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Document 02016L2341-20240109
Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (recast) (Text with EEA relevance)Text with EEA relevance
Consolidated text: Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (recast) (Text with EEA relevance)Text with EEA relevance
Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (recast) (Text with EEA relevance)Text with EEA relevance
02016L2341 — EN — 09.01.2024 — 001.001
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DIRECTIVE (EU) 2016/2341 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (recast) (OJ L 354 23.12.2016, p. 37) |
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DIRECTIVE (EU) 2023/2864 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2023 |
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DIRECTIVE (EU) 2016/2341 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 14 December 2016
on the activities and supervision of institutions for occupational retirement provision (IORPs)
(recast)
(Text with EEA relevance)
TITLE I
GENERAL PROVISIONS
Article 1
Subject matter
This Directive lays down rules for the taking-up and pursuit of activities carried out by institutions for occupational retirement provision (IORPs).
Article 2
Scope
This Directive shall not apply to:
institutions which operate on a pay-as-you-go basis;
institutions where employees of the sponsoring undertaking 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;
companies using book-reserve schemes with a view to paying out retirement benefits to their employees.
Article 3
Application to IORPs operating social security schemes
IORPs which also operate compulsory employment-related pension schemes which are considered to be social security schemes covered by Regulations (EC) No 883/2004 and (EC) No 987/2009 shall be covered by this Directive in respect of their non-compulsory occupational retirement provision business. In that case, the liabilities and 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 2009/138/EC
Home Member States may choose to apply the provisions of Articles 9 to 14, Articles 19 to 22, Article 23(1) and (2), and Articles 24 to 58 of this Directive to the occupational retirement provision business of life insurance undertakings in accordance with points (a)(i) to (iii) of Article 2(3) and points (b)(ii) to (iv) of Article 2(3) of Directive 2009/138/EC. In that case, all assets and liabilities corresponding to the occupational retirement provision business shall be ring-fenced, managed and organised separately from the other activities of the life insurance undertakings, without any possibility of transfer.
In the case referred to in the first paragraph of this Article, and only insofar as their occupational retirement provision business is concerned, life insurance undertakings shall not be subject to Articles 76 to 86, Article 132, Article 134(2), Article 173, Article 185(5), Article 185(7) and (8) and Article 209 of Directive 2009/138/EC.
The home Member State shall ensure that either the competent authorities, or the authorities responsible for supervision of life insurance undertakings covered by Directive 2009/138/EC, as part of their supervisory work, verify the strict separation of the relevant occupational retirement provision business.
Article 5
Small IORPs and statutory schemes
With the exception of Articles 32 to 35, Member States may choose not to apply this Directive, in whole or in part, to any IORP registered or authorised in their territories which operates pension schemes which together have less than 100 members in total. Subject to Article 2(2), such IORPs shall nevertheless be given the right to apply this Directive on a voluntary basis. Article 11 may be applied only if all the other provisions of this Directive apply. Member States shall apply Article 19(1) and Article 21(1) and (2) to any IORP registered or authorised in their territories which operates pension schemes which together have more than 15 members in total.
Member States may choose to apply any of Articles 1 to 8, Article 19 and Articles 32 to 35 to institutions where occupational retirement provision is made under statute, pursuant to national law, and is guaranteed by a public authority.
Article 6
Definitions
For the purposes of this Directive:
‘institution for occupational retirement provision’, or ‘IORP’, 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, individually or collectively, in compliance with the law of the home and host Member States,
and which carries out activities directly arising therefrom;
‘pension scheme’ means a contract, an agreement, a trust deed or rules stipulating which retirement benefits are granted and under which conditions;
‘sponsoring undertaking’ means any undertaking or other body, regardless of whether it includes or consists of one or more legal or natural persons, which acts as an employer or in a self-employed capacity or any combination thereof and which offers a pension scheme or pays contributions to an IORP;
‘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 may take the form of payments for life, payments made for a temporary period, a lump sum, or any combination thereof;
‘member’ means a person, other than a beneficiary or a prospective member, whose past or current occupational activities entitle or will entitle him/her to retirement benefits in accordance with the provisions of a pension scheme;
‘beneficiary’ means a person receiving retirement benefits;
‘prospective member’ means a person who is eligible to join a pension scheme;
‘competent authority’ means a national authority designated to carry out the duties provided for in this Directive;
‘biometric risks’ mean risks linked to death, disability and longevity;
‘home Member State’ means the Member State in which the IORP has been registered or authorised and in which its main administration is located in accordance with Article 9;
‘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 or beneficiaries;
‘transferring IORP’ means an IORP transferring all or a part of a pension scheme's liabilities, technical provisions, and other obligations and rights, as well as corresponding assets or cash equivalent thereof, to an IORP registered or authorised in another Member State;
‘receiving IORP’ means an IORP receiving all or a part of a pension scheme's liabilities, technical provisions, and other obligations and rights, as well as corresponding assets or cash equivalent thereof, from an IORP registered or authorised in another Member State;
‘regulated market’ means a regulated market as defined in point (21) of Article 4(1) of Directive 2014/65/EU;
‘multilateral trading facility’ or ‘MTF’ means a multilateral trading facility or MTF as defined in point (22) of Article 4(1) of Directive 2014/65/EU;
‘organised trading facility’ or ‘OTF’ means an organised trading facility or OTF as defined in point (23) of Article 4(1) of Directive 2014/65/EU;
‘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 and for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
‘key function’, within a system of governance, means a capacity to undertake practical tasks comprising the risk management function, the internal audit function, and the actuarial function;
‘cross-border activity’ means operating a pension scheme where the relationship between the sponsoring undertaking, and the members and beneficiaries concerned, is governed by the social and labour law relevant to the field of occupational pension schemes of a Member State other than the home Member State.
Article 7
Activities of an IORP
Member States shall require IORPs registered or authorised within their territories to limit their activities to retirement-benefit related operations and activities arising therefrom.
When, in accordance with Article 4, a life 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.
As a general principle, IORPs shall, where relevant, have regard to the aim of having an equitable spread of risks and benefits between generations in their activities.
Article 8
Legal separation between sponsoring undertakings and IORPs
Member States shall ensure that there is a legal separation between a sponsoring undertaking and an IORP registered or authorised in their territories in order that the assets of the IORP are safeguarded in the interests of members and beneficiaries in the event of bankruptcy of the sponsoring undertaking.
Article 9
Registration or authorisation
The location of the main administration refers to the place where the main strategic decisions of an IORP are made.
Article 10
Operating requirements
Member States shall, in respect of every IORP registered or authorised in their territories, ensure that:
the IORP has implemented properly constituted rules regarding the operation of any pension scheme;
where the sponsoring undertaking guarantees the payment of the retirement benefits, it is committed to regular financing.
Article 11
Cross-border activities and procedures
An IORP shall notify its intention to carry out cross-border activity to the competent authority of the home Member State. Member States shall require IORPs to provide the following information when effecting the notification:
the name of the host Member State(s), which shall, where applicable, be identified by the sponsoring undertaking;
the name and the location of the main administration of the sponsoring undertaking;
the main characteristics of the pension scheme to be operated for the sponsoring undertaking.
The reasoned decision referred to in the first subparagraph shall be issued within three months of receiving all the information referred to in paragraph 3.
Article 12
Cross-border transfers
The transfer shall be subject to prior approval by:
a majority of members and a majority of the beneficiaries concerned or, where applicable, by a majority of their representatives. The majority shall be defined in accordance with national law. The information on the conditions of the transfer shall be made available to the members and beneficiaries concerned and, where applicable, to their representatives, in a timely manner by the transferring IORP before the application referred to in paragraph 4 is submitted; and
the sponsoring undertaking, where applicable.
The application for the authorisation of transfer referred to in paragraph 4 shall contain the following information:
the written agreement between the transferring and the receiving IORPs setting out the conditions of the transfer;
a description of the main characteristics of the pension scheme;
a description of the liabilities or technical provisions to be transferred, and other obligations and rights, as well as corresponding assets or cash equivalent thereof;
the names and the locations of the main administrations of the transferring and the receiving IORPs and the Member States in which each IORP is registered or authorised;
the location of the main administration of the sponsoring undertaking and the name of the sponsoring undertaking;
evidence of the prior approval in accordance with paragraph 3;
where applicable, the names of the Member States whose social and labour law relevant to the field of occupational pension schemes is applicable to the pension scheme concerned.
The competent authority of the home Member State of the receiving IORP shall only assess whether:
all the information referred to in paragraph 5 has been provided by the receiving IORP;
the administrative structure, the financial situation of the receiving IORP and the good repute or professional qualifications or experience of the persons running the receiving IORP are compatible with the proposed transfer;
the long term interests of the members and beneficiaries of the receiving IORP and the transferred part of the scheme are adequately protected during and after the transfer;
the technical provisions of the receiving IORP are fully funded at the date of the transfer, where the transfer results in a cross-border activity; and
the assets to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred, in accordance with applicable rules in the home Member State of the receiving IORP.
The competent authority of the home Member State of the transferring IORP shall only assess whether:
in the case of a partial transfer of the pension scheme's liabilities, technical provisions, and other obligations and rights, as well as corresponding assets or cash equivalent thereof, the long term interests of the members and beneficiaries of the remaining part of the scheme are adequately protected;
the individual entitlements of the members and beneficiaries are at least the same after the transfer;
the assets corresponding to the pension scheme to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred, in accordance with the applicable rules in the home Member State of the transferring IORP.
Where the transfer results in a cross-border activity, the competent authority of the home Member State of the transferring IORP shall also inform the competent authority of the home Member State of the receiving IORP of the requirements of social and labour law relevant to the field of occupational pension schemes under which the pension scheme must be operated and of the information requirements of the host Member State referred to in Title IV which shall apply to the cross-border activity. This shall be communicated within a further four weeks.
The competent authority of the home Member State of the receiving IORP shall communicate this information to the receiving IORP within one week of its receipt.
TITLE II
QUANTITATIVE REQUIREMENTS
Article 13
Technical provisions
The calculation of the technical provisions shall be executed and certified by an actuary or by another specialist in that field, including an auditor, where permitted by national law, on the basis of actuarial methods recognised by the competent authorities of the home Member State, according to the following principles:
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 IORP. 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;
the maximum rates of interest used shall be chosen prudently and determined in accordance with any relevant rules of the home Member State. Those prudent rates of interest shall be determined by taking into account:
the yield on the corresponding assets held by the IORP and the projected future investment returns;
the market yields of high-quality bonds, government bonds, European Stability Mechanism bonds, European Investment Bank (EIB) bonds or European Financial Stability Facility bonds, or;
a combination of points (i) and (ii);
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;
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.
Article 14
Funding of technical provisions
The home Member State may allow an IORP, for a limited period of time, to have insufficient assets to cover the technical provisions. In this case, the competent authorities shall require the IORP to adopt a concrete and realisable recovery plan with a timeline in order to ensure that the requirements of paragraph 1 are met again. The plan shall be subject to the following conditions:
the IORP 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;
in drawing up the plan, account shall be taken of the specific situation of the IORP, 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;
in the event of winding up of a pension scheme during the period referred to in the first sentence of this paragraph, the IORP shall inform the competent authorities of the home Member State. The IORP shall establish a procedure in order to transfer the assets and the corresponding liabilities of that scheme to another IORP, an insurance undertaking or other appropriate 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.
Article 15
Regulatory own funds
Article 16
Available solvency margin
The available solvency margin shall consist of the assets of the IORP free of any foreseeable liabilities, less any intangible items, including:
the paid-up share capital or, in the case of an IORP 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:
the memorandum and articles of association must stipulate that payments may be made from those accounts to members of the mutual undertaking only insofar 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;
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
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 referred to in points (i) and (ii);
reserves (statutory and free) not corresponding to underwriting liabilities;
the profit or loss brought forward after deduction of dividends to be paid; and
insofar 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 IORP.
Member States may provide that the available solvency margin may also comprise:
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 IORP, 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;
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:
they must not be repaid on the initiative of the bearer or without the prior consent of the competent authority;
the contract of issue must enable the IORP to defer the payment of interest on the loan;
the lender's claims on the IORP must rank entirely after those of all non-subordinated creditors;
the documents governing the issue of the securities must provide for the loss-absorption capacity of the debt and unpaid interest, while enabling the IORP to continue its business; and
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:
only fully paid-up funds shall be taken into account;
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 IORP 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 IORP and its available solvency margin will not fall below the required level;
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 IORP 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 IORP's available solvency margin will not fall below the required level;
the loan agreement shall not include any clause providing that in specified circumstances, other than the winding-up of the IORP, the debt will become repayable before the agreed repayment dates; and
the loan agreement may be amended only after the competent authorities have declared that they have no objection to the amendment.
Upon application, with supporting evidence, by the IORP to the competent authority of the home Member State and with the agreement of that competent authority, the available solvency margin may also comprise:
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;
any hidden net reserves arising out of the valuation of assets, insofar as such hidden net reserves are not of an exceptional nature;
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 insurance 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.
Article 17
Required solvency margin
The required solvency margin shall be equal to the sum of the following results:
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;
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 IORP 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 IORP'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 %.
For assurances linked to investment funds and covered by points (a)(i) and (ii) of Article 2(3) of Directive 2009/138/EC and for the operations referred to in points (b)(iii) to (v) of Article 2(3) of Directive 2009/138/EC, the required solvency margin shall be equal to the sum of the following:
insofar as the IORP bears an investment risk, a 4 % fraction of the technical provisions, calculated in compliance with paragraph 2(a);
insofar as the IORP 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);
insofar as the IORP 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 assurances and operations;
insofar as the IORP covers a death risk, a 0,3 % fraction of the capital at risk calculated in compliance with paragraph 2(b).
Article 18
Required solvency margin for the purpose of Article 17(3)
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 50 000 000 , 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 IORP after deduction of amounts recoverable under reinsurance and the gross amount of claims. That ratio shall be no less than 50 %.
The claims basis shall be calculated, as follows:
Article 19
Investment rules
Member States shall require IORPs registered or authorised in their territories to invest in accordance with the ‘prudent person’ rule and in particular in accordance with the following rules:
the assets shall be invested in the best long-term interests of members and beneficiaries as a whole. In the case of a potential conflict of interest, an IORP, or the entity which manages its portfolio, shall ensure that the investment is made in the sole interest of members and beneficiaries;
within the prudent person rule, Member States shall allow IORPs to take into account the potential long-term impact of investment decisions on environmental, social, and governance factors;
the assets shall be invested in such a manner as to ensure the security, quality, liquidity and profitability of the portfolio as a whole;
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;
investment in derivative instruments shall be possible insofar as such instruments contribute to a reduction in 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 an IORP's assets. IORPs shall also avoid excessive risk exposure to a single counterparty and to other derivative operations;
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 an IORP to excessive risk concentration;
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.
Where an IORP is sponsored by a number of undertakings, investment in those 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 (f) and (g) to investment in government bonds.
However, Member States shall not prevent IORPs from:
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, or through MTFs or OTFs, and deciding on the relative weight of those securities in their investment portfolio. However, provided that it is prudentially justified, Member States may apply a lower limit of no lower than 35 % to IORPs which operate pension schemes with a long-term interest rate guarantee, bear the investment risk and themselves provide for the guarantee;
investing up to 30 % of the assets covering technical provisions in assets denominated in currencies other than those in which the liabilities are expressed;
investing in instruments that have a long-term investment horizon and are not traded on regulated markets, MTFs or OTFs;
investing in instruments that are issued or guaranteed by the EIB provided in the framework of the European Fund for Strategic Investments, European Long-term Investment Funds, European Social Entrepreneurship Funds and European Venture Capital Funds.
TITLE III
CONDITIONS GOVERNING ACTIVITIES
CHAPTER 1
System of governance
Article 20
Responsibility of the management or supervisory body
Article 21
General governance requirements
Article 22
Requirements for fit and proper management
Member States shall require IORPs to ensure that persons who effectively run the IORP, persons who carry out key functions and, where applicable, persons or entities to which a key function has been outsourced in accordance with Article 31 fulfil the following requirements when carrying out their tasks:
the requirement to be fit:
for persons who effectively run the IORP, this means their qualifications, knowledge and experience are collectively adequate to enable them to ensure a sound and prudent management of the IORP;
for persons who carry out the actuarial or internal audit key functions this means their professional qualifications, knowledge and experience are adequate to properly carry out their key functions;
for persons who carry out other key functions this means their qualifications, knowledge and experience are adequate to properly carry out their key functions; and
the requirement to be proper: they are of good repute and integrity.
However, in home Member States where there is no provision for declarations on oath to be made the nationals of other Member States concerned shall be allowed to produce a solemn declaration made by him or her before a competent judicial or administrative authority in the home Member State or the Member State of which they are a national 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.
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, 4 and 5 are to be submitted in support of an application to pursue the activities referred to in Article 11 in the territory of that Member State.
Article 23
Remuneration policy
When establishing and applying the remuneration policy referred to in paragraph 1, IORPs shall comply with the following principles:
the remuneration policy shall be established, implemented and maintained in line with the activities, risk profile, objectives, and the long-term interest, financial stability and performance of the IORP as a whole, and shall support the sound, prudent and effective management of IORPs;
the remuneration policy shall be in line with the long-term interests of members and beneficiaries of pension schemes operated by the IORP;
the remuneration policy shall include measures aimed at avoiding conflicts of interest;
the remuneration policy shall be consistent with sound and effective risk management and shall not encourage risk-taking which is inconsistent with the risk profiles and rules of the IORP;
the remuneration policy shall apply to the IORP and to the service providers referred to in Article 31(1), unless those service providers are covered by the Directives referred to in point (b) of Article 2(2);
the IORP shall establish the general principles of the remuneration policy, shall review and update it at least every three years, and shall be responsible for its implementation;
there shall be clear, transparent and effective governance with regard to remuneration and its oversight.
Article 24
General provisions
Without prejudice to the privilege against self-incrimination, the holder of a key function shall inform the competent authority of the IORP if the administrative, management or supervisory body of the IORP does not take appropriate and timely remedial action in the following cases:
where the person or organisational unit carrying out the key function has detected a substantial risk that the IORP will not comply with a materially significant statutory requirement and reported it to the administrative, management or supervisory body of the IORP and where this could have a significant impact on the interests of members and beneficiaries; or
where the person or organisational unit carrying out the key function has observed a significant material breach of the laws, regulations or administrative provisions applicable to the IORP 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 IORP.
Article 25
Risk-management
That risk-management system shall be effective and well-integrated into the organisational structure and in the decision-making processes of the IORP.
The risk-management system shall cover, in a manner that is proportionate to the size and internal organisation of IORPs, as well as to the size, nature, scale and complexity of their activities, risks which can occur in IORPs or in undertakings to which tasks or activities of an IORP have been outsourced, at least in the following areas, where applicable:
underwriting and reserving;
asset–liability management;
investment, in particular derivatives, securitisations and similar commitments;
liquidity and concentration risk management;
operational risk management;
insurance and other risk-mitigation techniques;
environmental, social and governance risks relating to the investment portfolio and the management thereof.
Article 26
Internal audit function
Member States shall require IORPs in a manner that is proportionate to their size and internal organisation, as well as to the size, nature, scale and complexity of their activities, to provide for an effective internal audit function. The internal audit function shall include an evaluation of the adequacy and effectiveness of the internal control system and other elements of the system of governance, including, where applicable, outsourced activities.
Article 27
Actuarial function
Where an IORP itself provides cover against biometric risks or guarantees either an investment performance or a given level of benefits, Member States shall require that IORP to provide for an effective actuarial function to:
coordinate and oversee the calculation of technical provisions;
assess the appropriateness of the methodologies and underlying models used in the calculation of technical provisions and the assumptions made for this purpose;
assess the sufficiency and quality of the data used in the calculation of technical provisions;
compare the assumptions underlying the calculation of the technical provisions with the experience;
inform the administrative, management or supervisory body of the IORP of the reliability and adequacy of the calculation of technical provisions;
express an opinion on the overall underwriting policy in the event of the IORP having such a policy;
express an opinion on the adequacy of insurance arrangements in the event of the IORP having such arrangements; and
contribute to the effective implementation of the risk management system.
Article 28
Own-risk assessment
That risk assessment shall be performed at least every three years or without delay following any significant change in the risk profile of the IORP or of the pension schemes operated by the IORP. Where there is a significant change in the risk profile of a specific pension scheme, the risk assessment may be limited to that pension scheme.
Member States shall ensure that the risk assessment referred to in paragraph 1, having regard to the size and internal organisation of the IORP, as well as to the size, nature, scale and complexity of the IORP's activities, includes the following:
a description of how own-risk assessment is integrated into the management process and into the decision-making processes of the IORP;
an assessment of the effectiveness of the risk-management system;
a description of how the IORP prevents conflicts of interest with the sponsoring undertaking, where the IORP outsources key functions to the sponsoring undertaking in accordance with Article 24(3);
an assessment of the overall funding needs of the IORP, including a description of the recovery plan where applicable;
an assessment of the risks to members and beneficiaries relating to the paying out of their retirement benefits and the effectiveness of any remedial action taking into account, where applicable:
indexation mechanisms;
benefit reduction mechanisms, including the extent to which accrued pension benefits can be reduced, under which conditions and by whom;
a qualitative assessment of the mechanisms protecting retirement benefits, including, as applicable, guarantees, covenants or any other type of financial support by the sponsoring undertaking, insurance or reinsurance by an undertaking covered by Directive 2009/138/EC or coverage by a pension protection scheme, in favour of the IORP or the members and beneficiaries;
a qualitative assessment of the operational risks;
where environmental, social and governance factors are considered in investment decisions, an assessment of new or emerging risks, including risks related to climate change, use of resources and the environment, social risks and risks related to the depreciation of assets due to regulatory change.
Article 29
Annual accounts and annual reports
Member States shall require every IORP registered or authorised in their territories to draw up and publicly disclose annual accounts and annual reports taking into account each pension scheme operated by the IORP 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 IORP's assets, liabilities and financial position and include disclosure of significant investment holdings. The annual accounts and information in the reports shall be consistent, comprehensive, fairly presented and duly approved by authorised persons, in accordance with national law.
Article 30
Statement of investment policy principles
Member States shall ensure that every IORP registered or authorised in their territories prepares and, at least every three years, reviews a written statement of investment-policy principles. That statement is to be revised without delay after any significant change in the investment policy. Member States shall provide for this statement to contain, 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 and how the investment policy takes environmental, social and governance factors into account. The statement shall be made publicly available.
CHAPTER 2
Outsourcing and investment management
Article 31
Outsourcing
Outsourcing of key functions or any other activities shall not be undertaken in such a way as to lead to any of the following:
impairing the quality of the system of governance of the IORP concerned;
unduly increasing the operational risk;
impairing the ability of the competent authorities to monitor the compliance of the IORP with its obligations;
undermining continuous and satisfactory service to members and beneficiaries.
Article 32
Investment management
Member States shall not restrict IORPs 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 Directives 2009/65/EC, 2009/138/EC, 2011/61/EU, 2013/36/EU and 2014/65/EU, as well as the authorised entities referred to in Article 2(1) of this Directive.
CHAPTER 3
Depositary
Article 33
Appointment of a depositary
Article 34
Safekeeping of assets and depositary liability
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 2014/65/EU, opened in the name of the IORP, so that they can be clearly identified as belonging to the IORP or the pension scheme's members and beneficiaries at all times.
Where no depositary is appointed for the safe-keeping of assets, IORPs shall, at least be required to:
ensure that financial instruments are subject to due care and protection;
keep records that enable the IORP to identify all assets at all times and without delay;
take the necessary measures to avoid conflicts of interest in relation to the safe-keeping of assets;
inform the competent authorities, upon request, about the manner in which assets are kept.
Article 35
Oversight duties
In addition to the tasks referred to in Article 34(1) and (2), the depositary appointed for oversight duties shall:
carry out instructions of the IORP, unless they conflict with national law or the IORP's rules;
ensure that in transactions involving the assets of an IORP relating to a pension scheme any consideration is remitted to the IORP within the usual time limits; and
ensure that income produced by assets is applied in accordance with the rules of the IORP.
TITLE IV
INFORMATION TO BE GIVEN TO PROSPECTIVE MEMBERS, MEMBERS AND BENEFICIARIES
CHAPTER 1
General provisions
Article 36
Principles
Taking into account the nature of the pension scheme established, Member States shall ensure that every IORP registered or authorised in their territories provides to:
prospective members: at least the information set out in Article 41;
members: at least the information set out in Articles 37 to 40, 42 and 44; and
beneficiaries: at least the information set out in Articles 37, 43 and 44.
The information referred to in paragraph 1 shall be:
regularly updated;
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;
not misleading, and consistency shall be ensured in the vocabulary and content;
presented in a way that is easy to read;
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 pension scheme concerned; and
made available to prospective members, members and beneficiaries free of charge through electronic means, including on a durable medium or by means of a website, or on paper.
Article 37
General information on the pension scheme
Member States shall, in respect of every IORP registered or authorised in their territories, ensure that members and beneficiaries are sufficiently informed about the respective pension scheme operated by the IORP, in particular concerning:
the name of the IORP, the Member State in which the IORP is registered or authorised and the name of its competent authority;
the rights and obligations of the parties involved in the pension scheme;
information on the investment profile;
the nature of financial risks borne by the members and beneficiaries;
the conditions regarding full or partial guarantees under the pension scheme or of a given level of benefits or, where no guarantee is provided under the pension scheme, a statement to that effect;
the mechanisms protecting accrued entitlements or the benefit reduction mechanisms, if any;
where members bear investment risk or can take investment decisions, information on the past performance of investments related to the pension scheme for a minimum of five years, or for all the years that the scheme has been operating where this is less than five years;
the structure of costs borne by members and beneficiaries, for schemes which do not provide for a given level of benefits;
the options available to members and beneficiaries in receiving their retirement benefits;
in case a member has the right to transfer pension rights, further information about the arrangements relating to such a transfer.
CHAPTER 2
Pension Benefit Statement and supplementary information
Article 38
General provisions
Article 39
Pension Benefit Statement
The Pension Benefit Statement shall include, at least, the following key information for members:
personal details of the member, including a clear indication of the statutory retirement age, the retirement age laid down in the pension scheme or estimated by the IORP, or the retirement age set by the member, as applicable;
the name of the IORP and its contact address and identification of the pension scheme of the member;
where applicable, information on full or partial guarantees under the pension scheme and if relevant, where further information can be found;
information on pension benefit projections based on the retirement age as specified in point (a), and a disclaimer that those projections may differ from the final value of the benefits received. If the pension benefit projections are based on economic scenarios, that information shall also include a best estimate scenario and an unfavourable scenario, taking into consideration the specific nature of the pension scheme;
information on the accrued entitlements or accumulated capital taking into consideration the specific nature of the pension scheme;
information on the contributions paid by the sponsoring undertaking and the member into the pension scheme, at least over the last 12 months, taking into consideration the specific nature of the pension scheme;
a breakdown of the costs deducted by the IORP at least over the last 12 months;
information on the funding level of the pension scheme as a whole.
Article 40
Supplementary information
The Pension Benefit Statement shall specify where and how to obtain supplementary information including:
further practical information about the member's options provided under the pension scheme;
the information specified in Articles 29 and 30;
where applicable, 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;
information on the level of benefits, in case of cessation of employment.
CHAPTER 3
Other information and documents to be provided
Article 41
Information to be given to prospective members
Member States shall require IORPs to ensure that prospective members who are not automatically enrolled in a pension scheme are informed, before they join that pension scheme, about:
any relevant options available to them including investment options;
the relevant features of the pension scheme including the kind of benefits;
information on whether and how environmental, climate, social and corporate governance factors are considered in the investment approach; and
where further information is available.
Member States shall require IORPs to ensure that prospective members who are automatically enrolled in a pension scheme are promptly after their enrolment, informed about:
any relevant options available to them including investment options;
the relevant features of the pension scheme including the kind of benefits;
information on whether and how environmental, climate, social and corporate governance factors are considered in the investment approach; and
where further information is available.
Article 42
Information to be given to members during the pre-retirement phase
In addition to the Pension Benefit Statement, IORPs shall provide each member, in due time before the retirement age as specified in point (a) of Article 39(1), or at the request of the member, with information about the benefit pay-out options available in taking their retirement benefits.
Article 43
Information to be given to beneficiaries during the pay-out phase
Article 44
Additional information to be given on request to members and beneficiaries
On request of a member, a beneficiary or their representatives, the IORP shall provide the following additional information:
the annual accounts and the annual reports referred to in Article 29, or where an IORP is responsible for more than one scheme, those accounts and reports relating to their particular pension scheme;
the statement of investment policy principles, referred to in Article 30;
any further information about the assumptions used to generate the projections referred to in point (d) of Article 39(1).
TITLE V
PRUDENTIAL SUPERVISION
CHAPTER 1
General rules on prudential supervision
Article 45
Main objective of prudential supervision
Article 46
Scope of prudential supervision
Member States shall ensure that IORPs are subject to prudential supervision including the supervision of the following where applicable:
conditions of operation;
technical provisions;
funding of technical provisions;
regulatory own funds;
available solvency margin;
required solvency margin;
investment rules;
investment management;
system of governance; and
information to be provided to members and beneficiaries.
Article 47
General principles of prudential supervision
Article 48
Powers of intervention and duties of the competent authorities
Competent authorities may also restrict or prohibit the free disposal of the IORP's assets when, in particular:
the IORP has failed to establish sufficient technical provisions in respect of the entire business or has insufficient assets to cover the technical provisions;
the IORP has failed to hold the regulatory own funds.
The competent authorities may prohibit or restrict the activities of an IORP registered or authorised in their territories in particular if:
the IORP fails to protect adequately the interests of scheme members and beneficiaries;
the IORP no longer fulfils the conditions of operation;
the IORP fails seriously in its obligations under the rules to which it is subject;
in the case of cross-border activity, the IORP does not respect the requirements of social and labour law of the host Member State relevant to the field of occupational pension schemes.
Article 49
Supervisory review process
That review shall take into account the circumstances in which the IORPs 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:
an assessment of the qualitative requirements relating to the system of governance;
an assessment of the risks the IORP faces;
an assessment of the ability of the IORP to assess and manage those risks.
Article 50
Information to be provided to the competent authorities
Member States shall ensure that the competent authorities, in respect of any IORP registered or authorised in their territories, have the necessary powers and means to:
require the IORP, the administrative, management or supervisory body of the IORP or the persons who effectively run the IORP or carry out key functions to supply at any time information about all business matters or forward all business documents;
supervise relationships between the IORP and other companies or between IORPs, when IORPs outsource key functions or any other activities to those other companies or IORPs and all subsequent re-outsourcing, influencing the financial situation of the IORP or being in a material way relevant for effective supervision;
obtain the following documents: the own-risk assessment, the statement of investment-policy principles, the annual accounts and the annual reports, and all other documents necessary for the purposes of supervision;
lay down which documents are necessary for the purposes of supervision, including:
internal interim reports;
actuarial valuations and detailed assumptions;
asset-liability studies;
evidence of consistency with the investment-policy principles;
evidence that contributions have been paid in as planned;
reports by the persons responsible for auditing the annual accounts referred to in Article 29;
carry out on-site inspections at the IORP's premises and, where appropriate, on outsourced and all subsequent re-outsourced activities to check if activities are carried out in accordance with the supervisory rules;
request information from IORPs about outsourced and all subsequent re-outsourced activities at any time.
Article 51
Transparency and accountability
Member States shall ensure that the following information is publicly disclosed:
the texts of laws, regulations, administrative rules and general guidance in the field of occupational pension schemes, and information about whether the Member State chooses to apply this Directive in accordance with Articles 4 and 5;
information regarding the supervisory review process as set out in Article 49;
aggregate statistical data on key aspects of the application of the prudential framework;
the main objective of prudential supervision and information on the main functions and activities of the competent authorities;
the rules on administrative sanctions and other measures applicable to breaches of national provisions adopted pursuant to this Directive.
CHAPTER 2
Professional secrecy and exchange of information
Article 52
Professional secrecy
Article 53
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:
to check that the conditions for taking up occupational retirement provision business are met by IORPs before commencing their activities;
to facilitate the monitoring of the activities of IORPs, including the monitoring of the technical provisions, the solvency, the system of governance, and the information provided to members and beneficiaries;
to impose corrective measures, including administrative sanctions;
where permitted by national law, to publish key performance indicators for all individual IORPs, which may assist members and beneficiaries in taking financial decisions regarding their pension;
in appeals against decisions of the competent authorities taken in accordance with the provisions transposing this Directive;
in court proceedings regarding the provisions transposing this Directive.
Article 54
European Parliament right of inquiry
Articles 52 and 53 shall be without prejudice to the right of inquiry conferred on the European Parliament by Article 226 of the Treaty on the Functioning of the European Union.
Article 55
Exchange of information between authorities
Articles 52 and 53 shall not preclude any of the following:
the exchange of information between competent authorities in the same Member State in the discharge of their supervisory functions;
the exchange of information between competent authorities in different Member States in the discharge of their supervisory functions;
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:
authorities responsible for the supervision of financial sector entities and other financial organisations and the authorities responsible for the supervision of financial markets;
authorities or bodies charged with responsibility for maintaining the stability of the financial system in Member States through the use of macro-prudential rules;
bodies involved in the winding up of a pension scheme and in other similar procedures;
reorganisation bodies or authorities aiming at protecting the stability of the financial system;
persons responsible for carrying out statutory audits of the accounts of IORPs, insurance undertakings and other financial institutions;
the disclosure, to bodies which administer the winding up of a pension scheme, of information necessary for the performance of their duties.
Articles 52 and 53 shall not preclude Member States from authorising exchanges of information between the competent authorities and any of the following:
the authorities responsible for overseeing the bodies involved in the winding up of pension schemes and other similar procedures;
the authorities responsible for overseeing the persons charged with carrying out statutory audits of the accounts of IORPs, insurance undertakings and other financial institutions;
independent actuaries of IORPs carrying out supervision of those IORPs and the bodies responsible for overseeing such actuaries.
Article 56
Transmission of information to central banks, monetary authorities, European Supervisory Authorities and the European Systemic Risk Board
Articles 52 and 53 shall not prevent a competent authority from transmitting information to the following entities for the purposes of the exercise of their respective tasks:
central banks and other bodies with a similar function in their capacity as monetary authorities;
other public authorities responsible for overseeing payment systems, where appropriate;
the European Systemic Risk Board, EIOPA, the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council ( 8 ) and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council ( 9 ).
Article 57
Disclosure of information to government administrations responsible for financial legislation
That disclosure shall be made only where necessary for reasons of prudential control, and prevention and resolution of failing IORPs. 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 the information received under Article 55, 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.
Member States may authorise the disclosure of confidential information relating to the prudential supervision of IORPs 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:
the entities have the competence under national law to investigate or scrutinise the actions of authorities responsible for the supervision of IORPs or for laws on such supervision;
the information is strictly necessary for fulfilling the competence referred to in point (a);
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;
if the information originates from another Member State, that 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 58
Conditions for the exchange of information
For exchanges of information under Articles 55, transmission of information under Article 56 and disclosure of information under Article 57, Member States shall require that at least the following conditions are met:
the information shall be exchanged, transmitted or disclosed for the purpose of carrying out oversight or supervision;
the information received shall be subject to the obligation of professional secrecy laid down in Article 52;
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.
Member States which apply the first subparagraph shall require that at least the following conditions are met:
the information must be intended for the purpose of detection, and investigation and scrutiny as referred to in point (a) of Article 57(2);
information received must be subject to the obligation of professional secrecy laid down in Article 52;
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.
Article 59
National provisions of a prudential nature
TITLE VI
FINAL PROVISIONS
Article 60
Cooperation between Member States, the Commission and EIOPA
Article 61
Processing of personal data
With regard to the processing of personal data within the framework of this Directive, IORPs and competent authorities shall carry out their tasks for the purposes of this Directive in accordance with Regulation (EU) 2016/679. With regard to the processing of personal data by EIOPA within the framework of this Directive, EIOPA shall comply with Regulation (EC) No 45/2001.
Article 62
Evaluation and review
The review referred to in paragraph 1 shall in particular consider:
the adequacy of this Directive from a prudential and governance point of view;
cross-border activity;
the experience acquired in applying this Directive and its impact on the stability of IORPs;
the Pension Benefit Statement.
Article 63
Amendment of Directive 2009/138/EC
Directive 2009/138/EC is amended as follows:
in Article 13, point (7) is replaced by the following:
‘(7) “reinsurance” means one of the following:
the activity consisting in accepting risks ceded by an insurance undertaking or third-country insurance undertaking, or by another reinsurance undertaking or third-country reinsurance undertaking;
in the case of the association of underwriters known as Lloyd's, the activity consisting in accepting risks, ceded by any member of Lloyd's, by an insurance or reinsurance undertaking other than the association of underwriters known as Lloyd's; or
the provision of cover by a reinsurance undertaking to an institution that falls within the scope of Directive (EU) 2016/2341 of the European Parliament and of the Council ( *1 );
in Article 308b, paragraph 15 is replaced by the following:
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 notional solvency capital requirement with respect to their insurance activity, calculated without the occupational retirement provision business under Article 4 of Directive (EU) 2016/2341;
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, the Commission shall submit a report to the European Parliament and to the Council, on whether the period referred to in the first subparagraph should be extended, taking account of changes to Union or national law resulting from this Directive.’.
Article 63a
Accessibility of information on the European single access point
Member States shall ensure that the information complies with the following requirements:
be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859 or, where required by Union law, in a machine-readable format, as defined in Article 2, point (4), of that Regulation;
be accompanied by the following metadata:
all the names of the IORP to which the information relates;
the legal entity identifier of the IORP, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859;
the size of the IORP by category, as specified pursuant to Article 7(4), point (d), of that Regulation;
the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation;
an indication of whether the information contains personal data.
Members States shall ensure that the information complies with the following requirements:
be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859;
be accompanied by the following metadata:
all the names of the person on whom the administrative sanction or other measure was imposed to which the information relates;
where available, the legal entity identifier of the person on whom the administrative sanction or other measure was imposed, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859;
the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation;
an indication of whether the information contains personal data.
For the purpose of ensuring the efficient collection and management of information submitted in accordance with paragraph 1, EIOPA shall develop draft implementing technical standards to specify the following:
any other metadata to accompany the information;
the structuring of data in the information;
for which information a machine-readable format is required and, in such cases, which machine-readable format is to be used.
For the purposes of point (c), EIOPA shall assess the advantages and disadvantages of different machine-readable formats and conduct appropriate field tests.
EIOPA shall submit those draft implementing technical standards to the Commission.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1094/2010.
Article 64
Transposition
When Member States adopt those measures, 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.
Article 65
Repeal
Directive 2003/41/EC, as amended by the Directives listed in Annex I, Part A, is repealed with effect from 13 January 2019 without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and the dates of 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 66
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.
Article 67
Addressees
This Directive is addressed to the Member States.
ANNEX I
PART A
Repealed Directive with list of its successive amendments
(referred to in Article 65)
|
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). |
Article 303 only |
|
Directive 2010/78/EU of the European Parliament and of the Council (OJ L 331, 15.12.2010, p. 120). |
Article 4 only |
|
Directive 2011/61/EU of the European Parliament and of the Council (OJ L 174, 1.7.2011, p. 1). |
Article 62 only |
|
Directive 2013/14/EU of the European Parliament and of the Council (OJ L 145, 31.5.2013, p. 1). |
Article 1 only |
PART B
List of time-limits for transposition into national law and application
(referred to in Article 65)
|
Directive |
Time-limit for transposition |
Date of application |
|
2003/41/EC |
23.9.2005 |
23.9.2005 |
|
2009/138/EC |
31.3.2015 |
1.1.2016 |
|
2010/78/EU |
31.12.2011 |
31.12.2011 |
|
2011/61/EU |
22.7.2013 |
22.7.2013 |
|
2013/14/EU |
21.12.2014 |
21.12.2014 |
ANNEX II
Correlation Table
|
Directive 2003/41/EC |
This Directive |
|
Article 1 |
Article 1 |
|
Article 2 |
Article 2 |
|
Article 3 |
Article 3 |
|
Article 4 |
Article 4 |
|
Article 5 |
Article 5 |
|
Article 6(a) |
Article 6(1) |
|
Article 6(b) |
Article 6(2) |
|
Article 6(c) |
Article 6(3) |
|
Article 6(d) |
Article 6(4) |
|
Article 6(e) |
Article 6(5) |
|
Article 6(f) |
Article 6(6) Article 6(7) |
|
Article 6(g) |
Article 6(8) |
|
Article 6(h) |
Article 6(9) |
|
Article 6(i) |
Article 6(10) |
|
Article 6(j) |
Article 6(11) Article 6(12) to (19) |
|
Article 7 |
Article 7 |
|
Article 8 |
Article 8 |
|
Article 9(1)(a) |
Article 9 |
|
Article 9(1)(c) |
Article 10(1)(a) |
|
Article 9(1)(e) |
Article 10(1)(b) |
|
Article 9(2) |
Article 10(2) |
|
Articles 20, 9(5) |
Article 11 Article 12 |
|
Article 15(1) to (5) |
Article 13(1) to (5) |
|
Article 15(6) |
|
|
Article 16 |
Article 14 |
|
Article 17 |
Article 15 |
|
Article 17a(1) to (4) |
Article 16(1) to (4) |
|
Article 17a(5) |
|
|
Article 17b |
Article 17 |
|
Article 17c |
|
|
Article 17d |
Article 18 |
|
Article 18 |
Article 19 Article 20 Article 21 |
|
Article 9(1)(b) |
Article 22(1) Article 22(2) to (7) Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 |
|
Article 10 |
Article 29 |
|
Article 12 |
Article 30 |
|
Article 9(4) |
Article 31(1) Article 31(2) to (7) |
|
Article 19(1) |
Article 32 |
|
Article 19(2) second subparagraph |
Article 33(1) Article 33(2) |
|
Article 19(2) first subparagraph |
Article 33(3) |
|
Article 19(3) |
Article 33(4) Article 33(5) to (8) Article 34 Article 35 Article 36 |
|
Article 9(1)(f) |
Article 37(1) |
|
Article 11(4)(c) |
Article 37(2) |
|
Article 11(2)(b) |
Article 37(3) Article 37(4) Article 38 Article 39 Article 40(1)(a) to (c) |
|
Article 11(4)(b) |
Article 40(1)(d) Article 40(2) Article 41 Article 42 |
|
Article 11(5) |
Article 43 |
|
Article 11(2)(a) |
Article 44(a) |
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Article 11(3) |
Article 44(b) Article 44(c) Article 45 Article 46 Article 47 |
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Article 14(1) |
Article 48(1) |
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Article 14(2) first subparagraph |
Article 48(2) Article 48(3) to (5) |
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Article 14(2) second subparagraph |
Article 48(6) |
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Article 14(3) to (5) |
Article 48(7) to (9) Article 49 |
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Article 13(1) |
Article 50 |
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Article 13(2) |
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Article 51 Article 52 Article 53 Article 54 Article 55 Article 56 Article 57 Article 58 |
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Article 20(11) first subparagraph |
Article 59(1) |
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Article 20(11) second subparagraph |
Article 59(2) |
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Article 20(11) third and fourth subparagraphs |
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Article 21 |
Article 60 Article 61 Article 62 Article 63 |
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Article 22 |
Article 64 Article 65 Article 66 Article 67 |
( 1 ) 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).
( 2 ) 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).
( 3 ) 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).
( 4 ) 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).
( 5 ) 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).
( 6 ) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
( 7 ) 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).
( 8 ) Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12).
( 9 ) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
( *1 ) Directive (EU) 2016/2341 of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (OJ L 354, 23.12.2016, p. 37)’;
( 10 ) Regulation (EU) 2023/2859 of the European Parliament and of the Council of 13 December 2023 establishing a European single access point providing centralised access to publicly available information of relevance to financial services, capital markets and sustainability (OL L, 2023/2859, 20.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2859/oj).