Article 65
Product intervention powers of EIOPA
1.
In accordance with Article 9(2) of Regulation (EU) No 1094/2010, EIOPA shall monitor the market for PEPPs which are marketed, distributed or sold in the Union.
2.
In accordance with Article 9(5) of Regulation (EU) No 1094/2010, EIOPA may, where the conditions in paragraphs 3 and 4 of this Article are fulfilled, temporarily prohibit or restrict in the Union the marketing, distribution or sale of certain PEPPs or PEPPs with certain specified features.
A prohibition or restriction may apply in circumstances, or be subject to exceptions, to be specified by EIOPA.
3.
EIOPA shall take a decision under paragraph 2 of this Article after consulting the other ESAs, where appropriate, and only if all of the following conditions are fulfilled:
(a)
the proposed action addresses a significant PEPP saver protection concern, including with respect to the long-term retirement nature of the product, or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union;
(b)
regulatory requirements under Union law that are applicable to PEPPs do not address the threat;
(c)
a competent authority or competent authorities have not taken action to address the threat or the actions that have been taken do not adequately address the threat.
Where the conditions set out in the first subparagraph are fulfilled, EIOPA may impose the prohibition or restriction referred to in paragraph 2 on a precautionary basis before a PEPP has been marketed, distributed or sold to PEPP customers.
4.
When taking action under this Article, EIOPA shall ensure that the action does not:
(a)
have a detrimental effect on the efficiency of financial markets or on PEPP savers that is disproportionate to the benefits of the action; or
(b)
create a risk of regulatory arbitrage.
Where a competent authority or competent authorities have taken a measure under Article 63, EIOPA may take any of the measures referred to in paragraph 2 of this Article without issuing the opinion provided for in Article 64.
5.
Before deciding to take any action under this Article, EIOPA shall notify competent authorities of the action it proposes.
6.
EIOPA shall publish on its website notice of any decision to take any action under this Article. That notice shall specify details of the prohibition or restriction and specify a time after the publication of the notice from which the measures will take effect. A prohibition or restriction shall only apply to action taken after the measures take effect.
7.
EIOPA shall review a prohibition or restriction imposed under paragraph 2 at appropriate intervals and at least every three months. If the prohibition or restriction is not renewed after that three-month period, it shall expire.
8.
Any action taken by EIOPA in accordance with this Article shall take precedence over any previous action taken by a competent authority.
9.
The Commission shall adopt delegated acts in accordance with Article 72 to supplement this Regulation with criteria and factors to be applied by EIOPA in determining when there is a significant PEPP saver protection concern, including with respect to the long-term retirement nature of the product, or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system of the Union referred to in point (a) of paragraph 3 of this Article.
Those criteria and factors shall include:
(a)
the degree of complexity of the PEPP and the relation to the type of PEPP saver to whom it is marketed and sold;
(b)
the degree of innovation of a PEPP, an activity or a practice;
(c)
the leverage a PEPP or practice provides;