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Article 4 - Implementing Regulation 2015/499

Article 4

Supporting evidence regarding the criteria for approval

The supporting evidence shall contain sufficient information to allow the supervisory authority to assess whether the application complies with the criteria determined in Article 90 of Directive 2009/138/EC and Articles 62 to 65 of Commission Delegated Regulation (EU) 2015/35 (3). It shall contain at least the information described in the second to seventh paragraphs of this Article.

The insurance or reinsurance undertaking shall provide information regarding the nature of ancillary own-fund item and the loss absorbing capacity of the basic own-fund item into which the ancillary own-fund item converts on being called up, including the following:

(a)

the item's legal or contractual terms, together with the terms of any connected arrangement and evidence that the counterparty has entered into, or will enter into, the contract and any connected arrangement;

(b)

evidence that the contract and any connected arrangements are legally binding and enforceable in all relevant jurisdictions, based on a legal opinion;

(c)

the period during which the contract is in effect and, if different, the period during which the insurance or reinsurance undertaking may call upon the item;

(d)

confirmation that the ancillary own-fund item, once that item has been called up and paid in, would display all of the features of a basic own-fund item classified in Tier 1 in accordance with Article 71 of Delegated Regulation (EU) 2015/35, or all of the features of a basic own-fund item classified in Tier 2 in accordance with Article 73 of the Delegated Regulation (EU) 2015/35;

(e)

confirmation that the item's contractual terms do not contain any provision which might create a disincentive for the insurance or reinsurance undertaking to call upon the item to absorb losses or place any constraint upon its ability to be callable on demand;

(f)

confirmation that the ancillary own-fund item or its benefits would only be available to the insurance or reinsurance undertaking and would not be transferrable or assignable to any other party, or be able to be encumbered in any other way;

(g)

any factors which restrict the conditions under which the insurance or reinsurance undertaking might seek to call upon the item, including but not limited to conditions of stress specific to the insurance and reinsurance undertaking or wider market stress;

(h)

whether the insurance or reinsurance undertaking has, or in the future may have, any obligation to, or any expectation or understanding that it will pay funds or provide any other benefit to the counterparty or to a third party in connection with the item, other than in the event of repayment of a basic own-fund item which would satisfy the features in Article 71(1)(h), and Article 73(1)(d) of Delegated Regulation (EU) 2015/35;

(i)

a copy of the medium term capital management plan including how the item will contribute to the insurance or reinsurance undertaking's existing capital structure, and how the item might enable the insurance or reinsurance undertaking to meet its existing or future capital requirements.

Except where Article 63(6) of the Delegated Regulation (EU) 2015/35 applies and the status of a group of counterparties may be assessed as though it were a single counterparty, the insurance or reinsurance undertaking shall provide information regarding the status of each counterparty including the following:

(a)

the names and a description of each counterparty, including the nature of any relationship between the insurance or reinsurance undertaking and the counterparty;

(b)

an assessment of the risk of default of the counterparties in order to support the assessment by the supervisory authority specified in Article 63(2) of the Delegated Regulation (EU) 2015/35;

(c)

an assessment of the liquidity position of the counterparties in order to support the assessment by the supervisory authority specified in Article 63(3) of Delegated Regulation (EU) 2015/35;

(d)

an assessment of the counterparties' willingness to pay in order to support the supervisory assessment specified in Article 63(4) of the Delegated Regulation (EU) 2015/35;

(e)

a description of the range of circumstances in which the insurance or reinsurance undertaking might seek to call upon the item including current expectations as to when the item might be called prior to or at the point of non-compliance with the Solvency Capital Requirement or Minimum Capital Requirement;

(f)

information on any other factors relevant to the status of the counterparties to support the assessment by the supervisory authority specified in Article 63(5) of Delegated Regulation (EU) 2015/35.

Where the counterparties are treated as a group of counterparties in accordance with Article 63(6) of Delegated Regulation (EU) 2015/35, the information in points (a) to (f) of the third paragraph shall be provided in respect of the group of counterparties.

Where the counterparty is a member of the same group or subgroup as the insurance or reinsurance undertaking by virtue of Article 213 of Directive 2009/138/EC and has commitments under ancillary own-fund items to different entities within the group, the information in points (b) to (f) of the third paragraph shall include evidence of the ability of the counterparty to satisfy multiple calls on ancillary own-funds items at the same time, having regard to the circumstances and the entities of the group.

The insurance or reinsurance undertaking shall provide information regarding the recoverability of the funds, including the following:

(a)

details of arrangements which might enhance the recoverability of the item including the availability of collateral;

(b)

details of whether national law, in any relevant jurisdiction, prevents a call being made or satisfied, including in the event of resolution, administration or insolvency proceedings being initiated in respect of the insurance or reinsurance undertaking;

(c)

details of arrangements or circumstances that might prevent a call being made or satisfied in deteriorating financial conditions including non-compliance with the Solvency Capital Requirement or Minimum Capital Requirement.

The insurance or reinsurance undertaking shall provide information regarding past calls including the following:

(a)

information on its experience of past calls or the collection of other funds due from the same or similar counterparties in the same or similar circumstances;

(b)

all relevant available market data relating to past calls or the collection of other funds due from the same or similar counterparties in the same or similar circumstances;

(c)

an assessment as to the relevance and reliability of the information described in points (a) and (b) as regards the expected outcome of future calls by the insurance or reinsurance undertaking.

The insurance or reinsurance undertaking shall provide a description of the processes it has in place to identify any future changes, as specified in Article 62(1)(d) of the Delegated Regulation (EU) 2015/35, which may have the effect of reducing the loss-absorbency of the ancillary own-fund item. The description shall include the following:

(a)

how it intends to identify changes to:

(i)

the structure or contractual terms of the arrangement, including the cancellation or expiry of an ancillary own-fund item or the use or call up partly or wholly of an ancillary own-fund item;

(ii)

the status of the counterparties concerned, including the default of a counterparty;

(iii)

the recoverability of the ancillary own-fund item, including calls on other ancillary own-fund items provided by the same counterparties;

(b)

how it intends to inform the supervisory authority of changes identified, including what mechanisms it has put in place to identify when the change should be escalated to the administrative, management or supervisory body of the undertaking and to the supervisory authority.

The insurance or reinsurance undertaking shall include documentary evidence of its internal decision-making process related to the application.


(3)  Commission Delegated Regulation (EU) 2015/35 of 10 October 2014 supplementing Directive 2009/138/EC of the European Parliament and of the Council on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 12, 17.1.2015, p. 1).