in their territories to have sound administrative and
accounting procedures and adequate internal control mechanisms.
2. The competent authorities shall have the
power to take any measures including, where appropriate, those of an
administrative or financial nature, either with regard to any institution
located in their territories or against the persons running the institution,
which are appropriate and necessary to prevent or remedy any irregularities
prejudicial to the interests of the members and beneficiaries.
ê 2010/78/EU
Art. 4.3
ð new
3. Any decision to prohibit ð or restrict ï the activities of an institution shall contain detailed reasons and
be notified to the institution in question. It shall also be notified to EIOPA.
ê 2003/41/EC
(adapted)
They Ö 4. Competent
authorities Õ may also
restrict or prohibit the free disposal of the institution's assets when, in
particular:
(a)                   
the institution has failed to establish
sufficient technical provisions in respect of the entire business or has
insufficient assets to cover the technical provisions;
(b)                   
the institution has failed to hold the
regulatory own funds.
5. In order to safeguard the interests of
members and beneficiaries, the competent authorities may transfer the powers
which the persons running an institution located in their territories hold in
accordance with the law of the home Member State wholly or partly to a special
representative who is fit to exercise these powers.
64. The
competent authorities may prohibit or restrict the activities of an institution
located in their territories in particular if:
(a)                   
the institution fails to protect adequately the
interests of Ö scheme Õ  members and
beneficiaries;
(b)                   
the institution no longer fulfils the conditions
of operation;
(c)                   
the institution fails seriously in its obligations
under the rules to which it is subject;
(d)                  
in the case of cross-border activity, the
institution does not respect the requirements of social and labour law of the
host Member State relevant to the field of occupational pensions.
75. Member
States shall ensure that decisions taken in respect of an institution under
laws, regulations and administrative provisions adopted in accordance with this
Directive are subject to the right to apply to the courts.
ò new
Article 63
Supervisory review process
1. Member States
shall ensure that competent authorities review the strategies, processes and
reporting procedures which are established by institutions to comply with the
laws, regulations and administrative provisions adopted pursuant to this
Directive.
That review shall
take into account the circumstances in which the institutions are operating,
and, where relevant, the parties carrying out outsourced key functions or any
other activities for them. The review shall comprise the following elements:
(a) an assessment of the qualitative requirements
relating to the system of governance;
(b) an assessment of the risks the institution faces;
(c) an assessment of the ability of the institution
to assess those risks.
2. Member States
shall ensure that competent authorities have monitoring tools, including
stress-tests, that enable them to identify deteriorating financial conditions
in an institution and to monitor how a deterioration is remedied. 
3. The competent
authorities shall have the necessary powers to require institutions to remedy
weaknesses or deficiencies identified in the supervisory review process.
4. The competent authorities shall establish
the minimum frequency and the scope of the review laid down in paragraph 1 having
regard to the nature, scale and complexity of the activities of the
institutions concerned.
ê 2003/41/EC
Article 13 64
Information to be provided to the
competent authorities
1. EachMember States shall ensure that the competent authorities,
in respect of any institution located in their
territoriesits
territory, have the necessary powers and means:
(a) to require the
institution, the members of its board of directors and other managers or
directors or persons controlling the institution to supply information about
all business matters or forward all business documents;
ê 2003/41/EC
(adapted)
ð new
              (b) to supervise relationships
between the institution and other companies or between institutions, when
institutions transfer Ö key Õ functions Ö or any
other activities Õ to those other
companies or institutions (outsourcing ð and all subsequent re-outsourcing ï), influencing the financial situation of the institution or being
in a material way relevant for effective supervision;
              (c) to obtain regularly the ð following documents: the risk
evaluation for pensions ï, Ö the Õ statement of
investment-policy principles ð documents relating to the governance
system ï, the annual accounts and the annual reports, ð information documents as provided to
members and beneficiaries, ï and all Ö other Õ documents
necessary for the purposes of supervision. These may include documents such
as:
ò new
(d) to lay down which documents are necessary for the purposes of
supervision, including:
ê 2003/41/EC
(adapted)
ð new
         (i) internal interim reports;
         (ii) actuarial valuations and
detailed assumptions;
         (iii) asset-liability studies;
         (iv) evidence of consistency with the
investment-policy principles;
         (v) evidence that contributions have
been paid in as planned;
         (vi) reports by the persons
responsible for auditing the annual accounts referred to in Article 1031;
              (d)(e) to
carry out on-site inspections at the institution's premises and, where
appropriate, on outsourced ð and all subsequent re-outsourced
activities ï functions to check if activities are carried out in accordance with the
supervisory rules.
ò new
(f) to request information from institutions about outsourced and all
subsequent re-outsourced activities at any time.
ê 2010/78/EU
Art. 4.2(b)
2. EIOPA may develop draft implementing
technical standards on the forms and formats for the documents listed in
paragraph 1(c)(d)
(i) to (vi).
Power is conferred on the Commission to
adopt the implementing technical standards referred to in the first
subparagraph in accordance with Article 15 of Regulation (EU) No
1094/2010.
ò new
Article 65
Transparency
and accountability
1. Member States
shall ensure that the competent authorities conduct the tasks laid down in Articles
60, 61, 62, 63 and 64 in a transparent and accountable manner with due respect
for the protection of confidential information.
2. Member States
shall ensure that the following information is publicly disclosed:
(a) the texts of laws, regulations, administrative rules and general
guidance in the field of occupational pensions regulation, and information
about whether the Member State chooses to apply this Directive in accordance
with Articles 4 and 5;
(b) information regarding the supervisory review process as set out in
Article 63;
(c) aggregate statistical data on key aspects of the application of the
prudential framework;
(d) a statement that the main objective of prudential supervision is
the protection of members and beneficiaries and information on the main
functions and activities of the supervision;
(e) the rules on administrative sanctions applicable to breaches of
national provisions adopted pursuant to this Directive.
3. Member States
shall ensure that they have in place and apply transparent procedures regarding
the appointment and dismissal of the members of the governing and managing
bodies of their competent authorities.
Chapter 2
Professional secrecy and exchange of information 
Article 66
Professional secrecy
1. Member States
shall lay down rules to ensure that all persons who are working or who have
worked for the competent authorities, as well as auditors and experts acting on
behalf of those authorities, are bound by the obligation of professional
secrecy.
Without prejudice
to cases covered by criminal law, those persons shall not divulge confidential
information received by them in the course of their duties to any person or
authority, except in summary or aggregate form not allowing for the
identification of individual institutions.
2. By derogation
from paragraph 1, where a pension scheme is transferred to another institution
or another entity, confidential information which does not concern third
parties involved in attempts to rescue that undertaking may be divulged in
civil or commercial proceedings.
Article 67
Use of confidential information
Member States
shall ensure that competent authorities which receive confidential information
under this Directive use it only in the course of their duties and for the
following purposes:
(a)                   
to check that the
conditions for occupational retirement provision are met by institutions before
commencing their activities; 
(b)                   
to facilitate the
monitoring of the activities of institutions, including the monitoring of the
technical provisions, the solvency, the system of governance, and the
information provided to members and beneficiaries;
(c)                   
to impose corrective
measures, including sanctions;
(d)                  
appeals against
decisions of the competent authorities taken in accordance with the provisions
transposing this Directive;
(e)                   
in court proceedings
regarding the provisions transposing this Directive.
Article 68
Exchange of information between authorities
1. Article 66
shall not preclude any of the following:
(a)                   
the exchange of
information between competent authorities in the same Member State in the discharge of their supervisory functions;
(b)                   
the exchange of
information between competent authorities in different Member States in the
discharge of their supervisory functions;
(c)                   
the exchange of
information, in the discharge of their supervisory functions, between competent
authorities and any of the following which are situated in the same Member State:
(i) authorities
responsible for the supervision of financial sector entities and other
financial organisations and the authorities responsible for the supervision of
financial markets;
(ii) authorities or
bodies charged with responsibility for maintaining the stability of the
financial system in Member States through the use of macro-prudential rules;
(iii) bodies
involved in the termination of a pension scheme and in other similar
procedures;
(iv) reorganisation
bodies or authorities aiming at protecting the stability of the financial
system;
(v) persons
responsible for carrying out statutory audits of the accounts of institutions,
insurance undertakings and other financial institutions;
(d)                  
the disclosure, to
bodies which administer the termination of a pension scheme, of information
necessary for the performance of their duties.
2. The
information received by the authorities, bodies and persons referred to in
paragraph 1 shall be subject to the rules on professional secrecy laid down in Article
66.
3. Article 66
shall not preclude Member States from authorising exchanges of information
between the competent authorities and any of the following:
(a)                   
the authorities
responsible for overseeing the bodies involved in the termination of pension
schemes and other similar procedures;
(b)                   
the authorities
responsible for overseeing the persons charged with carrying out statutory audits
of the accounts of institutions, credit institutions, investment firms,
insurance undertakings and other financial institutions;
(c)                   
independent actuaries
of institutions carrying out legal supervision of those institutions and the
bodies responsible for overseeing such actuaries.
Article 69
Transmission of information to central banks,
monetary authorities, European Supervisory Authorities and the European
Systemic Risk Board
1. Article 66 shall
not prevent a competent authority from transmitting information to the
following entities for the purposes of the exercice of their respective tasks:
(a) central banks and other bodies with a similar function in their
capacity as monetary authorities;
(b) where appropriate, other public authorities responsible for
overseeing payment systems;
(c) the European Systemic Risk Board, EIOPA, the European Banking
Authority and the European Securities and Markets Authority.
2. Articles 68 to
71 shall not prevent the authorities or bodies referred to in paragraph 1 (a),
(b) and (c) from communicating to the competent authorities such information as
the competent authorities may need for the purposes of Article 67.
3. Information
received in accordance with paragraphs 1 and 2 shall be subject to professional
secrecy requirements at least equivalent to those as set out in this Directive.
Article 70
Disclosure of information to government
administrations responsible for financial legislation
1. Articles 66
(1), 67 and 71 (1) shall not preclude Member States from authorising the disclosure
of confidential information to other departments of their central government
administrations responsible for the enforcement of legislation on the
supervision of institutions, credit institutions, financial institutions,
investment services, insurance undertakings and to inspectors acting on behalf
of those departments.
Such disclosure
shall be made only where necessary for reasons of prudential control, and
prevention and resolution of failing institutions. Without prejudice to
paragraph 2 of this Article, persons having access to the information shall be
subject to professional secrecy requirements at least equivalent to those set
out in this Directive. Member States shall, however, provide that information
received under Article 68, and information obtained by means of on-site
verification may only be disclosed with the express consent of the competent
authority from which the information originated or of the competent authority
of the Member State in which the on-site verification was carried out.
2. Member States
may authorise the disclosure of confidential information relating to the
prudential supervision of institutions to parliamentary enquiry committees or
courts of auditors in their Member State and other entities in charge of
enquiries in their Member State, where all of the following conditions are
fulfilled:
(a) the entities have the competence under national law to investigate
or scrutinise the actions of authorities responsible for the supervision of
institutions or for laws on such supervision;
(b) the information is strictly necessary for fulfilling the competence
referred to in point (a);
(c) the persons with access to the information are subject to
professional secrecy requirements under national law at least equivalent to
those set out in this Directive; 
(d) if the information originates from another Member State, this information is disclosed with the explicit agreement of the originating competent
authorities and solely for the purposes for which those authorities gave their
agreement.
Article 71
Conditions for the exchange of information
1. For exchanges
of information under Articles 68, transmission of information under Article 69
and disclosure of information under Article 70, Member States shall require
that at least the following conditions are met:
(a) the information shall be exchanged, transmitted or disclosed for
the purpose of carrying out the oversight or legal supervision;
(b) the information received shall be subject to the obligation of
professional secrecy laid down in Article 66;
(c) where the information originates from another Member State, it shall not be disclosed without the express agreement of the competent authority from
which it originates and, where appropriate, solely for the purposes for which
that authority gave its agreement.
2. Article 67 shall not
preclude Member States from authorising, with the aim of strengthening the
stability, and integrity, of the financial system, the exchange of information
between the competent authorities and the authorities or bodies responsible for
the detection and investigation of breaches of company law applicable to
sponsoring undertakings. 
Member States
which apply the first subparagraph shall require that at least the following
conditions are met:
(a) the information must be intended for the purpose of detection and
investigation as referred to in Article 70(2)(a);
(b) information received must be subject to the obligation of
professional secrecy laid down in Article 66;
(c) where the information originates from another Member State, it shall not be disclosed without the express agreement of the competent authority from
which it originates and, where appropriate, solely for the purposes for which
that authority gave its agreement.
3.Where, in a
Member State, the authorities or bodies referred to in the first subparagraph
of paragraph 2 perform their task of detection or investigation with the aid of
persons appointed, in view of their specific competence, for that purpose and
not employed in the public sector, the possibility of exchanging information
provided for in Article 70(2) shall apply.
Article 72
National
provisions of a prudential nature
ê 2010/78/EU
Art. 4.5 (adapted)
11. 1. Member States shall report to EIOPA their national provisions of
prudential nature relevant to the field of occupational pension schemes, which
are not covered by the reference to national social and labour law in paragraph 1 Article 12(1).
2. Member States shall update that
information on a regular basis and at least every 2two
years and EIOPA shall make that information available on its website.
In order to ensure uniform conditions of
application of this paragraph, EIOPA shall develop draft implementing technical
standards on the procedures to be followed and formats and templates to be used
by the competent authorities when transmitting and updating the relevant
information to EIOPA. EIOPA shall submit those draft implementing technical
standards to the Commission by 1 January 2014.
Power is conferred on the Commission to
adopt the implementing technical standards referred to in the third
subparagraph in accordance with Article 15 of Regulation (EU) No
1094/2010.
ê 2003/41/EC
(adapted)
Article 21b
Committee procedure
1. The Commission
shall be assisted by the European Insurance and Occupational Pensions Committee
established by Commission Decision 2004/9/EC[49].
ò new
Title VI
FINAL PROVISIONS
ê 2003/41/EC
Article 2173
ê 2010/78/EU Art.
4.6(a)
Cooperation between Member States, EIOPA and the Commission
ê 2003/41/EC
1. Member States shall ensure, in an
appropriate manner, the uniform application of this Directive through regular
exchanges of information and experience with a view to developing best practices
in this sphere and closer cooperation, and by so doing, preventing distortions
of competition and creating the conditions required for unproblematic
cross-border membership.
2. The Commission and the competent
authorities of the Member States shall collaborate closely with a view to
facilitating supervision of the operations of institutions for occupational
retirement provision.
ê 2010/78/EU
Art. 4.6(b)
2a3. The
competent authorities shall cooperate with EIOPA for the purposes of this Directive,
in accordance with Regulation (EU) No 1094/2010.
The competent authorities shall without
delay provide EIOPA with all information necessary to carry out its duties
under this Directive and under Regulation (EU) No 1094/2010, in accordance with
Article 35 of that Regulation.
ê 2010/78/EU
Art. 4.6(c)
34.
Each Member State shall inform the Commission and EIOPA of any major
difficulties to which the application of this Directive gives rise.
The Commission, EIOPA and the competent
authorities of the Member States concerned shall examine such difficulties as
quickly as possible in order to find an appropriate solution.
ò new
Article 74
Processing of personal data
With regard to
the processing of personal data within the framework of this Directive,
institutions and competent authorities shall carry out their tasks for the
purposes of this Directive in accordance with national law implementing
Directive 95/46/EC. With regard to the processing of personal data by EIOPA
within the framework of this Directive, EIOPA shall comply with the provisions
of Regulation (EC) No 45/2001.
Article 75
Evaluation
and review 
ê 2003/41/EC
(adapted)
ð new
4. Four years after the entry into force of this Directive, the Commission
shall issue a ð review this Directive and ï report reviewing: ð on its implementation and
effectiveness to the European Parliament and the Council. ï
            (a) the application of Article 18 and the progress
achieved in the adaptation of national supervisory systems, and
            (b) the application of the second subparagraph of
Article 19(2), in particular the situation prevailing in Member States
regarding the use of depositaries and the role played by them where
appropriate.
5. The competent authorities of the host Member State may ask the competent authorities of the home Member State to decide on the
ring-fencing of the institution's assets and liabilities, as provided for in
Article 16(3) and Article 18(7).
ê 2009/138/EC
Art. 303.3 (adapted)
Article 21a
Review of the amount of the guarantee fund
1. The amount in euro
as laid down in Article 17c(2) shall be reviewed annually starting on
31 October 2012, in order to take account of changes in the Harmonised
Indices of Consumer Prices of all Member States as published by Eurostat.
That amount shall be
adapted automatically, by increasing the base amount in euro by the percentage
change in that index over the period between 31 December 2009 and the
review date and rounded up to a multiple of EUR 100000.
If the percentage
change since the last adaptation is less than 5 %, no adaptation shall
take place.
2. The Commission
shall inform the European Parliament and the Council annually of the review and
the adapted amount referred to in paragraph 1.
ê 2003/41/EC
(adapted)
Article 22
Implementation
1. Member States
shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive before 23 September 2005. 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.
2. Member States
shall communicate to the Commission the text of the main provisions of national
law which they adopt in the field governed by this Directive.
3. Member States may
postpone until 23 September 2010 the application of Article 17(1) and (2) to
institutions located in their territory which at the date specified in
paragraph 1 of this Article do not have the minimum level of regulatory own
funds required pursuant to Article 17(1) and (2). However, institutions wishing
to operate pension schemes on a cross-border basis, within the meaning of
Article 20, may not do so until they comply with the rules of this Directive.
4. Member States may
postpone until 23 September 2010 the application of Article 18(1)(f) to
institutions located in their territory. However, institutions wishing to
operate pension schemes on a cross-border basis, within the meaning of Article
20, may not do so until they comply with the rules of this Directive.
Article 23
Entry in
force
This Directive shall
enter into force on the day of its publication in the Official Journal of
the European Union.
ò new
Article 76
Amendment
of Directive 2009/138/EC
In Directive
2009/138/EC the following Article 306a is inserted:
"Article 306a
Where, on the
entry into force of this Directive, home Member States applied provisions
referred to in Article 4 of Directive ..../../EU of the European Parliament and
of the Council[50],
such home Member States may continue to apply the laws, regulations and
administrative provisions that had been adopted by them with a view to
complying with Articles 1 to 19, Articles 27 to 30, Articles 32 to 35 and Articles
37 to 67 of Directive 2002/83/EC as in force on 31 December 2015 for a transitional
period expiring on 31 December 2022. 
Where a home Member State continues to apply those laws, regulations and administrative provisions, insurance
undertakings in that home Member State shall calculate their solvency capital requirement
as the sum of the following:
(a) a notional solvency capital requirement with respect to their
insurance activity, calculated without the occupational retirement provision
business under Article 4 of Directive …./../EU, 
(b) the solvency margin with respect to the occupational retirement provision
business, calculated in accordance with the laws, regulations and
administrative provisions that have been adopted to comply with Article 28 of
Directive 2002/83/EC.
By 31 December
2017, Commission shall submit a report to the European Parliament and to the
Council, on whether the period referred to in the first paragraph should be
extended."
Article 77
Exercise of the delegation
1. The power to
adopt delegated acts is conferred on the Commission subject to the conditions laid
down in this Article.
2. The delegation
of powers referred to in Article 24(3), Article 30 and Article 54 may be
revoked at any time by the European Parliament or by the Council. A decision of
revocation shall put an end to the delegation of the power specified in that
decision. It shall take effect the day following the publication of the
decision in the Official Journal of the European Union or at a later date
specified therein. It shall not affect the validity of any delegated acts
already in force.
3. As soon as it
adopts a delegated act, the Commission shall notify it simultaneously to the
European Parliament and to the Council.
4. A delegated
act adopted pursuant to Article 24(3), Article 30 and Article 54 shall enter
into force only if no objection has been expressed either by the European
Parliament or the Council within a period of three months of notification of
that act to the European Parliament and the Council or if, before the expiry of
that period, the European Parliament and the Council have both informed the
Commission that they will not object. That period shall be extended by three
months at the initiative of the European Parliament or the Council.
Article 78
Transposition
1. Member States
shall bring into force the laws, regulations and administrative provisions
necessary to comply with Article 6(c), (i) to (p), Article 12(4) second and
third subparagraph, Article 12(10), Article 13, Article 20(6) and (8), Articles
21 to 30, Article 33, Article 35(1) and (2), Article 35(4) to (7), Article 36
to 38, Articles 39(1) and (3), Articles 40 to 53, Articles 55 to 57, Article 58(1),
Articles 59 to 61, Article 63, Article 64(1)(b) to (d) and (f), Articles 65 to 71
of this Directive by 31 December 2016. They shall forthwith communicate to the
Commission the text of those provisions.
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. They shall also include a statement
that references in existing laws, regulations and administrative provisions to
the directives repealed by this Directive shall be construed as references to
this Directive. Member States shall determine how such reference is to be made
and how that statement is to be formulated.
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 79
Repeal
Directive 2003/41/EC, as amended by the Directives listed in Annex I,
Part A, is repealed with effect from 1 January 2017 without prejudice to the
obligations of the Member States relating to the time-limits for transposition
into national law and application of the Directives set out in Annex I, Part B.
References to the repealed Directive 2003/41/EC shall be construed as
references to this Directive and shall be read in accordance with the
correlation table in Annex II.
Article 80
Entry into force
This Directive shall enter into force on the twentieth day following that
of its publication in the Official Journal of the European Union.
Articles 1 to 5, Article
6(a), (b), (d) to (h) and (j), Articles 7 to 11, Article 12(1) to (9), Articles
14 to 19, Article 20(1) to (5) and (7), Articles 31 and 32, Article 34, Article
35(2) and (3), Article 39(1) and (3), Article 58(2), Article 62, Article 64(1)(a)
and (e) and Article 64(2) shall apply from 1 January 2017.
ê 2003/41/EC
Article 2481
Addressees
This
Directive is addressed to the Member States.
Done at Brussels,
For the European Parliament                        For
the Council
The President                                                 The
President
LEGISLATIVE FINANCIAL STATEMENT
1.           FRAMEWORK OF THE
PROPOSAL/INITIATIVE
1.1.        Title of the
proposal/initiative
Directive of the European Parliament and of the Council on the
activities and supervision of institutions for occupational retirement
provision (IORP2) (recast).
1.2.        Policy area(s) concerned
in the ABM/ABB structure[51]
Financial
Services and Capital Markets
1.3.        Nature of the
proposal/initiative
The proposal/initiative relates to the extension of
an existing action (revision of Directive 2003/41/EC).
1.4.        Objective(s)
1.4.1.     The Commission's
multiannual strategic objective(s) targeted by the proposal/initiative 
To increase the
safety and the efficiency of the financial markets; to boost the internal
market for financial services.
1.4.2.     Specific objective(s) and
ABM/ABB activity(ies) concerned 
Specific
objective No
ABM/ABB
activity(ies) concerned
Financial
Services and Capital Markets
To improve
the governance and transparency of institutions for occupational retirement
provision; to facilitate cross-border activities of IORPs.
1.4.3.     Expected result(s) and
impact
The proposal,
amending the 2003 Directive on IORPs, aims at: laying down detailed rules on
the governance of IORPs, supervisory powers over IORPs, information to be
provided by IORPs to supervisors, information to be provided by IORPs to
members and beneficiaries, investment by IORPs, IORP depositaries, cross-border
transfer of IORPs and cross-border activity of IORPs.
1.4.4.     Indicators of results and
impact 
The indicators,
as described in section 6 of the impact assessment report, include reduced
costs for employers, greater geographic coverage of IORPs, greater cross-border
activity of IORPs, fewer failures of IORPs.
1.5.        Grounds for the
proposal/initiative 
1.5.1.     Requirement(s) to be met in
the short or long term 
1.5.2.     Added value of EU
involvement
1) A regulatory
patchwork can lead to increased administrative costs and regulatory arbitrage.
2) In the
absence of action at EU level, cross-border activity of IORPs will probably
remain at the current low level.
3) A robust
regulatory framework for IORPs at EU level can foster the development of IORPs
in Member States where they currently barely exist, thus improving retuirement
provision and providing a source of savings for long-term investment.
4) Improved
provisions on governance and depositaries are anticipated to contribute to
reducing the rate of failure of IORPs.
5) Improved and
harmonised transparency provisions be beneficial for scheme members and
beneficiaries and make IORPs more comparable across borders.
1.5.3.     Lessons learned from
similar experiences in the past
The 2003
Directive on IORPs, which has been in place for ten years, has significant
gaps, which have allowed divergent supervisory practices to develop between Member States as regards governance and transparency of IORPs. These divergences discourage
cross-border mobility of workers, hinder comparability of IORPs, and act as an
obstacle to cross-border transfers and provision of services by IORPs.
1.5.4.     Compatibility and possible
synergy with other appropriate instruments
The review of
the 2003 IORP Directive was announced in the White Paper of 16 February 2012
"An Agenda for Adequate, Safe and Sustainable Pensions" and
forms a cohesive package with the other initiatives and actions outlined in
that White Paper for improved pension provision in the EU.
1.6.        Duration and financial impact
Proposal/initiative
of unlimited duration
1.7.        Management mode(s) planned[52] 
From the
2014 budget
¨ Direct management by the Commission
¨ by its
departments, including by its staff in the Union delegations; 
¨ by the
executive agencies; 
¨ Shared management with the Member States

¨ Indirect management by delegating implementation
tasks to:
¨ third
countries or the bodies they have designated;
¨
international organisations and their agencies (to be specified);
¨ the EIB and
the European Investment Fund;
ü bodies
referred to in Articles 208 and 209 of the Financial Regulation;
¨ public law
bodies;
¨ bodies
governed by private law with a public service mission to the extent that they
provide adequate financial guarantees;
¨ bodies
governed by the private law of a Member State that are entrusted with the
implementation of a public-private partnership and that provide adequate
financial guarantees;
¨ persons
entrusted with the implementation of specific actions in the CFSP pursuant to
Title V of the TEU, and identified in the relevant basic act.
Comments
EIOPA is a regulatory agency acting under
the oversight of the Commission.
2.           MANAGEMENT MEASURES 
2.1.        Monitoring and reporting
rules 
In line with
already existing arrangements EIOPA prepares regularly reports on its activity
(including internal reporting to Senior Management, Management Board reporting,
six month activity reporting to the Board of Supervisors and the production of
the annual report), and undergoes audits by the Court of Auditors and the
Internal Audit Service on its use of its resources. Monitoring and reporting of
the present proposed actions will comply with the same already existing
requirements.
2.2.        Management and control
system 
2.2.1.     Risk(s) identified 
No risks
identified.
2.2.2.     Information concerning the
internal control system set up
Management and
control systems as provided for in the EIOPA Regulation are already
implemented. EIOPA works closely together with the Internal Audit Service of
the Commission to ensure that the appropriate standards are met in all internal
control areas. These arrangements will apply also with regard to the role of
EIOPA according to the present proposal. Annual internal audit reports are sent
to the Commission, Parliamant and Council.
2.2.3.     Estimate of the costs and
benefits of the controls and assessment of the expected level of risk of error
No additional
costs are foreseen. Expect level of risk of error is low.
2.3.        Measures to prevent fraud
and irregularities 
For the purposes
of combating fraud, corruption and any other illegal activity, the provisions
of Regulation (EC) No 1073/1999 of the European Parliament and of the Council
of 25 May 1999 concerning investigations conducted by the European Anti-Fraud
Office (OLAF) applies to the EIOPA without any restriction.
EIOPA acceded to
the Interinstitutional Agreement of 25 May 1999 between the European
Parliament, the Council of the European Union and the Commission of the
European Communities concerning internal investigations by the European
Anti-Fraud Office (OLAF) and  adopted appropriate provisions for all EIOPA staff.
EIOPA is
currently working on a dedicated anti-fraud strategy and resulting action plan.
The strategy and action plan will be put in place in 2014.  EIOPA’s strengthend
actions in the area of anti-fraud will be compliant to the rules and guidance
provide by the Financial Regulation (anti-fraud measures as part of sound
financial management), OLAF’s fraud prevention policies, the provisions
provided by the Commission Anti-Fraud Strategy (COM(2011)376) as well as set
out by the Common Approach on EU decentralised agencies (July 2012) and the
related roadmap.
3.           ESTIMATED FINANCIAL
IMPACT OF THE PROPOSAL/INITIATIVE 
3.1.        Heading(s) of the
multiannual financial framework and expenditure budget line(s) affected 
Existing budget lines 
In order of multiannual financial framework headings and budget lines.
 Heading of multiannual financial framework || Budget line || Type of expenditure || Contribution 
 Number […]Heading 1a Smart and Inclusive Growth – Economic, Social and Teritorial Cohesion………………………………………...……….] || Diff./non-diff. ([53])   || from EFTA countries[54]   || from candidate countries[55]   || from third countries || within the meaning of Article 21(2)(b) of the Financial Regulation 
   || 12.0303 (budget heading 1a) European Insurance and Occupational Pensions Authority [EIOPA – Subsidy under Titles 1 and 2 (Staff and administrative expenditure)] || Non Diff. || YES || NO || NO || NO 
New budget lines requested 
In order of multiannual financial framework headings and
budget lines.
3.2.        Estimated impact on
expenditure 
No new resources will be needed. Operation appropriations which are
necessary for the implementation of this initiative will be covered by
redeployment within the contribution granted to EIOPA during the annual
budgetary procedure, in accordance with the financial programming set by the
Communication from the Commission "Programming of human and financial
resources for decentralised agencies 2014-2020" (COM (2013)519 final).
3.2.1.     Summary of estimated impact
on expenditure 
EUR million (to three decimal places)
 Heading of multiannual financial framework || Number || […][Heading……………...……………………………………………………………….] 
 DG: MARKT ||   ||   || Year 2015[56] || Year 2016 || Year 2017 || Year 2018 || Year 2019 || Year 2020 || TOTAL 
 Operational appropriations 
 12.0303   || Commitments || (1) || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
 Payments || (2) || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
 Appropriations of an administrative nature financed from the envelope for specific programmes 
 Number of budget line ||   || (3) ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations for DG MARKT || Commitments || =1+1a +3 || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
 Payments || =2+2a+3 || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
  TOTAL operational appropriations || Commitments || (4) ||   ||   ||   ||   ||   ||   ||   
 Payments || (5) ||   ||   ||   ||   ||   ||   ||   
  TOTAL appropriations of an administrative nature financed from the envelope for specific programmes || (6) ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations for HEADING <….> of the multiannual financial framework || Commitments || =4+6 || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
 Payments || =4+6 || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
If more than one heading is affected by the proposal /
initiative:
  TOTAL operational appropriations || Commitments || (4) ||   ||   ||   ||   ||   ||   ||   
 Payments || (5) ||   ||   ||   ||   ||   ||   ||   
  TOTAL appropriations of an administrative nature financed from the envelope for specific programmes || (a)                   (6) ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations under HEADINGS 1 to 4 of the multiannual financial framework (Reference amount) || Commitments || =4+6 || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
 Payments || =4+6 || 0.185 || 0.370 || 0.370 || 0.370 || 0.370 || 0.370 || 2.035 
 Heading of multiannual financial framework || 5 || " Administrative expenditure " 
EUR million (to three decimal places)
   ||   ||   || Year N || Year N+1 || Year N+2 || Year N+3 || Enter as many years as necessary to show the duration of the impact (see point 1.6) || TOTAL 
 DG: <…….> || 
  Human resources ||   ||   ||   ||   ||   ||   ||   ||   
  Other administrative expenditure ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL DG <…….> || Appropriations ||   ||   ||   ||   ||   ||   ||   ||   
 TOTAL appropriations for HEADING 5 of the multiannual financial framework || (Total commitments = Total payments) ||   ||   ||   ||   ||   ||   ||   ||   
EUR million (to three decimal places)
   ||   ||   || Year N[57]   || Year N+1 || Year N+2 || Year N+3 || Enter as many years as necessary to show the duration of the impact (see point 1.6) || TOTAL 
 TOTAL appropriations under HEADINGS 1 to 5 of the multiannual financial framework || Commitments ||   ||   ||   ||   ||   ||   ||   ||   
 Payments ||   ||   ||   ||   ||   ||   ||   ||   
3.2.2.     Estimated impact on
operational appropriations 
The proposal/initiative requires the use of operational
appropriations, as explained below:
The various tasks directly ascribed to EIOPA arising from the
legislative proposal are the following: advice to the Commission on the
preparation of the delegated acts and on the evaluation of the application of
the Directive, as preparation of the Commission's evaluation report. In
addition, EIOPA will have to monitor the application of the Directive and take
action to ensure correct implementation, in accordance with article 17 of its
founding Regulation (Council and Parliament Regulation 1094/2010), and to
resolve differences between national supervisors regarding matters of
application (article 19 of the EIOPA Regulation). In particular EIOPA may have 
to resolve disagreements between home and host supervisors regarding the
cross-border transfer of IORPs. It can also prepare guidelines and
recommendations, in accordance with article 16 of the EIOPA Regulation. In
addition, given the focus of the proposal on governance and reporting issues,
it is planned that an expert group of national supervisors will need to be
created on governance and reporting and cordinated and administered by EIOPA.
The total staff requirements of all of these tasks is estimated at 7
annual FTE staff. Four of these are for the preparation of the above-mentioned
advice to the Commission, one for administration and coordination of a new
working group on governance and transparency, and two on monitoring of
implementation and resolution of differences between national authorities.
These should all be establishment plan posts, given the difficult of recruiting
contractual agents for such specialised functions, and the increasing
difficulties of national authorities to provide seconded national experts.
3.2.3.     Estimated impact on
appropriations of an administrative nature
3.2.3.1.  Summary 
ü  The
proposal/initiative does not require the use of appropriations of an
administrative nature 
3.2.3.2.   Estimated requirements of
human resources 
ü  The
proposal/initiative does not require the use of human resources. 
Comment:
No additional human and administrative
resources will be needed in DG MARKT as a result of the proposal. Resources
currently deployed to follow directive 2003/41/EC will continue to do so. 
3.2.4.     Compatibility with the
current multiannual financial framework 
ü  Proposal/initiative
is compatible with the current multiannual financial framework.
¨ Proposal/initiative
will entail reprogramming of the relevant heading in the multiannual financial
framework.
Explain what reprogramming is required, specifying the
budget lines concerned and the corresponding amounts.
¨ Proposal/initiative
requires application of the flexibility instrument or revision of the
multiannual financial framework[58].
Explain what is required, specifying the headings and
budget lines concerned and the corresponding amounts.
Comment:
The Commission
Communication COM(2013) 519 of 10 July 2013 "Programming of human and
financial resources for decentralised agencies 2014-2020" lays down the
Commission's resource plans for decentralised agencies, including EIOPA, for
the period of the next Multiannual Financial Framework. Until 2014, EIOPA is
categorised as a "start-up phase" agency in the Communication. Section
5.1.2 of the Communication states that EIOPA's total number of posts is
expected to increase from 80 in 2013 to 112 in 2020. The settlement of the
budgetary authority for EIOPA in 2014 allows for 87 establishment plan posts.
It is expected that the present legislative proposal will enter into force in
2015, and that the 7 establishment plan posts provided for in the present
Legislative Financial Statement will be recruited at various points of time
during 2015, and will be included among the additional posts already envisaged
for the period 2014-2017. 
3.2.5.     Third-party contributions 
The proposal/initiative provides for the co-financing estimated
below:
Appropriations in EUR million (to 3 decimal places)
   || 2015 || 2016 || 2017 || 2018 || 2019 || 2020 || Total 
 National competent authorities in Member States || 0.277 || 0.554 || 0.554 || 0.554 || 0.554 || 0.554 || 3.049 
 TOTAL appropriations cofinanced || 0.277 || 0.554 || 0.554 || 0.554 || 0.554 || 0.554 || 3.049 

* These estimates are based on an average cost of an AD official of €132,000
per year. It is estimated that the 7 posts in question will be recruited at
different times during the year 2015, so the total cost is half of the full
year cost of 7 full-time staff. Amounts based on current financing mechanism in
EIOPA regulation (Member States 60%, Community 40%).
3.3.        Estimated impact on
revenue
ü  Proposal/initiative
has no financial impact on revenue.
¨ Proposal/initiative
has the following financial impact:
¨         on
own resources 
¨         on
miscellaneous revenue 
EUR million (to three decimal places)
 Budget revenue line: || Appropriations available for the current financial year || Impact of the proposal/initiative[59]   
 (b)               Year N || (c)               Year N+1 || Year N+2 || Year N+3 || Enter as many years as necessary to show the duration of the impact (see point 1.6) 
 Article …………. ||   ||   ||   ||   ||   ||   ||   ||   
For miscellaneous ‘assigned’ revenue, specify the
budget expenditure line(s) affected.
Specify the method for calculating the impact on
revenue.
Proposed establishment plan
 Function Group and Grade || Temporary Posts 
 AD16 ||   
 AD15 ||   
 AD14 ||   
 AD13 ||   
 AD12 ||   
 AD11 ||   
 AD10 || 1 
 AD9 || 1 
 AD8 || 1 
 AD7 || 2 
 AD6 || 1 
 AD5 || 1 
   ||   
 AD total || 7 
[1]               OJ L 235, 23.9.2003, p.10.
[2]               Schemes where the level of contributions, not the final
benefit is pre-defined. Individual members bear the investment and longevity
risks and often make decisions about how to mitigate these risks.
[3]               See e.g. responses to question 5 of the Commission's
Green Paper on pensions
(http://ec.europa.eu/social/main.jsp?catId=700&langId=en&consultId=3&visib=0&furtherConsult=yes);
Hewitt Associates (2010), "Feasibility Study for Creating an EU Pension
Fund for Researchers Prepared for the European Commission Research
Directorate-General"; Centre for European Economic Research, Expert Survey
on the future of DC pension plans in Europe, 2009, pg. 128.
[4]               Since 2010 the Commission has
been working together with representatives of researchers’ employers towards
the establishment of a multi-country and multi-employer IORP. The purpose of
the Pan-European pension fund for researchers is to ensure adequate and
sustainable occupational pensions for mobile and non-mobile researchers in the
EEA.
[5]               See, for example, the question from the European
Parliament to the Commission (E-002485-13) of 4 March 2013 concerning the
project to establish a cross-border IORP in the NL for members and
beneficiaries in AT.
[6]               Examples include Luxembourg’s SEPCAV (Société
d’épargne-pension à capital variable) and ASSEP (Association
d’épargne-pension), Belgium’s OFP (Organization for Financing Pensions), or the
  Netherlands’ PPI (Premium Pension Institutions).
[7]               For example, the Dutch central bank reported that since
the outbreak of the crisis 68 IORPs where compelled to curtail accrued pension
rights in April 2013; this affected 300,000 individuals (DNB, 2013, Five years
in the pensions sector: curtailment and indexation in perspective). In the UK,
IORPs that fail can be taken over by the Pension Protection Fund but in that
case the pension rights are cut by 10%.
[8]               COM (2012) 55 final, 16.2.2012.
[9]               COM (2013) 150 final, 25.3.2013.
[10]             EIOPA, "Report on QIS on IORPs", 4.7.2013
[11]             COM(2010) 2020 final, 3.3.2010.
[12]             OJ L 335, 17.12.2009, p. 1.
[13]             Alternative Investment Fund Managers Directive (OJ L
174, 1.7.2011, p. 1).
[14]             Markets in Financial Instruments Directive.
[15]             COM(2010) 301 final, 2.6.2010.
[16]             COM (2010) 365 final, 7.7.2010.
[17]             Consultation summary at: http://ec.europa.eu/social/main.jsp?catId=333&langId=en.
[18]             EIOPA-CP-11/001, 08.07.2011.
[19]             Responses to the consultations of EIOPA's advice can be
found via
https://eiopa.europa.eu/consultations/consultation-papers/2011-closed-consultations.
[20]             OJ L 331, 15.12.2010, p. 120.
[21]             OJ L 145, 31.5.2013, p. 1.
[22]             For example, the institution and the sponsoring
undertaking are located in Member State A and the social and labour law
applicable to the pension scheme is that of Member State B.
[23]             The home Member State before the transfer becomes the
host Member State after the transfer.
[24]             Initiative 17 states that "[t]he Commission will
promote the development of pension tracking services allowing people to keep
track of their pension entitlements acquired in different jobs. It will
consider, in the context of the revision of the IORP directive and the proposal
for a portability directive, how the provision of the required information for
pensions tracking can be ensured, and it will support a pilot project on
cross-border tracking."
[25]             OECD Roadmap for the good design of defined
contribution pension plans, June 2012.
[26]             Directive 2003/41/EC of the
European Parliament and of the Council of 3 June 2003 on the activities and
supervision of institutions for occupational retirement provision (OJ L 235,
23.9.2003, p. 10).
[27]             See Annex I, Part A.
[28]             OJ L 283, 28.10.1980, p. 23.
[29]             Directive 95/46/EC of the
European Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free
movement of such data (OJ L 281, 23.11.1995, p.31)
[30]             Regulation (EC) No 45/2001 of
the European Parliament and of the Council of 18 December 2000 on the
protection of individuals with regard to the processing of personal data by the
Community institutions and bodies on the free movement of such data (OJ L 8,
12.01.2001, p. 1)
[31]             Directive 2009/138/EC of the
European Parliament and of the Council of 25 November 2009 on the taking-up and
pursuit of the business of Insurance and Reinsurance (Solveny II) (OJ L 335,
17.12.2009, p. 1).
[32]             OJ C 369, 17.12.2011, p. 14.
[33]             Council Regulation (EEC) No 1408/71
of 14 June 1971 on the application of social-security schemes to employed
persons, to self-employed persons and to members of their families moving
within the Community (OJ L 149, 5.7.1971, p. 2). Regulation as last amended by
Regulation (EC) No 1386/2001 of the European Parliament and of the Council (OJ
L 187, 10.7.2001, p. 1).
[34]             Regulation (EC) No
883/2004 of the European Parliament and of the Council of 29 April 2004 on the
coordination of social security systems (OJ L 166, 30.4.2004, p. 1).
[35]             Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the
procedure for implementing Regulation (EEC) No 1408/71 on the application of
social-security schemes to employed persons, to self-employed persons and to
members of their families moving within the Community (OJ L 74, 27.3.1972, p.
1). Regulation as last amended by Commission Regulation (EC) No 410/2002 (OJ L
62, 5.3.2002, p. 17).
[36]             Regulation (EC) No
987/2009 of the European Parliament and of the Council of 16 September 2009
laying down the procedure for implementing Regulation (EC) No 883/2004 on the
coordination of social security systems (OJ L 284, 30.10.2009, p. 1).
[37]             First Council Directive 73/239/EEC of 24 July 1973 on the coordination
of laws, regulations and administrative provisions relating to the taking-up
and pursuit of the business of direct insurance other than life assurance (OJ L
228, 16.8.1973, p. 3). Directive as last amended by Directive 2002/13/EC of the
European Parliament and of the Council (OJ L 77, 20.3.2002, p. 17).
[38]             Council Directive 85/611/EEC of 20 December 1985 on the coordination
of laws, regulations 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 2001/108/EC of the European
Parliament and of the Council (OJ L 41, 13.2.2002, p. 35).
[39]             Council Directive 93/22/EEC of 10 May 1993 on investment services in
the securities field (OJ L 141, 11.6.1993, p. 27). Directive as last amended by
Directive 2000/64/EC of the European Parliament and of the Council (OJ L 290,
17.11.2000, p. 27).
[40]             Directive 2000/12/EC of the European Parliament and of the Council
of 20 March 2000 relating to the taking-up and pursuit of the business of
credit institutions (OJ L 126, 26.5.2000, p. 1). Directive as amended by
Directive 2000/28/EC (OJ L 275, 27.10.2000, p. 37).
[41]             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).
[42]             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/EEC (OJ L 145, 30.4.2004, p. 1).
[43]             Directive 2009/65/EC of
the European Parliament and of the Council of 13 July 2009 on the coordination
of laws, regulations and administrative provisions relating to undertakings for
collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009,
p. 32).
[44]             Directive 2011/61/EU of
the European Parliament and of the Council of 8 June 2011 on Alternative
Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and
Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).

[45]             Directive 2013/36/EU of 
European Parliament and of the Council of 26 June 2013 on access to the
activity of credit institutions and the prudential supervision of credit
institutions and investment firms, amending Directive 2002/87/EC and repealing
Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
[46]             OJ L 331, 15.12.2010, p. 48.
[47]             Regulation (EC) No 1060/2009 of the European Parliament
and of the Council of 16 September 2009 on credit rating agencies (OJ
L 302, 17.11.2009, p. 1.)
[48]             Directive 95/46/EC of the
European Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free
movement of such data (OJ L 281, 23.11.1995, p. 31).
[49]             OJ L 3, 7.1.2004, p. 34.
[50]             OJ
[51]             ABM: activity-based management – ABB: activity-based
budgeting.
[52]             Details of management modes and references to the
Financial Regulation may be found on the BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html
[53]             Diff. = Differentiated appropriations / Non-Diff. =
Non-differentiated appropriations.
[54]             EFTA: European Free Trade Association. 
[55]             Candidate countries and, where applicable, potential
candidate countries from the Western Balkans.
[56]             These estimates are based on an average cost of an AD
official of €132,000 per year. It is estimated that the 7 posts in question
will be recruited at different times during the year 2015, so the total cost is
half of the full year cost of 7 full-time staff. Amounts based on current
financing mechanism in EIOPA regulation (Member States 60%, Community 40%).
[57]             Year N is the year in which implementation of the
proposal/initiative starts.
[58]             See points 19 and 24 of the Interinstitutional
Agreement (for the period 2007-2013).
[59]             As regards traditional own resources (customs duties,
sugar levies), the amounts indicated must be net amounts, i.e. gross amounts
after deduction of 25% for collection costs.
ANNEX I
Part A
Repealed Directive with list of its
successive amendments
(referred to in Article 79)
 Directive 2003/41/EC of the European Parliament and of the Council (OJ L 235, 23.9.2003, p.10) ||   || 
 || Directive 2009/138/EC of the European Parliament and of the Council (OJ L 335, 17.12.2009, p. 1) Directive 2010/78/EU of the European Parliament and of the Council (OJ L 331, 15.12.2010, p. 120), Directive 2011/61/EU of the European Parliament and of the Council (OJ L 174, 1.7.2011, p.1), Directive 2013/14/EU of the European Parliament and of the Council (OJ L 145, 31.5.2013, p. 1), || Article 303 only     Article 4 only   Article 62 only     Article 1 only 
Part B
List of time-limits for
transposition into national law and application
(referred to in Article 79)
 Directive || Time-limit for transposition || Date of application 
 2003/41/EC 2009/138/EC 2010/78/EU 2011/61/EU 2013/14/EU || 23.09.2005 31.03.2015 31.12.2011 22.07.2013 21.12.2014 || 23.09.2005 01.01.2016 31.12.2011 22.07.2013 21.12.2014 
_____________
ANNEX II
Correlation Table
 Directive 2003/41/EC || This Directive 
 Article 1 Article 2 Article 3 Article 4 Article 5 Article 6(a) and (b) Article 6(c)   Article 6(d) to (h) Article 6(i)   Article 6(j)   Article 7 Article 8 Article 9(1)(a) Article 9(1)(b) and (c)   Article 9(1)(d) Article 9(1)(e) Article 9(2) Article 9(3) Article 9(5) Article 20(1) to (9)   Article 20(10)     Article 15(1) to (5) Article 15(6) Article 16 Article 17 Article 17a(1) to (4) Article 17a(5) Article 17b Article 17c Article 17d Article 18(1) Article 18(1a) Article 18(2) to (4) Article 18(5), first subparagraph Article 18(5), second and third subparagraphs   Article 18(6) Article 18(7)                       Article 10 Article 12 Article 9(4)   Article 19(1)   Article 19(2), first subparagraph Article 19(2), second subparagraph Article 19(3)       Article 11(1)   Article 9(1)(f)   Article 11(2)(a) Article 11(2)(b)                                         Article 11(3) Article 11(4)(a) and (b) Article 11(4)(c) and (d)       Article 14(1) Article 14(2), first subparagraph Article 14(4), second subparagraph Article 14(2), second subparagraph Article 14(3) Article 14(4), first subparagraph Article 14(5)   Article 13(1)(a) Article 13(1)(b) to (d)   Article 13(2)               Article 20(11), first subparagraph Article 20(11), second subparagraph Article 20(11), third and fourth subparagraphs Article 21(1) and (2) Article 21(2a) Article 21(3)       Article 21a Article 21b Article 22 Article 23         Article 24 || Article 1 Article 2 Article 3 Article 4 Article 5 Article 6(a) and (b)   Article 6(c) Article 6(d) to (h)   Article 6(i)   Article 6(j) to (p) Article 7 Article 8 Article 9   Article 10   Article 11(1) Article 11(2)       Article 12(1) to (8) Article 12(9) Article 12(10) Article 13 Article 14(1) to (5)   Article 15 Article 16 Article 17(1) to (4)   Article 18   Article 19 Article 20(1) Article 20(2) Article 20(3) to (5) Article 20(6), first subparagraph   Article 20(6), second subparagraph Article 20(7)   Article 20(8) Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33(1) Article 33(2) to (7) Article 34 Article 35(1) and (2) Article 35(3)   Article 35(4) Article 35(5) to (8) Article 36 Article 37 Article 38(1) Article 38(2) Article 39(1) Article 39(2)   Article 39(3) Article 39(4) Article 40 Article 41 Article 42 Article 43 Article 44 Article 45 Article 46 Article 47 Article 48 Article 49 Article 50 Article 51 Article 52 Article 53 Article 54 Article 55 Article 56 Article 57 Article 58(1)   Article 58(2)(a) and (b)   Article 59 Article 60 Article 61 Article 62(1) Article 62(2) Article 62(3) Article 62(4) Article 62(5) Article 62(6) Article 62(7) Article 63 Article 64(1)(a)   Article 64(1)(b) to (f) Article 64(2) Article 65 Article 66 Article 67 Article 68 Article 69 Article 70 Article 71 Article 72(1) Article 72(2)   Article 73(1) and (2) Article 73(3) Article 73(4) Article 74 Article 75 Article 76         Article 77 Article 78 Article 79 Article 80 Article 81 
_____________