belgiquelex.be - Carrefour Bank of Legislation

13 MARCH 2016. - Act respecting the status and control of insurance or reinsurance companies

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
LIVRE I^er. - GENERAL PROVISIONS
PART I^er. - Object
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. This Act provides partial transposition:
1° of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on access to insurance and reinsurance activities and their exercise (Solvability II);
2° of Directive 2011/89/EU of the European Parliament and of the Council of 16 November 2011 amending Directives 98/78/EC, 2002/87/EC, 2006/48/CE and 2009/138/EC with regard to the complementary supervision of financial entities of financial conglomerates, with respect to insurance or reinsurance companies;
3°, Directive 2013/36/EU of the European Parliament and Council of 26 June 2013 on access to credit institutions and prudential supervision of credit institutions and investment companies amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, in particular Article 71;
4° of Directive 2014/51/EU of the European Parliament and of the Council of 16 April 2014 amending Directives 2003/71/EC and 2009/138/EC and Regulations (EC) No 1060/2009, (EU) No 1094/2010 and (EU) No 1095/2010 with regard to the competences of the European Supervisory Authority (European Insurance and Professional Pension Authority) and the European Supervisory Authority (European Market Authority).
5° of the Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment companies and amending Council Directive 82/891/EEC as well as the directives of the European Parliament and Council 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and regulations 2013/36/EU
Art. 3. The purpose of this Act is to regulate, with the aim of guaranteeing the protection of insurance licensees, insured persons and beneficiaries of contracts and insurance transactions, and to ensure the sound and proper functioning of the financial system, in particular, the establishment, activity and control of insurance or reinsurance companies operating in Belgium, including certain terms and conditions inherent in reinsurance or insurance transactions.
Art. 4. This Act is without prejudice to the obligations of insurance or reinsurance companies pursuant to the specific laws governing the operations they operate.
Art. 5. For the purposes of this Act and the decrees and regulations made for its execution, is defined as:
1° insurance company, the company that, on its own account, carries out the insurance activity, namely the activity that consists of entering into contracts or carrying out insurance transactions;
2° reinsurance company, the company that, for its own account, carries out the reinsurance activity, namely:
(a) the activity of accepting risks from an insurance company or another reinsurance company;
(b) in respect of the association of subscribers called "Lloyd's", the activity consisting, for an insurance or reinsurance company other than Lloyd's, of accepting the risks assigned by any member of Lloyd's.
Assimilated to a reinsurance activity, a reinsurance company, on its own behalf, covers a professional pension institution within the scope of Parts II and III of the Act of 27 October 2006 relating to the supervision of professional pension institutions.
PART II. - Scope of application
CHAPTER I^er. - General provisions
Art. 6. This Act applies to insurance or reinsurance companies under Belgian law or foreign law that operate or wish to operate in Belgium, by way of a branch or without being established.
Art. 7. § 1^er. With respect to non-life insurance and life insurance activity, this Act applies to the activities of the branches referred to in Schedule I and Appendix II respectively to this Act.
§ 2. The non-life insurance activity also includes the activity of providing assistance to persons in difficulty during travel, absence from their home or habitual residence. This activity includes, with the prior payment of a premium, the commitment to immediately provide assistance to the recipient of a support contract where the assistance contract is in difficulty as a result of a fortuitous event, in the circumstances and under the conditions provided by the contract.
Assistance may include cash or in-kind benefits. In-kind benefits may also be provided through the use of the service provider's own personnel or equipment.
The support activity does not cover maintenance or maintenance services, after-sales services or the simple indication or provision of assistance as an intermediary.
CHAPTER II. - Exclusions
Section I^re. - Legal regimes
Art. 8. This Act is not applicable to insurance contracts and transactions that are part of a legal social security system for which companies do not operate at their own risk.
In particular, this Act is not applicable:
1° to mutualist societies which are recognized in accordance with the law of 23 June 1894 and which are not covered by the law of 6 August 1990 on mutuality and national mutuality unions;
2° to the mutualities, national mutuality unions and mutuality societies referred to in the law of 6 August 1990 mentioned above which cannot offer insurance and whose services referred to in Article 3, paragraph 1^er, (b) and (c), of the Act of 6 August 1990 referred to above to each of the conditions provided for in section 67, paragraph 1^erthe Act of 26 April 2010 on various provisions concerning the organization of supplementary health insurance (I);
3° to the public funds, private fixed-priority enterprises and public institutions, for the operations covered by the laws relating to the pension and survival regime of workers, employees, minor workers, sailors and self-employed persons.
Section II. - Non-life insurance
Art. 9. With respect to the non-life insurance business, this Act is not applicable to companies that carry out the following operations:
1° the operations of contingency and relief agencies whose benefits vary according to available resources and which require each of their members an appropriate lump sum contribution;
2° the transactions carried out by an organization that does not have the legal personality and is the object of the mutual guarantee of its members, without giving rise to the payment of premiums or the establishment of technical reserves;
3° export credit insurance transactions on behalf of or with the State guarantee, or when the State is the insurer.
Art. 10. § 1^er. This Act is not applicable to companies engaged in an assistance activity as long as it meets all the following conditions:
1° assistance is provided in the event of an accident or failure affecting a road vehicle, when the accident or failure occurs in Belgian territory;
2° Assistance engagement is limited to the following operations:
(a) on-site troubleshooting, for which the warranty provider uses, in most circumstances, its own personnel and equipment;
(b) the transport of the vehicle to the nearest or most appropriate place of repair where the repair may be carried out, as well as the possible accompaniment, normally by the same means of rescue, of the driver and passengers, to the nearest place from which they may continue their journey by other means;
(c) the transport of the vehicle, possibly accompanied by the driver and passengers, to their home, departure point or their original destination within Belgian territory;
3° Assistance is not provided by a company subject to this Act because of other activities justifying its compliance with this Act.
§ 2. In the cases referred to in paragraph 1^er, 2°, (a) and (b), the condition that the accident or failure occurred on Belgian territory is not required when the company is an organization whose beneficiary is a member and that the vehicle's gearing or delivery is carried out on a simple presentation of the member card, without a overpressed payment, by a similar body of the country concerned on the basis of a reciprocity agreement.
Art. 11. This Act is not applicable to mutual insurance associations engaged in non-life insurance activities that have entered into a agreement with another mutual insurance association that includes the full reinsurance of insurance contracts that they subscribe or the assignment of contractual commitments involving the substitution of the transferee enterprise to the transferee enterprise for the performance of the commitments resulting from the said contracts. In this case, the transferee is subject to the provisions of this Act.
Section III. - Life insurance
Art. 12. With respect to life insurance, this Act is not applicable to the following companies:
1° Provident and relief organizations that grant variable benefits according to available resources and require each of their members an appropriate lump sum contribution;
2° the organizations, other than the enterprises referred to in Article 6, which are intended to provide workers, whether or not, grouped within the framework of a company or group of companies or a professional or inter-professional sector, with benefits in the event of death, in the case of life or in the case of termination or reduction of activities, whether or not the commitments resulting from these operations are covered in full and at any time;
3° organizations that only guarantee benefits in the event of death, where the amount of these benefits does not exceed the average value of funeral expenses for a death or when these benefits are provided in kind.
Section IV. - Reinsurance
Art. 13. This Act is not applicable to the reinsurance activity carried out or fully guaranteed by a Member State acting, for reasons of a significant public interest, as a last resort reinsurer, including when this role is made necessary by a situation where it is impossible to obtain adequate reinsurance coverage on the market.
Art. 14. This Act is not applicable to reinsurance companies that, as of December 10, 2007, have ceased to subscribe to new reinsurance contracts and are limited to administering their existing portfolio with a view to ending their business.
These companies are required to be known to the Bank, specifying the type of reinsurance activity related to the portfolio of contracts they administer.
The Bank shall prepare a list of reinsurance companies referred to in this article and communicate it to the supervisory authorities of other Member States.
PART III. - Definitions
Art. 15. For the purposes of the application of this Act and of the decrees and regulations made for its execution, the following means:
1° "Regulation 1094/2010": Regulation (EU) No 1094/2010 of the European Parliament and Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Professional Pension Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/79/EC;
2° "Regulation 2015/35": Delegated Regulation (EU) 2015/35 of the Commission of 10 October 2014 supplementing Directive 2009/138/EC of the European Parliament and the Council on access to insurance and reinsurance activities and their exercise (Solvability II);
3° "Directive 2002/87/EC": Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary monitoring of credit institutions, insurance companies and investment companies owned by a financial conglomerate, and amending directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC of the Council and Directives 98/78/EC and 2000
4° "Directive 2009/65/EC": Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (VSF);
5° "Directive 2009/103/EC": Directive 2009/103/EC of the Parliament and of the Council of 16 September 2009 on the insurance of civil liability resulting from the movement of motor vehicles and the control of the obligation to bear that responsibility;
6° "Directive 2009/138/EC": Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on access to insurance and reinsurance activities and their exercise (Solvability II);
7° "executive measures of Directive 2009/138/EC": all enforcement measures taken pursuant to Directive 2009/138/EC;
8° "Directive 2013/36/EU": Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to credit institutions and prudential supervision of credit institutions and investment companies amending Directive 2002/87/EC and repealing Directives 2006/48/CE and 2006/49/EC;
9° "Mortgage law": the law of 16 December 1851 forming Title XVIII of Book III of the Civil Code;
10° "Law of 6 April 1995": the Law of 6 April 1995 on the Status and Control of Investment Companies;
11° "Law of 22 February 1998": the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
12° "Law of 2 August 2002": the Act of 2 August 2002 on financial sector monitoring and financial services;
13° "Insurance Act": the Insurance Act of 4 April 2014;
14° "Law of April 25, 2014": the Law of April 25, 2014 on the Status and Control of Credit Institutions;
15° "insurance contract":
(a) a contract as defined in section 5, 14°, of the Insurance Act, except for capitalization contracts under section 26 referred to in Appendix II;
(b) a contract under branches 24 to 28 referred to in Appendix II;
(c) an operation under branch 29 referred to in Appendix II;
(d) any undertaking made by an insurance company that includes a benefit similar to those provided by contracts and transactions under branches 21 to 29 referred to in Appendix II;
16° "Non-life insurance": insurance activity related to branches 1 to 18 referred to in Appendix I;
17° "life insurance": the insurance activity related to branches 21 to 29 mentioned in Appendix II;
18° "insurance provider": the person who enters the contract with the insurance company;
19° "insured": the person as defined in section 5, 17°, of the Insurance Act;
20° "beneficiary": the person in favour of whom insurance benefits are stipulated;
21° "Insurance captive company": an insurance company that is owned by either a financial enterprise other than an insurance or reinsurance company or a group of insurance or reinsurance companies within the meaning of section 339, 2°, or by a non-financial company and that is the purpose of providing an insurance coverage exclusively on the risks of the enterprise or of the enterprises to which it belongs,
22° "reinsurance captive company": a reinsurance company held either by a financial enterprise other than an insurance or reinsurance company or a group of insurance or reinsurance companies within the meaning of section 339, 2°, or by a non-financial enterprise, and the purpose of which is to provide a reinsurance coverage that exclusively bears the risks of the enterprise or of the enterprises to which it belongs, or
23° "Non-life insurance": reinsurance activities related to branches 1 to 18 referred to in Appendix I;
24° "life insurance": reinsurance activities related to branches 21 to 29 referred to in Appendix II;
25° "securing vehicle" ("special purpose vehicle"): any company, whether it has a legal personality or not, other than an existing insurance or reinsurance company, that is responsible for the risks transferred by insurance or reinsurance companies and that fully funds its exposure to these risks through the issuance of a debt or any other financing mechanism, where the rights to repayment of those who have made an insurance
26° " Mutual Insurance Association": an insurance or reinsurance company that has adopted the social form referred to in sections 244 to 271 of this Act;
27° "Member State": a State Party to the European Economic Area Agreement (EEA);
28° "third country": a state that is not a party to the agreement on the European Economic Area;
29° "State member of origin": one of the following Member States:
(a) in respect of non-life insurance, the member State in which is located the head office of the insurance company that covers the risk;
(b) in the case of life insurance, the Member State in which is located the head office of the insurance company that undertakes the undertaking;
(c) in respect of reinsurance, the Member State in which is located the head office of the reinsurance company;
30° "country of origin": one of the following third countries:
(a) in respect of non-life insurance, the third country in which is located the head office of the insurance company that covers the risk;
(b) in the case of life insurance, the third country in which is located the head office of the insurance company undertaking;
(c) in respect of reinsurance, the third country in which the head office of the reinsurance company is located;
31° "Reception Member State": the Member State, other than the Member State of origin, in which an insurance or reinsurance company has a branch or provides insurance or reinsurance services; for life insurance and for non-life insurance, the member state of service provision, respectively, means the member state of the undertaking or the member state where the risk is located, when the said undertaking or risk is covered by an insurance company or a branch located in another Member State;
32° "reception country": the third country, other than the Member State or the country of origin, in which an insurance or reinsurance company has a branch or provides insurance or reinsurance services; for life insurance and non-life insurance means the third country of service delivery, respectively, the third country of the undertaking or the third country where the risk is located, where the said undertaking or risk is covered by an insurance company or branch located in another country;
33° "succursal": any agency or branch of an insurance or reinsurance company located in the territory of a Member State other than its Member State of origin or in the territory of a third country;
Any permanent presence of a company in the territory of a Member State other than its Member State of origin or in the territory of a third country is considered to be a branch, even when such presence has not taken the form of a branch but is carried out by a simple office managed by the company's own staff or by an independent person but mandated to act permanently for the company as an agency would.
34° "establishment" of an insurance or reinsurance company: its seat or branch;
35° "free service delivery": the activity by which an insurance or reinsurance company covers, from its head office or branch located in a Member State or a third country, risks located in another Member State or another third country;
36° "Member State or third country where the risk is located": as the case may be, one of the following Member States or third countries:
(a) the Member State or third country in which the property is located, where the insurance is related either to buildings or to buildings and their contents, to the extent that it is covered by the same insurance policy;
(b) the Member State or third country of registration, where insurance is related to vehicles of any kind;
By derogation from the previous paragraph, where a self-propelled vehicle referred to in section 1^er of the Act of 21 November 1989 on compulsory liability insurance for self-propelled vehicles, is shipped from one Member State to another Member State, the Member State of destination is deemed to be the one where the risk is located, upon acceptance of the delivery by the purchaser, for a period of thirty days, even if the vehicle has not been officially registered in the Member State of destination;
(c) the Member State or third country where the lessee has subscribed the police, if it is a contract of less than or equal to four months, relating to risks incurred during a trip or holiday, regardless of the branch concerned;
(d) in all cases not expressly covered under (a), (b) or (c), the Member State or the third country where one of the following is located:
(i) the habitual residence of the lessee;
(ii) the establishment of the lessee to whom the contract relates if the lessee is a legal entity;
37° Member State or third country of the undertaking: as the case may be, the Member State or the third country where one of the following is located:
(a) the habitual residence of the lessee;
(b) the establishment of the lessee to whom the contract relates if the lessee is a legal entity;
38° "General Manager": a natural person with sufficient powers to engage the insurance or reinsurance company with respect to third parties or, in the case of Lloyd's, interested subscribers, and to represent them in relations with the authorities and jurisdictions of the Member State or the host country;
39° "mother company": a company that meets the conditions of the parent company as defined in Article 6 of the Corporate Code;
40° "filial": a company that meets the conditions of the subsidiary corporation as defined in section 6 of the Corporate Code; any subsidiary of a subsidiary is also considered to be a subsidiary of the parent company that is at the head of these companies;
41° "close links": a situation in which two or more natural or legal persons are linked by a control link or participation, or a situation in which two or more natural or legal persons are permanently linked to one or the same person by a control link;
42° "control link": the link between a parent company and a subsidiary company, as referred to in section 5 of the Corporate Code, or a similar relationship between any natural or legal person and a company;
43° "participation": holding, directly or through a control link, at least 20% of the voting rights or capital of a company;
44° "qualified participation": the direct or indirect detention of at least 10% of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertisement of significant participations, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition;
45° "Intragroup transaction": any transaction by which an insurance or reinsurance company directly or indirectly relies on other companies of the same group or any natural or legal person related to the companies of that group by close ties, for the performance of an obligation, whether contractual or not, in a costly or non-cost manner;
46° "regulated market": one of the following markets:
(a) in the case of a market in a Member State, a regulated market within the meaning of Article 2, paragraph 1^er5° or 6° of the law of 2 August 2002;
(b) in the case of a market in a third country, a financial market that meets the following conditions:
- it is recognized by the Member State of origin of the insurance company and meets requirements comparable to those provided for in Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 on the markets of financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and the Council and repealing Directive 93/22/EEC; and
- the financial instruments negotiated therein are of a quality comparable to that of traded instruments in the market or regulated markets of the Member State of origin;
47° "investment company": an investment company within the meaning of Article 44 of the Act of 6 April 1995;
48° "financial establishment": a company other than a credit institution, whose main activity consists of taking participations or exercising one or more of the activities referred to in items 2 to 12 and 15 of the list resumed in section 4 of the Act of 25 April 2014;
49° "financial enterprise": one of the following entities:
(a) an insurance or reinsurance company or an insurance holding company within the meaning of section 338, 5°, or a joint financial company within the meaning of section 2, point 15) of Directive 2002/87/EC;
(b) a credit facility within the meaning of section 1^er, § 3, of the Act of 25 April 2014, a financial institution, or an auxiliary banking company within the meaning of Article 89, paragraph 1^er, (b), (ii), Regulation No. 575/2013 of the European Parliament and Council of 26 June 2013 concerning prudential requirements for credit institutions and investment companies and amending Regulation (EU) No. 648/2012;
(c) an investment company;
50° "collective placement organization": a collective investment organization within the meaning of Article 3, 1°, of the Act of 3 August 2012 on collective investment organizations meeting the requirements of Directive 2009/65/EC and on debt-referring institutions;
51° "Management of collective investment organizations": a collective investment organization management company within the meaning of Article 3, 12°, of the Act of August 3, 2012 on collective investment organizations meeting the requirements of Directive 2009/65/EC and on debt-taking institutions;
52° "alternative collective investment organization or "OPCA": a collective investment organization within the meaning of Article 3, 2°, of the Act of April 19, 2014 on alternative collective investment organizations and their managers;
53° "Manager of alternative collective investment organizations": a manager of alternative collective placement organizations within the meaning of Article 3, 13°, of the Act of April 19, 2014 on alternative collective investment organizations and their managers, as well as "OPCA manager";
54° "subcontracting": an agreement, whatever its form, between an insurance or reinsurance company and a service provider, subject to or without a control, under which the service provider operates, either directly or by using the subcontracting, process, service or activity that otherwise would be carried out by the insurance or reinsurance company itself;
55° "function" in a governance system: an internal capacity to perform concrete tasks; a governance system includes the risk management function, the compliance audit function, the internal audit function and the actuarial function;
56° "subscription risk": the risk of loss or unfavourable change in the value of insurance commitments due to inadequate pricing and provisioning assumptions;
57° "market risk": the risk of loss or adverse change in the financial situation resulting, directly or indirectly, from fluctuations affecting the level and volatility of market value of assets, liabilities and financial instruments;
58° "credit risk": the risk of loss, or adverse change in the financial situation, resulting from fluctuations affecting the quality of credit of securities issuers, counterparties or debtors to which insurance or reinsurance companies are exposed in the form of risk of counterparty, risk associated with margin fluctuation or concentration of market risk;
59° "eligible central counterparty": a central counterparty that has been approved in accordance with Article 14 of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on voluntarily derived products, central counterparties and central repositories, is recognized in accordance with Article 25 of that Regulation;
60° "operational risk": the risk of loss resulting from internal processes or procedures, personnel or inadequate or deficient systems, or external events;
61° "liquid risk": the risk, for insurance or reinsurance companies, of not being able to carry out their investments and other assets in order to meet their financial commitments at the time they become due;
62° "concentration risk": all risk exposures that have a potential for loss sufficiently important to threaten the creditworthiness or financial situation of insurance or reinsurance companies;
63° "risk mitigation techniques": all techniques that allow insurance or reinsurance companies to transfer all or part of their risks to another party;
64° "Diversification effects": reducing exposure to the risk that the fact causes, for companies and insurance or reinsurance groups, to diversify their activities, as long as the adverse result of a risk can be compensated by the more favorable result of another risk, when these risks are not perfectly correlated;
65° "Provisional probability distribution": a mathematical function that affects a complete set of mutually exclusive future events a probability of realization;
66° "risk measure": a mathematical function that affects a monetary amount to a given predictive probability distribution that increases monotonously with the level of risk exposure underpinning this predictive probability distribution;
67° "external credit assessment institution" or "EEEC": a credit rating agency that is registered or certified in accordance with Regulation (EC) No. 1060/2009 of the European Parliament and of the Council or a central bank issuing credit ratings that are exempted from the application of the said regulation;
68° "Technical audits": reserves made by the company to meet its insurance or reinsurance commitments with respect to licensees, insurers and beneficiaries of insurance contracts or beneficiaries of reinsurance contracts, both in-service and non-liquidated contracts;
69° "financial information": the quantitative data required under this Act or the enforcement measures of Directive 2009/138/EC, including the accounting data;
70° "remediation measures": measures intended to preserve or restore the financial situation of an insurance company that affect the pre-existing rights of parties other than the insurance company itself. For Belgian law firms, these measures correspond.
(a) the acts of disposition referred to in section 519 of this Act;
(b) the measures referred to in Article 517, § 1^er4° and 7° of this Act;
(c) the measures referred to in articles 546 and 547 adopted outside a liquidation procedure;
71° " liquidation procedure": a collective procedure leading to the realization of the assets of an insurance company and the distribution of the product between creditors, shareholders or associates and necessarily involving administrative or judicial authorities, whether or not the proceedings are based on insolvency and whether the proceedings are voluntary or compulsory. For Belgian law firms, such a procedure corresponds to the bankruptcy governed by the Act of 8 August 1997 on bankruptcies and collective liquidation procedures referred to in Book IV, Title IX, of the Code of Companies;
72° "remediation authorities": competent administrative or judicial authorities in the area of remediation measures. For Belgian law firms, these authorities are the King and the Bank with regard to their respective competences in the field of sanitation measures;
73° "Arrival authorities": competent administrative or judicial authorities in the matter of liquidation proceedings. For Belgian law firms, such an authority corresponds to the Commercial Court with respect to its competence in bankruptcy and forced dissolution and to the Bank with regard to its jurisdiction in all other liquidation procedures;
74° "Remediation Commissioner": any person or body appointed by a remediation authority to manage remediation measures;
75° "liquidator": any person or body appointed by a winding-up authority or designated in accordance with the legal and statutory rules for the management of liquidation procedures;
76° "insurance payment": any amount that is due by an insurance company to insured persons, insurance takers, beneficiaries or any injured person who has a right of direct action against the insurance company and is the result of an insurance contract, including the amounts placed in reserve for the aforementioned persons, as long as all the elements of the debt are not yet known. The premiums payable by an insurance company as a result of the non-conclusion, cancellation or termination of insurance contracts, in accordance with the law applicable to such contracts, prior to the commencement of the liquidation procedure, are also considered to be insurance claims;
77° "strategic decision": a decision, as long as it is of a certain importance and therefore likely to have a more comprehensive impact on the enterprise insofar as different functions of the insurance or reinsurance company would be affected or questioned as a result of such a decision, which concerns any investment, disinvestment, participation or relationship of strategic cooperation of the enterprise, in particular, a decision to acquire or establish another The Bank, by regulation made under Article 12bis, § 2, of the Act of 22 February 1998, may specify the decisions to be considered strategic within the meaning of this Act, taking into account, inter alia, the risk profile and nature of business activities. It publishes these details;
78° "beneficiary participation": amount of all or part of the benefits of the insurance company that is awarded to insurance contracts;
79° "a mutual insurance company": a company referred to in sections 43bis, § 5, and 70, §§ 6, 7 and 8, of the law of 6 August 1990 on mutuality and national mutuality unions;
80° "control authority": the public authority or public authorities authorized under the national law of a Member State pursuant to Directive 2009/138/EC to control insurance or reinsurance companies;
81° "third country authority": an authority responsible for the control of insurance or reinsurance companies in a third country;
82° "the Bank": the National Bank of Belgium, referred to in the Act of 22 February 1998;
83° "the FSMA": the Autorité des services et marchés financiers, referred to in Article 44 of the Act of 2 August 2002;
84° "The Mutual Control Board": the National Mutual Unions and Mutual Unions Control Board, as referred to in Article 49 of the Act of 6 August 1990 on mutuality and national mutuality unions;
85° "Belgian Common Guarantee Fund": the Joint Guarantee Fund referred to in Article 19bis 2 of the Act of 21 November 1989 on the compulsory insurance of liability for self-propelled vehicles;
86° "Belgian Office": the Belgian National Insurance Office referred to in article 19bis 1 of the Act of 21 November 1989 on the compulsory insurance of liability for self-propelled vehicles;
87° "Labour Accidents Fund": the Labour Accidents Fund referred to in Article 57 of the Labour Accidents Act of 10 April 1971;
88° "CERS": the European Committee for Systemic Risk established by Regulation (EU) No 1092/2010 of the European Parliament and the Council of 24 November 2010 on the macroprudential monitoring of the financial system in the European Union and establishing a European Committee for Systemic Risk;
89° "EIOPA": the European Insurance and Pension Authority established by Regulation 1094/2010;
90° "ABE": the European Banking Authority established in Regulation (EU) No 1093/2010 of the European Parliament and 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;
91°, "financial accounting": a financial institution whose subsidiaries are exclusively or principally one or more credit institutions or financial institutions, at least one of these subsidiaries being a credit institution, and which is not a mixed financial company.
PART IV. - Names reserved
Art. 16. Can only make public use in Belgium of the terms "insurance company", "reinsurance company", "insurer" or "reinsurer" or more generally terms referring to the status of insurance or reinsurance company, in particular in their name, in the designation of their object, in their titles, effects or documents or in their advertisement:
1° insurance or reinsurance companies established in Belgium;
2° foreign insurance or reinsurance companies operating in Belgium in accordance with Articles 556 and 600.
However,
1st paragraph 1^er is not applicable, with respect to the terms "insurance" and "reinsurance" to organizations of public international law active in the insurance or reinsurance sector of which one or more of the Member States are members;
2° paragraph 1^er is not applicable, with respect to the terms "insurance company" and "reinsurance company", to the insurance or reinsurance companies under a foreign and non-authorized right to carry out insurance or reinsurance activities in Belgium and that carry out public tenders of investment instruments or admissions of instruments of placement in the negotiations on a regulated market within the meaning of the law of 16 June 2006 on public tenders
3° Insurance holding companies may use the term "insurance" in the term "insurance holding" or similar expressions; mixed financial companies and joint insurance holding companies may, on their part, use the term "insurance" in the terms "insurance holding" or "insurance" or similar expressions.
In cases where there is a risk of confusion, the Bank may impose on insurance or reinsurance companies under a foreign law entitled to use in Belgium the terms provided for in paragraph 1^erthe addition to their name of an explanatory mention.
This section is without prejudice to section 265 of the Insurance Act of 4 April 2014.
LIVRE II. - ENTREPRISES D'ASSURANCE
OR REASSURANCE OF BELGE LAW
PART I^er. - Access to activity
CHAPTER I^er. - Accreditation
Section I^re. - Accreditation requirement
Art. 17. Insurance or reinsurance companies that intend to operate in Belgium an insurance or reinsurance activity under this Act are required, before starting their business, to be approved.
Art. 18. The approval referred to in section 17 shall be granted:
1° for insurance activity, for one or more branches referred to in Appendix I or Appendix II; it covers the entire branch unless the applicant wishes to guarantee only part of the risks to that branch;
2° for reinsurance activity, for non-life reinsurance activity, for life reinsurance activity or for both types of reinsurance activity.
The licence referred to in paragraph 1^er, 1°, may, within the limits set by the Bank, be accumulated with that referred to in paragraph 1^erTwo.
Art. 19. Any registered insurance or reinsurance company in accordance with Article 17 shall be required to apply for an extension of its approval before it wishes to extend its activities, respectively:
1° to one or more other insurance branches;
2° to other parts of insurance branches;
3° to other reinsurance activities,
only those covered by the previous approval.
Art. 20. Insurance companies subject to this Act may only perform the assistance activity referred to in section 10 provided that they have received an approval for branch 18 referred to in Appendix I without prejudice to section 21, § 2. In this case, this Act applies to this activity.
Art. 21. § 1^er. Risks in a branch may not be classified in another branch, except as provided in this section.
§ 2. An insurance company that has obtained approval for a primary risk owned by a branch referred to in Appendix I may also guarantee risks included in another branch without having to obtain approval for these risks, as long as these may be considered accessories with respect to all of the following conditions:
1° these risks are related to the main risk;
2° they concern a person, property or object that is covered against the main risk;
3° they are guaranteed by the same contract as a principal risk or by a related contract that has no existence and effect only to the extent that the principal insurance contract has its own existence and effect.
§ 3. By derogation from paragraph 2, the risks in branches 14, 15 and 17 referred to in Appendix I cannot be considered as incidental risks of other branches.
However, the legal protection insurance referred to in branch 17 referred to in Appendix I may be considered an incidental risk of branch 18 when the conditions set out in paragraph 2 and one of the following two conditions are met:
1° the main risk is only for assistance provided to persons in difficulty during travel, absence of their home or habitual residence;
2° Insurance concerns disputes or risks arising from the use of marine vessels or related to that use.
Section II. - Procedure
Art. 22. The application for approval is submitted to the Bank, accompanied by an administrative record that meets the conditions it sets out, including the program of activities referred to in section 35, as well as the description of the system of governance of the insurance or reinsurance undertaking and its close links with other persons. Applicants provide any information necessary to assess their application.
The Bank sets out the conditions referred to in paragraph 1^er taking into account the conditions that FSMA imposes in respect of the organization and the procedures under its control in accordance with Article 45, § 1^erParagraph 1^er, 3°, and § 2, of the law of 2 August 2002.
Art. 23. The applicant also communicates to the Bank the identity of natural or legal persons who, directly or indirectly, acting alone or in conjunction with others, hold in the capital of the insurance company or reinsurance a qualified participation, conferring or not the right to vote. The communication includes the indication of the quotities of capital and voting rights held by these persons.
Failing qualified participation, the communication referred to in paragraph 1^er deals with the identity of the twenty main shareholders and their quotity in capital.
Art. 24. § 1^er. When the risks to be covered fall within branch 10 referred to in Appendix I, the company that solicits the approval also attached to its application:
1st proof of its affiliation with the Belgian Bureau and the Joint Guarantee Fund;
2° provided that the risks to be covered do not relate solely to the liability of the carrier, the name and address of all the representatives responsible for the settlement of claims designated in each other Member State, in accordance with Article 12 of the Act of 21 November 1989 referred to above, and the evidence that these representatives meet the requirements of Article 12, § 1^er2 in fine and § 5 of the Act of 21 November 1989 referred to above.
§ 2. When the risks to be covered relate to occupational accidents covered by the Act of 10 April 1971 on industrial accidents, the company attached to its application:
1st evidence that the Industrial Accidents Fund has been informed of the planned activity;
2° the evidence that a statement was sent to the Industrial Accidents Fund under which the company will, at the first request of the Industrial Accidents Fund, constitute the bank guarantee referred to in section 60 of the Industrial Accidents Act of 10 April 1971.
Art. 25. If an insurance activity that does not require approval pursuant to this Act was carried out before the application for approval, the company shall also attach to its application the following documents:
1° a detailed statement of the relevant technical reserves and investments at the time of the introduction of the application for approval;
2° a statement of claims reported before the beginning of the calendar year in which the claim is filed, and not yet settled.
If the business carried out prior to the application another activity, the Bank may require any information about the financial situation and its operations.
Art. 26. The Bank consults with the FSMA before deciding on the application for approval sought by an insurance or reinsurance company that is either the subsidiary of a company approved by the FSMA, or the subsidiary of the parent company of a company approved by the FSMA, or still controlled by the same natural or legal persons as a company approved by the FSMA.
A credit to a corporation that is a member of a corporation, or to a member of a corporation,
Similarly, the Bank consults with the authorities referred to in paragraph 1^er or in paragraph 2, for the purpose of assessing the required qualities of independent shareholders, managers and supervisors in accordance with sections 39 and 40, where the shareholder is a business referred to in paragraph 1^er or in paragraph 2 or that the person participating in the direction of the insurance or reinsurance undertaking shall also participate in the direction of one of the undertakings referred to in paragraph 1^er or paragraph 2 or a company that is owned by the same group, or that the person responsible for an independent control function performs such a function within one of the companies referred to in paragraph 1^er or paragraph 2 or within a company that belongs to the same group. These authorities shall provide each other with any information relevant to the assessment of the qualifications required of the shareholders and persons involved in the management, as well as those responsible for the independent oversight functions referred to in this paragraph.
Art. 27. § 1^er. The Bank shall decide on the application for approval on the advice of FSMA with respect to:
1° the adequacy of the organization of the insurance or reinsurance company, including its integrity policy, as referred to in sections 42 to 60, with respect to the rules referred to in Article 45, § 1^erParagraph 1^er3° and § 2 of the Act of 2 August 2002;
2° the professional honesty of persons called to be members of the legal body of administration of the insurance or reinsurance company, the steering committee or, in the absence of a steering committee, persons called to be in charge of the effective management, as well as persons called to be responsible for independent oversight functions, if these persons are proposed for the first time 36 for such a function in a company under the control of the Bank.
FSMA renders its opinion on the above-mentioned issues within one month of the receipt of the Bank's request for notice, together with all the documents received from the company requesting approval. The absence of an opinion within this period is considered a positive opinion. However, prior to the expiration of the one-month period, the ADMSP may inform the Bank that it will notify the Bank no later than 15 days after the expiry of that period.
§ 2. If the Bank does not take into account the ADMSP's opinion on matters referred to in paragraph 1^erParagraph 1^er, it refers to and mentions the reasons for the decision on the application for approval. The above-mentioned opinion of FSMA on point 1°, paragraph 1^erParagraph 1^er is attached to the notification of the decision on the application for approval.
Art. 28. The Bank approves insurance and reinsurance companies that meet the conditions set out in Chapter II of this Title.
The Bank decides on demand within six months of the introduction of a complete file.
Without exceeding the time limits referred to in paragraph 2, approval decisions shall be notified to applicants within fifteen days by registered letter to the position or with acknowledgement of receipt.
Art. 29. The Bank may, for the purpose of sound and prudent management, include the approval of conditions for the exercise of certain of the planned activities and, among other things, limit the approval required for a branch to some of the activities taken in the program of activities referred to in section 35.
Art. 30. When an insurance or reinsurance company is approved, the Bank shall make available to the MSDS to enable it to exercise the skills referred to in Article 45, § 1^er, 3°, and § 2, of the law of 2 August 2002, the information referred to in Article 22, as well as any modification to this information.
Art. 31. The Bank shall establish a list of registered insurance or reinsurance companies under this Book. This list and all modifications made to this list are posted on its website and notified to IAPO and FSMA.
The publication mentions the branches or parts of the insurance industry or reinsurance activities for which the licence is granted and, where applicable, the limits imposed under section 29.
When the approval is granted to an insurance or reinsurance company that is the direct or indirect subsidiary of an insurance or reinsurance company under the law of a third State, the Bank also informs the European Commission, IAOA and the supervisory authorities of other Member States. This information includes the structure of the group concerned.
CHAPTER II. - Conditions of licence
Section I^re. - General
Art. 32. In addition to the conditions set out in this Chapter, the Bank also takes into account the suitability of the company that solicits approval to meet the conditions for the exercise of the activity referred to in Part II of this Book and to achieve its development objectives under the conditions that require the proper operation of the insurance or reinsurance business sector and of the financial system as well as the protection of insurance, insured persons and beneficiaries.
Section II. - Societal form and object
Art. 33. Insurance or reinsurance companies are incorporated in the form of an anonymous corporation, a cooperative corporation, a mutual insurance association, a European corporation or a European cooperative corporation.
In addition, insurance companies that operate a non-life insurance activity in accordance with Article 34, § 2, may be incorporated as a mutual insurance company.
Insurance or reinsurance companies incorporated in one of the forms referred to in this section without being governed by the Corporations Code, are nevertheless subject to the obligations of anonymous companies under sections 67, 68, 73, 74, 75, 76, 98, 100, 101, 102, 173, 179, 195, and 1012 of the Corporations Code.
Art. 34. § 1^er. Without prejudice to article 18, paragraph 2,
1° insurance companies limit their object to the insurance activity and the transactions that flow directly from it, excluding any other commercial activity;
2° Reinsurance companies limit their object to reinsurance activity and related transactions, including a holding company function and activities related to the financial sector, as defined in section 2, point 8 of Directive 2002/87/EC.
§ 2. Derogation from paragraph 1^er, mutual insurance companies limit their activities to health insurance within the meaning of branch 2 referred to in Appendix I and, as a supplementary measure, to support under branch 18 referred to in Appendix I.
Affiliate to insurance under paragraph 1^er is reserved for the following persons:
1° with respect to mutualist companies established pursuant to Article 43bis, § 5, of the Act of 6 August 1990 on mutualities and national mutuality unions, persons affiliated with the affiliate(s) to the mutual insurance company;
2° in respect of mutual insurance companies created pursuant to Article 70, §§ 6, 7 and 8 of the Act of 6 August 1990 referred to above, the persons referred to in these same paragraphs.
Section III. - Programme of activities
Art. 35. § 1^er. The program of activities referred to in section 22 includes the following information or justifications:
1° the nature of the risks or commitments that the insurance or reinsurance company proposes to cover;
2° the type of reinsurance contracts that the reinsurance company proposes to conclude with transferring companies;
3° the guiding principles of the reinsurance insurance company and of the reinsurance insurance company;
4° the elements of the base funds corresponding to the absolute threshold of the minimum capital required;
5° the cost estimates for the implementation of the governance system, including the installation costs of the administrative services and the production network, the technical and financial means to meet these costs and, if the risks to be covered fall under branch 18 referred to in Appendix I, the means available to the insurance company for the provision of the promised assistance.
§ 2. In addition to the elements required in paragraph 1^er, the activity program contains, for the first three exercises:
1° a forecast balance;
2° the forecast for the solvency capital required, as provided for in section 151, based on the forecast balance referred to in 1°, and the calculation method used to establish these forecasts;
3° the forecast for the minimum required capital, as provided for in section 189, on the basis of the forecast balance referred to in 1°, as well as the calculation method used to establish these forecasts;
4° the forecasts for financial means for the coverage of technical provisions, the minimum required capital and the required solvency capital;
5° for non-life insurance and reinsurance:
(a) forecasts for management costs other than installation costs, including current general fees and commissions;
(b) forecasts for premiums or contributions and claims;
6° for life insurance: a plan showing in detail the revenue and expenditure forecasts for both direct operations and reinsurance acceptances and reinsurance transfers.
Art. 36. The registered insurance or reinsurance company presents a program of activities in accordance with section 35 when requesting an approval for the extension of its activities under section 19.
Section IV. - Clean funds
Art. 37. The insurance or reinsurance company demonstrates:
1° that it holds the eligible base funds necessary to reach the absolute threshold of the minimum capital required under section 189, § 1^er, 4° ;
2° that it is able to hold the eligible funds necessary to permanently cover the solvency capital required in accordance with Article 151;
3° that it is able to hold the eligible base funds necessary to permanently cover the minimum capital required under section 189.
Art. 38. § 1^er. The insurance or reinsurance company, which seeks approval for the extension of its activities in accordance with section 19, demonstrates that it has the eligible equity necessary to hold the required solvency capital and the minimum capital required under sections 151 and 189 respectively.
§ 2. Without prejudice to paragraph 1^er, the life insurance company that seeks approval for the extension of its activities to the risks included in branches 1 or 2 referred to in Appendix I in accordance with section 223, paragraph 2, demonstrates:
1° that it holds the eligible base funds necessary to reach both the absolute threshold of the minimum capital required in the case of life insurance companies and the absolute threshold of the minimum capital required in the case of non-life insurance companies, as referred to in Article 189, § 1^er4°, d);
2° that it undertakes to comply permanently with the minimum obligations referred to in 1°, in accordance with Article 225, § 2, paragraph 2.
§ 3. Without prejudice to paragraph 1^er, the insurance company carrying out non-life insurance activities for the risks included in sections 1 or 2 referred to in Appendix I, which seeks approval for the extension of its life insurance activities in accordance with section 223, paragraph 2, demonstrates:
1° that it holds the eligible base funds necessary to reach both the absolute threshold of the minimum capital required in the case of life insurance companies and the absolute threshold of the minimum capital required in the case of non-life insurance companies, as referred to in Article 189, § 1^er4°, d);
2° that it undertakes to comply permanently with the minimum obligations referred to in 1°, in accordance with Article 225, § 2, paragraph 2.
Section V. - Capital Holders
Art. 39. Accreditation is denied if the Bank has reasons to consider that the natural or legal persons referred to in section 23 do not have the necessary qualities to ensure the sound and prudent management of the insurance or reinsurance company.
The assessment of the qualities required to ensure a sound and prudent management of the insurance or reinsurance company is carried out with the following criteria:
1° the honesty of natural or legal persons referred to in Article 23;
2° the professional honesty and expertise of any person referred to in section 40 who will manage the activities of the insurance or reinsurance company;
3° the financial strength of the natural or legal persons referred to in section 23, particularly with regard to the type of activities carried out and planned within the insurance or reinsurance undertaking;
4° the ability of the insurance or reinsurance company to comply with and continue to comply with the prudential obligations arising out of this Act, the orders and regulations made for its execution and the enforcement measures of Directive 2009/138/EC, in particular the existence, within the group to which it belongs, of a structure that allows for effective monitoring, to effectively exchange information between the control authorities and to determine
5° the existence of reasonable grounds to suspect that an operation or attempt to bleach money or finance terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition may increase the risk of the transaction.
Section VI. - Leaders
Art. 40. § 1^er. The members of the legal board of directors and the executive committee of insurance or reinsurance companies, the persons responsible for the effective management as well as those responsible for independent oversight functions are exclusively natural persons.
Persons referred to in paragraph 1^er must always have the necessary professional honesty and expertise to exercise their function.
§ 2. The effective management of insurance or reinsurance companies must be entrusted to at least two physical persons.
Art. 41. Section 20 of the Act of 25 April 2014 is applicable to persons referred to in section 40.
Section VII. - Organization
Sub-section I^re. - General principles
Art. 42. § 1^er. Any insurance or reinsurance company has an adequate governance system, including monitoring measures, to ensure effective and prudent management of the company, including:
1° an adequate management structure based, at the highest level, on a clear distinction between the effective direction of the insurance or reinsurance company on the one hand, and control over that direction on the other hand, and providing, within the company, an adequate separation of functions and a mechanism for assigning responsibilities that is well defined, transparent and consistent;
2° an adequate administrative and accounting organization and internal control, including control procedures providing a reasonable degree of certainty as to the reliability of the reporting process
3° effective procedures for the identification, measurement, management, monitoring and internal reporting of risks to which the company is or could be exposed, including the prevention of conflicts of interest;
4° of independent oversight functions, namely key internal audit, risk management, compliance verification (compliance) and appropriate independent actuarial functions;
5° adequate integrity policy;
6° a compensation policy that ensures sound and effective risk management, preventing risk taking beyond the level of tolerance set by the company;
7° of control and security mechanisms in the IT field appropriate to the activities of the enterprise;
8° an adequate internal alert system, including a specific, independent and autonomous transmission mode, of breaches of the company's standards and codes of conduct;
9° the establishment of adequate business continuity measures to ensure the maintenance of critical data and functions or their recovery as soon as possible and the resumption within a reasonable time of the exercise of normal activities;
10° the establishment of appropriate structures and systems to meet the requests for information required by the Bank pursuant to Articles 201 and 312.
11° the establishment of procedures for detecting a deterioration of financial conditions and immediately informing the Bank when it occurs.
§ 2. The governance system referred to in paragraph 1^er is comprehensive and proportionate to the nature, extent and complexity of the risks inherent in the business model and the activities of the insurance or reinsurance company.
§ 3. The insurance or reinsurance company shall establish a memorandum of governance which shall include for the enterprise concerned and, where appropriate, the group or subgroup of which it is the parent company, the entire governance system referred to in paragraph 1^er and, in particular, written policies relating to risk management, internal control, internal audit and, where appropriate, outsourcing.
Without prejudice to the enforcement measures of Directive 2009/138/EC, if the insurance or reinsurance company is part of a group subject to the Bank's control, the memorandum established at the level of the insurance or reinsurance company may form part of the memorandum of that group.
§ 4. The provisions of subsections II to IV specify in specific areas the scope of the general obligations referred to in paragraphs 1^er and 2.
Art. 43. If there are close ties between the insurance or reinsurance company and other natural or legal persons, or if the insurance or reinsurance company is part of a group, these links or the legal structure of the group cannot hinder the exercise of the individual prudential control of the company or of the control of the group of which the company is a member.
If the insurance or reinsurance company has close ties with a natural or legal person under the law of a third country, the legislative, regulatory and administrative provisions applicable to that person or their implementation may not interfere with the exercise of the individual prudential control of the company or the control of the group of which the company is a party.
Sub-section II. - Societal bodies
Art. 44. The legal body of administration assumes the final responsibility of the insurance or reinsurance company.
To this end, the legal body of administration defines and supervises, including:
1° the strategy and objectives of the company;
2° the risk policy, including the general tolerance limits to risks.
Art. 45. § 1^er. Insurance or reinsurance companies incorporated in the form of anonymous corporation shall establish a steering committee within the meaning of section 524bis of the Corporate Code to which all the management powers of the board of directors are delegated. However, this delegation may not focus on the determination of general policy or on acts reserved for the board of directors by the other provisions of the Code of Companies or by this Act.
The steering committee shall be composed, except pursuant to section 56, § 3, of at least three persons who are members of the board of directors.
§ 2. The Board of Directors has a majority of directors who are not members of the steering committee.
§ 3. The position of chair of the board of directors may not be exercised by a member of the steering committee.
§ 4. The day-to-day management referred to in section 525 of the Corporate Code cannot be entrusted to a non-executive member of the Board of Directors.
Art. 46. § 1^er. The statutes of insurance or reinsurance companies incorporated in any other form than that of anonymous society provide for the establishment, within the legal organ of administration, of an organ called "management committee", to which is delegated all the powers of management of the legal organ of administration to the exclusion of the determination of general policy, of the acts reserved to the legal organ of administration by the present law of the companies or by
The steering committee shall be composed, except pursuant to Article 56, § 3, of at least three persons who are members of the legal body of administration.
§ 2. The legal body of administration has a majority of members who are not members of the steering committee referred to in paragraph 1^er.
§ 3. The function of chair of the legal body of administration cannot be exercised by a member of the steering committee.
§ 4. Daily management cannot be entrusted to a non-executive member of the legal body of administration.
Art. 47. Depending on the size and risk profile of an insurance or reinsurance company, the Bank may, in particular with respect to the group of which it is a party, authorize the Bank to waive, in whole or in part, the obligations set out in sections 45 and 46.
The exemption may include:
1° on the obligation to form a steering committee, without prejudice to the compliance with section 40, § 2; in this case, the obligations, by or under this Act, to the steering committee and its members shall be assumed by the persons responsible for the effective management;
2° on a cumulative role of member of the steering committee and president of the legal organ of administration.
Sub-section III. - Establishment of committees
within the legal body of administration
Art. 48. Without prejudice to the missions of the legal body of administration, insurance or reinsurance companies are, within this body, the following committees:
1st an audit committee;
2° a compensation committee;
3° a risk committee,
composed exclusively of members of the legal body of administration who are not executive members and of which at least one member is independent within the meaning of Article 526ter of the Code of Companies.
Art. 49. § 1^er. In addition to the requirements set out in section 48, members of the audit committee have a collective competence in the area of activities of the relevant insurance or reinsurance company and in the area of accounting and auditing. At least one member of the audit committee is responsible for accounting and/or auditing.
§ 2. The audit committee is at least responsible for:
1° follow-up to the financial information development process;
2° monitoring the effectiveness of the internal control and risk management systems of the insurance or reinsurance company;
3° the monitoring of the internal audit and its activities;
4° monitoring the legal control of the annual accounts and consolidated accounts, including the follow-up to the issues and recommendations of the authorized Commissioner;
5° the examination and monitoring of the independence of the authorized commissioner, in particular with regard to the provision of complementary services to the insurance or reinsurance company or to a person with which it has a close connection.
The audit committee shall report regularly to the legal body of administration on the exercise of its duties, at least during the establishment by it of the annual and consolidated accounts and periodic information referred to in sections 199, paragraph 2 and 201 respectively transmitted by the insurance or reinsurance company at the end of the social year and at the end of the first social semester.
The Bank may, by regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, specify and supplement on technical points the items listed in the list reproduced in this paragraph.
§ 3. The Approved Commissioner:
1° communicates to the audit committee each year the additional services provided to the insurance or reinsurance company and to the companies with which the insurance or reinsurance company has a close connection;
2° discusses with the audit committee the risks to its independence and the safeguards taken to mitigate these risks, recorded by the audit committee;
3° confirms each year in writing its independence to the audit committee in relation to the insurance or reinsurance company.
Art. 50. § 1^er. The compensation committee is composed in such a way that it can exercise a competent and independent judgment on compensation policies and practices and incentives created in terms of risk control, equity needs and liquidity position.
§ 2. The compensation committee shall issue an opinion on the compensation policy to be adopted by the legal body of administration and any amendments thereto.
§ 3. The Compensation Committee is responsible for the preparation of compensation decisions, including those that have an impact on risk and risk management in the relevant insurance or reinsurance company and on which the legal body of administration is called to decide. In preparing these decisions, the compensation committee shall take into account the long-term interests of shareholders, investors and other stakeholders of the insurance or reinsurance company and the public interest.
Paragraph 1^er is also applicable to decisions concerning the remuneration of persons in charge of independent oversight functions. In addition, the Compensation Committee provides direct supervision with respect to remuneration for independent supervisory officers.
Art. 51. The members of the Risk Committee individually have the knowledge, skills, experience and skills to enable them to understand and understand the strategy and level of risk tolerance for the insurance or reinsurance company.
The Risk Committee advises the legal body of administration on aspects related to the strategy and level of risk tolerance, both current and future. It assists the legal body of administration when it oversees the implementation of this strategy by the steering committee.
Art. 52. § 1^er. In insurance or reinsurance companies that meet on a consolidated basis at least two of the following three criteria:
(a) an average number of employees less than 250 people over the entire year concerned,
(b) a total of the balance sheet less than or equal to 43,000 euros,
(c) an annual net revenue of less than or equal to Euro50,000,
the constitution of the committees referred to in section 48 within the legal body of administration is not mandatory, but the functions assigned to these committees are then exercised by the legal body of administration as a whole. When, following an exemption granted under section 47, the chair of that body is an executive member, he does not preside over the legal body of administration when acting as one of the committees referred to in section 48.
§ 2. The Bank may grant an exemption from the requirement to establish a compensation committee within the legal board of directors to companies that do not meet the requirement set out in paragraph 1^er but whose organization allows adequate support of the legal body of administration and the steering committee in their respective tasks in the matter of compensation policy as referred to in Articles 77, § 5 and 80, § 3.
§ 3. The Bank may, in respect of the insurance or reinsurance companies that are subsidiary or sub-partners of a joint financial company, a joint holding company, an insurance holding company, a financial company, another insurance or reinsurance company, a credit institution, an investment company, an investment manager or a corporation
§ 4. Without prejudice to articles 49, § 1^erand 51, paragraph 1^er, insurance or reinsurance companies may provide that only one committee shall provide the missions to the Risk Committee and the Audit Committee.
Art. 53. The provisions of this Sub-section shall be without prejudice to the provisions of the Corporate Code relating to the audit committee and compensation committee within listed companies within the meaning of section 4 of this Code.
Sub-section IV. - Independent oversight functions
Art. 54. § 1^er. Insurance or reinsurance companies shall take the necessary measures to have the following independent monitoring functions on an ongoing basis:
1° a compliance verification function (compliance);
2° a risk management function;
3° an internal audit function;
4° an actuarial function.
Persons performing the duties referred to in paragraph 1^er are independent of the units and operational functions of the company and have the necessary prerogatives and resources for the proper performance of their functions. The remuneration of these persons is based on the achievement of the objectives related to their functions, regardless of the performance of the areas of controlled activities.
Persons responsible for the functions referred to in paragraph 1^er report directly to the legal body of administration at least once a year, on the execution of their mission, with information from the steering committee and, for the internal audit function, if any, through the audit committee.
§ 2. In its assessment of the adequacy of the functions referred to in paragraph 1^er, the Bank shall take into account the provisions of Article 42, § 2.
Art. 55. § 1^er. The compliance verification function (compliance) is intended to ensure compliance by the company with the members of its legal body of administration, the members of its steering committee, its effective officers, its employees, its agents and agents and sub-agents of insurance or reinsurance, the legal and regulatory provisions governing the insurance or reinsurance activity, in particular the rules of integrity and conduct that apply to that activity.
The compliance audit function also includes the assessment of the potential impact of any change in the legal environment on the activities of the insurance or reinsurance undertaking, as well as the identification and assessment of the risk of non-compliance.
Paragraph 1^er does not prejudice the provisions of section 87bis of the Act of 2 August 2002.
§ 2. In addition to the communication referred to in Article 54, § 1^er, paragraph 3, the person responsible for the compliance verification function (compliance) regularly informs and issues recommendations to the legal body of administration and to the steering committee on compliance with the legal and regulatory provisions referred to in paragraph 1^er.
Art. 56. § 1^er. The risk management function is structured to enable the implementation of the risk management system referred to in paragraph 2.
The risk management system includes the information strategies, processes and procedures necessary to detect, measure, control, manage and report on a continuous basis risks, at individual and aggregate levels, to which the enterprise is or could be exposed and the interdependencies between these risks.
§ 2. The risk management system is effective and properly integrated with the organizational structure and decision-making procedures of the insurance or reinsurance company and duly taken into account by those who actually run the business or who hold other key functions.
In particular, those who perform the risk management function are actively involved in the development of the company's risk strategy and all management decisions that have a significant risk impact and can provide a complete overview of the entire range of risks to which the company is exposed.
§ 3. The risk management function is headed by a member of the steering committee, the only particular function for which he is individually responsible.
Derogation from paragraph 1^er,
1° having regard to the nature, extent and complexity of the risks inherent in the activity of the insurance or reinsurance company, and taking into account the appropriateness of the organization of the risk management function at the level of the group of which the enterprise concerned is part, the Bank may authorize that a member of the company's staff that is part of the higher management assumes the function of the conflict as long as it does not exist
2° the member of the management committee responsible for the risk management function may also be responsible for the compliance verification function (compliance) as well as the responsibility for the actuarial function that is not generating risks, provided that the exercise of the three independent oversight functions remains separate and does not generate conflicts of interest.
In insurance or reinsurance companies that have a total balance of more than 3 billion euros, the benefit of paragraph 2, 2°, is subject to the prior authorization of the Bank.
Art. 57. In addition to the communication referred to in articles 54, § 1^er, paragraphs 3 and 55, § 2, the persons responsible for the risk management and compliance audit functions (compliances) shall report on initiative to the legal body of administration, without having to refer to the steering committee, of concerns, and shall notify, if any, of any changes in the risks affecting or likely to affect the company, including impairing its reputation.
Paragraph 1^er shall not prejudice the responsibilities of the legal body of administration under this Act and European regulations.
Art. 58. § 1^er. The purpose of the internal audit function is to provide an independent evaluation of the quality and efficiency of the internal control, risk management and corporate governance system to the legal administrative body and steering committee.
Insurance or reinsurance companies guarantee in an audit charter, at a minimum, the independence of the internal audit function and the extent of its duties to any activity and entity of the enterprise, including in the event of subcontracting.
§ 2. The person responsible for the internal audit function shall communicate its findings and recommendations to the legal body of administration and to the steering committee.
Art. 59. § 1^er. The actuarial function is:
1° coordinate the calculation of technical provisions;
2° ensure the appropriateness of the methodologies, underlying models and assumptions used for the calculation of technical provisions;
3° assess the sufficiency and quality of the data used in calculating technical provisions;
4° compare best estimates to empirical observations;
5° inform the legal body of administration and the steering committee of the reliability and adequacy of the calculation of technical provisions;
6° supervise the calculation of technical provisions in the cases referred to in section 137, paragraph 2;
7th issue an opinion on the overall policy of subscription;
8° issue a notice on the adequacy of reinsurance arrangements;
9° contribute to the effective implementation of the risk management system referred to in section 84, in particular with respect to risk modelling underpinning the calculation of capital requirements under sections 74 and 75, and with respect to the assessment referred to in section 91;
10° issue an opinion on the policy of beneficiary and returnee participations and on compliance with the regulations.
§ 2. The actuarial function is exercised by persons who have knowledge of actuarial and financial mathematics to the extent, scope and complexity of the risks inherent in the activity of the insurance or reinsurance company and who can demonstrate a relevant experience in the light of applicable professional standards and other standards.
Art. 60. The Bank may, without prejudice to the provisions of sections 48 to 59, specify, by way of regulation made under section 12bis, § 2 of the Act of 22 February 1998, what is to be heard by adequate management structure, adequate internal control, adequate independent risk management function, adequate internal audit function, adequate actuarial function and, on the advice of the MSDS, specific compliance verification function (compliance)
Section VIII. - Central Administration
Art. 61. The central administration of insurance or reinsurance companies is located in Belgium.
Section IX. - Protection of insurance creditors
Art. 62. Insurance companies adhere to a life insurance system funded by them to ensure, in the event of a failure, compensation from insurance creditors with respect to life insurance contracts with guaranteed return under section 21 referred to in Appendix II or any other category of contracts covered by such a system established by or under the law, and subject to the conditions determined by the rules governing these systems.
PART II. - Operating conditions of activity
CHAPTER I^er. - General
Art. 63. Insurance or reinsurance companies must comply with the conditions prescribed by or under Chapter II of Part I^er of this Book.
CHAPTER II. - Changes in capital structure
Art. 64. Without prejudice to the Act of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, a qualified interest in an insurance or reinsurance company of Belgian law, or to make, directly or indirectly, an increase of that qualified interest in an insurance or reinsurance company of Belgian law,
The Bank publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the acquirer candidate and the intended acquisition, which are necessary to conduct the evaluation and which must be communicated to the Bank at the time of notification referred to in paragraph 1^er.
Art. 65. § 1^er. Severely, and in any event within two business days after receipt of the notification and complete information referred to in Article 64, and after possible subsequent receipt of the information referred to in paragraph 2, the Bank shall acknowledge receipt in writing to the applicant. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Bank for the purposes of the assessment referred to in section 66 shall not exceed sixty working days from the date of receipt of the notification and all required documents on the basis of the list referred to in section 64, paragraph 2.
§ 2. The Bank may, during the evaluation period, and no later than the fiftieth business day of the evaluation period, request additional information to complete its evaluation. This request is made in writing and specifies the necessary additional information.
During the period between the date of the Bank's request for information and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Bank may make, beyond the deadline set in accordance with the preceding paragraph, other requests to collect additional information or clarifications, but these requests do not, however, result in a suspension of the assessment period.
§ 3. The Bank may extend the suspension referred to in paragraph 2, paragraph 2, to thirty business days:
1° if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
2° if the recipient candidate is a natural or legal person who is not subject to supervision under:
(a) Directive 2009/138/EC;
(b) Directive 2009/65/EC;
(c) Directive 2011/61/EU of the European Parliament and the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulation (EC) No 1060/2009 and (EU) No 1095/2010;
(d) Directive 2014/65/EU of the European Parliament and the Council of 15 May 2014 on financial instrument markets and amending Directive 2002/92/EC and Directive 2011/61/EU;
(e) Directive 2013/36/EU.
Art. 66. In assessing the notification and information referred to in Article 64 and the additional information referred to in Article 65, § 2, the Bank shall, in order to guarantee the sound and prudent management of the insurance or reinsurance enterprise referred to in the acquisition contemplated and taking into account the likely influence of the acquirer candidate on the insurance or reinsurance undertaking, the appropriateness of the acquirer candidate and the soundness envisaged in Article 39.
The Bank may, within the course of the assessment period referred to in section 65, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in section 39, paragraph 2, that the acquirer candidate does not have the necessary qualities to ensure a sound and prudent management of the insurance or reinsurance undertaking or if the information provided by the acquirer candidate is not provided.
If the Bank decides, at the end of the evaluation, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the evaluation period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the evaluation period, the Bank did not object to the proposed acquisition, it is deemed to be approved.
The Bank may set a maximum time limit for the conclusion of the proposed acquisition and, if necessary, extend it.
Art. 67. The Bank shall conduct the assessment referred to in section 65 in full consultation with any other control authority concerned and, if applicable, with the MSDS if the applicant acquires:
1° an insurance company, a reinsurance company, a credit institution, an investment company, an OPCA manager or a collective investment organization management company approved under the law of another Member State, or, as the case may be, by the FSMA;
2° the parent company of a company having one of the qualities referred to in 1°;
3° a natural or legal person controlling a company having one of the qualities referred to in 1°.
To this end, the Bank shall, as soon as possible, exchange with these authorities any essential or relevant information for the evaluation. In this context, it shall, upon request, communicate any relevant information and, on its own initiative, any essential information.
In cases referred to in paragraph 1^erany decision of the Bank mentions any notices or reservations made by the competent authority responsible for the applicant acquirer or, as the case may be, by the MSDS.
Art. 68. Any natural or legal person who has made the decision to cease holding, directly or indirectly, qualified participation in an insurance or reinsurance business shall notify the Bank in writing beforehand and shall communicate the amount of its interest after the assignment. Such a person also notify the Bank of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the insurance or reinsurance company ceases to be its affiliate after the assignment.
Art. 69. In the event of forbearance to make the prior notifications prescribed by sections 64 or 68 or in the event of an acquisition or increase of an interest despite the opposition referred to in section 66, paragraph 2, the President of the Commercial Court in whose jurisdiction the insurance or reinsurance company has its seat, ruling as a reference, may take the measures referred to in section 516, § 1^er and 4 of the Corporate Code.
The procedure is initiated by a quotation from the Bank.
Article 516, § 3, of the Corporate Code is applicable.
Art. 70. Without prejudice to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in conjunction with others, who has acquired, directly or indirectly, an interest in a Belgian insurance or reinsurance company, or who has carried out, directly or indirectly, an increase in its participation in an insurance or reinsurance company of Belgian law, in such a way that the proportion of voting rights or shares
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of an insurance or reinsurance company that did not constitute a qualified participation.
Notifications referred to in subparagraphs 1^er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of, and the percentage of voting rights and capital of the insurance or reinsurance undertaking held following the acquisition or assignment, as well as the necessary information that is published by the Bank on its website in accordance with Article 64, paragraph 2.
Art. 71. Insurance or reinsurance companies shall, as soon as they are aware, communicate to the Bank the acquisition or disposition of their securities or shares that result in the crossing up or down of one of the thresholds referred to in section 64.
Similarly, they shall forthwith communicate to the Bank any information they are aware of, such as to influence the situation of their shareholders or associates in respect of the valuation criteria referred to in section 39, paragraph 2. The same obligation of information lies with the persons referred to in section 23.
Under the same conditions and at least once a year, they communicate to the Bank the identity of the shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Bank the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Corporate Code in the event that the Articles of Association do not prescrib their declaration to the Bank.
Art. 72. Where the Bank has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in an insurance or reinsurance business is likely to jeopardize the sound and prudent management of that business, and without prejudice to the other measures provided for in this Act, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; the Bank may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
If the Bank fails to assign within the time limit, the Bank may order the sequester of the rights of associates to any institution or person it determines. The receiver informs the insurance or reinsurance company that amends the register of shares or shares of nominal partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of a healthy and prudent management of the insurance or reinsurance company and in the interest of the holder of the partner rights that have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners The sums collected by the receiver for a dividend or other title shall be paid by the holder referred to above only if the holder has satisfied the injunction to paragraph 1^erTwo.
The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder.
The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above.
The remuneration of the receiver is fixed by the Bank and is borne by the holder mentioned above. The receiver may charge his or her compensation for the amounts paid to him or her as a receiver or the holder referred to above for the purposes or as a consequence of the transactions referred to in this article.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1^er, 2°, first sentence, or notwithstanding a suspension of their exercise in accordance with paragraph 1^er, 1°, the commercial court in whose jurisdiction the insurance company has its seat may, upon request of the Bank, declare the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered.
Art. 73. When the acquisition of an interest in an insurance or reinsurance company is carried out by a company under the law of a third country, so that the insurance or reinsurance company becomes the subsidiary, the Bank informs the European Commission, the IAOPA and the supervisory authorities of other Member States.
CHAPTER III. - General operating conditions
Section I^re. - Minimum equity funds
Art. 74. Insurance or reinsurance companies own eligible funds within the meaning of sections 140 to 150 that permanently cover the credit capital required under section 151.
Art. 75. In addition, insurance or reinsurance companies have eligible base funds within the meaning of sections 140 to 150, covering the minimum required capital in accordance with section 189.
Section II. - Retention of documents
Art. 76. Insurance and reinsurance companies retain the documents relating to their activities at their headquarters or at any other place previously authorized by the Bank in consultation with the MSDS.
Without prejudice to other legal provisions governing the preservation of documents, the Bank may, by regulation made in accordance with Article 12bis, § 2 of the Act of 22 February 1998, set the time limit and modalities for the preservation of the documents referred to in paragraph 1^er.
Section III. - Management and leadership
Sub-section I^re. - Monitoring and evaluation
by the legal body of administration
Art. 77. § 1^er. The legal body of administration periodically assesses, and at least once a year, the effectiveness of the corporate governance system referred to in section 42 and its compliance with the obligations provided by or under this Act and, where appropriate, the enforcement measures of Directive 2009/138/EC. It ensures that the steering committee takes the necessary steps to address any deficiencies.
§ 2. The legal body of administration exercises effective control over the steering committee and oversees decisions taken by the management committee and the effective management of the company.
§ 3. In particular, the legal body of administration assesses the proper functioning of the independent control functions referred to in section 54.
§ 4. The annual report of the legal body of administration justifies the individual and collective competence of the members of the committees referred to in section 48.
§ 5. The legal body of administration regularly adopts and evaluates, and at least once a year, the general principles of compensation policy and ensures the monitoring of its implementation. As part of this assessment, it may use independent oversight functions.
§ 6. The legal body of administration shall ensure that the governance memorandum referred to in Article 42, § 3, and that the updated governance memorandum is transmitted to the Bank.
§ 7. The legal body of administration approves a written policy guaranteeing the permanent adequacy of the information provided to the Bank pursuant to sections 312 to 316;
§ 8. The legal body of administration approves, prior to publication, the report on solvency and the financial situation referred to in section 95. It ensures the annual update of this report and the transmission to the Bank of the updated report.
§ 9. The legal body of administration determines what actions should be taken as a result of the findings and recommendations of the internal audit and ensures that these actions are completed.
Art. 78. § 1^er. In particular, the legal authority ensures the integrity of financial reporting and accounting systems, including operational and financial controls. It assesses the operation of internal control at least once a year and ensures that this control provides a reasonable degree of certainty as to the reliability of the reporting process, so that, in particular, annual accounts and financial information are consistent with existing regulations.
§ 2. The legal body of administration oversees the publication and communication process required by or under this Act and, where applicable, by European regulations.
Art. 79. The Authorized Commissioner reports to the legal body of administration, if any, through the audit committee on important issues arising in the exercise of its legal audit mission, and in particular on significant weaknesses in internal control in the financial reporting process.
Sub-section II. - Action to be taken by the Executive Committee
Art. 80. § 1^er. Without prejudice to the powers vested in the legal body of administration and under its supervision, the steering committee shall take the necessary measures to ensure the respect and implementation of the provisions of Article 42.
§ 2. The steering committee shall report at least once a year to the legal board of directors, the authorized commissioner and the Bank on the assessment of the effectiveness of the governance system referred to in section 42 and the measures taken, if any, to remedy any deficiencies that may have been found. The report justifies how these measures meet the legal and regulatory requirements.
§ 3. Without prejudice to his other duties, he implements the compensation policy adopted by the legal body of administration.
§ 4. The steering committee shall also implement the necessary measures to ensure the control of the risks referred to in Section IV of this Chapter.
§ 5. The Board of Directors of the insurance or reinsurance company declares to the Bank that the information transmitted to it in accordance with sections 312 to 316 is complete and correctly reflect the situation of the enterprise in the light of its risk profile and is established in accordance with the requirements set out in or under this Act, the enforcement measures of Directive 2009/138/EC and the Bank's instructions.
Sub-section III. - Appointments,
resignations and exercise of external functions
Art. 81. § 1^er. Insurance or reinsurance companies priorly inform the Bank of the proposal to appoint members of the legal board of directors and members of the steering committee or, in the absence of a steering committee, persons responsible for effective management, as well as persons responsible for independent oversight functions.
As part of the information required under paragraph 1^er, insurance or reinsurance companies shall provide the Bank with all documents and information to enable it to assess whether the persons whose appointment is proposed have the necessary professional honourability and expertise to perform their duties in accordance with section 41.
Paragraph 1^er is also applicable to the proposal to renew the appointment of the persons referred to in the proposal and to the non-renewal of their appointment, revocation, termination or resignation.
§ 2. Appointment of persons referred to in paragraph 1^er is subject to prior approval by the Bank.
When it comes to the appointment of a person who is first proposed to a function referred to in subsection 1^er in a company under the Bank's control pursuant to section 36/2 of the Act of 22 February 1998, the Bank consults with FSMA beforehand.
FSMA shall notify the Bank within one week of receipt of the notice request.
§ 3. Insurance or reinsurance companies inform the Bank of the possible division of tasks between the members of the legal board of directors, between the members of the steering committee or, in the absence of a steering committee, between those responsible for the effective management.
Significant changes in the division of duties referred to in paragraph 1^ergive rise to the application of paragraphs 1^er and 2.
Art. 82. Persons who are responsible for the independent oversight functions referred to in Article 54 cannot be dismissed without the prior consent of the legal body of administration.
Art. 83. § 1^er. The members of the legal board of directors, the members of the steering committee and, in the absence of a steering committee, the persons in charge of the effective management spend the time necessary to carry out their duties within the company.
§ 2. Without prejudice to paragraph 1^er and section 42, members of the organs of the insurance or reinsurance company and any person who, under any name and in any capacity, take part in its administration or management may, in representation or not of the insurance or reinsurance company, exercise the terms of office of a Belgian administrator or manager or take part in the administration or management of a commercial or commercial enterprise,
§ 3. The external functions referred to in paragraph 2 are governed by internal rules that the insurance or reinsurance company adopts and enforces in order to pursue the following objectives:
1° to prevent the exercise of these functions by persons participating in the effective management of the insurance or reinsurance company from affecting the availability required for the effective management exercise;
2° to prevent in the head of the insurance or reinsurance company the occurrence of conflicts of interest and the risks associated with the performance of these functions, including in the case of initiation operations;
3° ensure adequate advertising of these functions.
The Bank sets out the terms and conditions of these obligations by regulation adopted pursuant to Article 12bis, § 2, of the Law of 22 February 1998.
§ 4. Social agents appointed upon presentation of the insurance or reinsurance undertaking must be members of the management committee of the insurance or reinsurance company or persons designated by the steering committee.
§ 5. Members of the legal board of directors who are not members of the board of directors of the insurance or reinsurance company may not exercise a mandate in a corporation in which the insurance or reinsurance company holds an interest only if they do not participate in the current management of that corporation.
§ 6. The members of the steering committee or, in the absence of a steering committee, the persons who participate in the effective management of the insurance or reinsurance undertaking may not exercise a mandate that includes participation in current management only if it is:
1° of a corporation referred to in section 89, paragraph 1^er, Regulation (EU) No 575/2013 of the European Parliament and Council of 26 June 2013 concerning prudential requirements for credit institutions and investment companies and amending Regulation (EU) No 648/2012, with which the insurance company has close ties;
2° of a statutory debt institution within the meaning of the Act of August 3, 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and the debt institutions or a statutory collective investment agency within the meaning of the Act of August 3, 2012 referred to above or the Act of April 19, 2014 on alternative collective investment organizations and their managers;
3° of a company whose activity lies in the continuation of the insurance or reinsurance activity, such as the intermediation in insurance and reinsurance or the settlement of claims;
4° of a heritage society in which such persons or their families have a significant interest in the normal management of their heritage.
Individuals who participate in the effective management of a mutual insurance company may also participate in the day-to-day management of a mutuality, a national union of mutualities or another mutualist corporation referred to in the Act of 6 August 1990 to which members of this mutual insurance company may affiliate.
§ 7. Insurance or reinsurance companies shall promptly notify the Bank of the duties performed outside the insurance or reinsurance undertaking by persons referred to in paragraph 1^er for the purpose of monitoring compliance with the provisions of this article.
The Bank specifies the terms and conditions of the communication referred to in paragraph 1^er.
Section IV. - Risk management
Art. 84. Insurance or reinsurance companies shall ensure the control of their risks in accordance with the provisions of this Section.
Art. 85. § 1^er. The risk management system provided for in Article 56 covers the risks to be taken into account in the calculation of the solvency capital required in accordance with Article 151, § 4, as well as the risks that do not fully enter or enter into this calculation.
§ 2. In addition, the risk management system covers at least the following areas:
1st the subscription and provisioning;
2° active-passive management (asset-liability management - ALM);
3° investments, especially in derivative instruments and similar commitments;
4° liquidity and concentration risk management;
5° operational risk management;
6° reinsurance and other risk mitigation techniques.
Written risk management policies referred to in Article 42, § 3, include policies covering the areas listed in this paragraph.
Art. 86. When insurance or reinsurance companies apply the equalizer adjustment referred to in section 129 or the volatility correction referred to in section 131, they establish a liquidity plan that includes a forecast of incoming and outgoing cash flow in respect of assets and liabilities subject to these adjustments and corrections.
Art. 87. With respect to the management of assets and liabilities, insurance or reinsurance companies regularly assess:
1° the sensitivity of their technical provisions and their own funds eligible for assumptions underpinning the extrapolation of the relevant curve of the unsafe interest rates referred to in Article 126, § 2;
2° in case of application of the equalizer adjustment referred to in section 129:
(a) the sensitivity of their technical provisions and their own funds eligible for the assumptions underlying the calculation of the equalizer adjustment, including the calculation of the fundamental margin referred to in Article 130, § 1^er, 2°, and the potential effects of a forced sale of assets on their own eligible funds;
(b) the sensitivity of their technical provisions and their own funds eligible for changes in the composition of the assigned asset portfolio;
(c) the consequences of a reduction in the equalizer adjustment to zero;
3° in case of application of the volatility correction referred to in section 131:
(a) the sensitivity of their technical provisions and their own funds eligible for the assumptions underlying the calculation of the volatility correction and the potential consequences of a forced sale of assets on their eligible funds;
(b) the consequences of a zero volatility correction reduction.
Insurance or reinsurance companies submit annually the assessments referred to in paragraph 1^er, to the Bank as part of the communication of information referred to in section 312. In the event that the reduction of the equalizer adjustment or zero volatility correction would result in non-compliance with the required solvency capital, the company also submits an analysis of the measures it could take to restore the level of eligible equity corresponding to the required solvency capital or to reduce the risk profile to ensure compliance with the required solvency capital.
When the correction for volatility referred to in section 131 is applied, the written risk management policy referred to in section 42, § 3, includes a policy on the criteria for applying the volatility correction.
Art. 88. With respect to investment risk, insurance or reinsurance companies demonstrate that they meet the requirements of sections 190 to 198.
Art. 89. In order to avoid excess confidence in external credit assessment institutions when using external credit assessments for the calculation of the required technical provisions and solvency capital, insurance or reinsurance companies verify, as part of their risk management, the appropriateness of external credit assessments by using, where appropriate, additional assessments to ensure that they are not dependent on external credit assessments.
Art. 90. For insurance or reinsurance companies using a partial or integral internal model that has been approved in accordance with sections 167 and 168, the risk management function covers the following additional tasks:
1° the design and implementation of the internal model;
2° the test and validation of the internal model;
3° the documentary monitoring of the internal model and any modifications made to it;
4° the analysis of the performance of the internal model and the production of synthesis reports concerning this analysis;
5° the information of the legal body of administration and the steering committee on the performance of the internal model by suggesting the elements to be improved, and the communication to these bodies of the state of progress of efforts to remedy the weaknesses detected.
Section V. - Internal risk assessment
(Own Risk and Solvency Assessment)
Art. 91. § 1^er. As part of its risk management system, the insurance or reinsurance company conducts an internal risk and solvency assessment (Own Risk and Solvency Assessment or "ORSA").
The evaluation includes at least the following:
1° the overall need for solvency, taking into account the specific risk profile and the general limits of risk tolerance and the company's strategy, approved by the legal body of administration;
2° the permanent compliance with the capital requirements of Section II of Chapter VI and the requirements for the technical provisions of Section I^reSection II of Chapter VI;
3° the extent to which the company's risk profile differs from the assumptions underlying the solvency capital required under section 151, whether calculated using the standard formula in accordance with sections 153 to 166 or using an internal, partial or integral model, in accordance with sections 167 to 188.
§ 2. For the purposes of paragraph 1^er, paragraph 2, 1°, the company concerned shall establish procedures proportionate to the nature, extent and complexity of the risks inherent in its activity and which allow it to properly identify and assess the risks to which it is or could be exposed in the short and long term. The company demonstrates the relevance of the methods it uses for this evaluation.
§ 3. When the insurance or reinsurance company applies the equalizer adjustment referred to in section 129, the volatility correction referred to in section 131 or the transitional measures referred to in sections 668 and 669, it assesses compliance with the capital requirements referred to in subsection 1^er, paragraph 2, 2°, both taking into account and without taking into account these transitional adjustments and corrections and measures.
§ 4. In the case referred to in paragraph 1^er, paragraph 2, 3°, where an internal model is used, the assessment is carried out in parallel to the recalibration that aligns the results of the internal model with the risk measurement and calibration that underlie the solvency capital required.
§ 5. The internal risk and solvency assessment is an integral part of the business strategy and is consistently reflected in the company's strategic decisions.
§ 6. Insurance or reinsurance companies conduct the assessment referred to in subsection 1^er at least once a year, as well as immediately following any significant changes in their risk profile.
§ 7. Insurance or reinsurance companies inform the Bank of the findings of each internal risk and solvency assessment, as part of the information to be provided under section 312.
§ 8. The internal risk and solvency assessment is not used to calculate a required amount of capital. The required solvency capital is adjusted only in accordance with sections 323, 373 to 379 and 383.
Section VI. - Use of subcontracting
Art. 92. The insurance or reinsurance undertaking that exempts from operational functions, activities or tasks shall retain full responsibility for the fulfilment of all of its obligations under this Act or for the enforcement of Directive 2009/138/EC.
The subcontracting of operational tasks cannot result in one of the following consequences:
1° seriously impair the quality of the insurance or reinsurance corporate governance system;
2° unduly increase operational risk;
3° compromising the Bank's ability to verify that the insurance or reinsurance company meets its obligations under or under this Act or by the enforcement measures of Directive 2009/138/EC;
4° to adversely affect the continued delivery of a satisfactory level of service with respect to insurance licensees, insured persons and beneficiaries of insurance contracts or persons affected by the performance of reinsurance contracts.
Insurance or reinsurance companies inform the Bank in advance and in due course of their intention to subcontract important or critical functions, activities or operational tasks, as well as any significant subsequent developments in these tasks.
Section VII. - Limitation-prone operations
or prohibition and invalidity payments
Art. 93. § 1^er. Insurance or reinsurance companies may not directly or indirectly grant loans, credits or guarantees and insurance contracts
1° to the members of their legal body of administration, the members of their steering committee or any person participating in their effective management and the general agents;
2° to persons referred to in Article 23, paragraph 1^er and members of their various bodies and persons participating in their effective leadership;
3° to companies or institutions in which the persons referred to in the 1°, hold qualified participation or exercise a function referred to in the 1°;
4° to persons related to persons subject to 1°. For this purpose, the spouses, the partners under their national law are considered to be the equivalent of a spouse and the parents in the first degree,
under conditions, up to amounts and with normal market guarantees.
Loans, credits and guarantees referred to in paragraph 1^er must be the subject of express information, within a time limit allowing the legal body to oppose it, when they exceed, on a cumulative basis for a particular person, company or institution, the amount of 100,000 euros. Regardless of the organ called to decide, members with a direct or indirect personal or functional interest may not sit.
The loans, credits and guarantees referred to in paragraph 2 shall be notified to the Bank in accordance with the periodicity and manner determined by the Bank.
The Bank may, if the operations referred to in paragraph 1^er, have not been concluded on the normal market conditions, require the adaptation of the terms agreed upon on the date that these transactions have taken effect. If not, the members of the legal body of administration who made the decision are jointly responsible for the difference to the company.
§ 2. By derogation from the provisions of the Corporate Code and notwithstanding paragraph 1^er, no loan, credit or guarantee, including by way of a credit or credit insurance contract, may be made, directly or indirectly, to a person in order to allow him or her, directly or indirectly, to acquire or subscribe shares or shares or any other securities conferring a right to dividends, insurance or reinsurance or a close partnership with which he or she exists a right with which he or she has a right to
Art. 94. In the event of a bankruptcy of an insurance or reinsurance business, there is no and no effect on the mass, the payments made by that company, either in cash or otherwise, to its members of the legal board of directors and its members of the steering committee, as an ash or other profit-sharing, during the two years preceding the period determined by the court as that of the termination of its payments.
Paragraph 1^er does not apply if the court recognizes that no serious and characterized fault of these persons has contributed to bankruptcy.
Section VIII. - Communication of information
on the situation of the insurance or reinsurance company
Art. 95. Insurance or reinsurance companies publish annually, taking into account the information required in Article 312, § 3, and the principles set out in Article 312, § 4, a report on their solvency and financial situation (Solvency and Financial Condition Report or "SFCR").
Art. 96. § 1^er. The solvency and financial situation report referred to in Article 95 contains the following information:
1° a description of the activity and results of the company;
2° a description of the governance system and an assessment of its adequacy to the corporate risk profile;
3° a description, made separately for each risk category, risk exposure, risk concentrations, risk mitigation and risk sensitivity;
4° a description, made separately for assets, technical provisions and other liabilities, of the bases and methods used for their assessment, with an explanation of any major difference in the bases and methods used for their assessment in the financial statements;
5° a description of how regulatory capital is managed, including at least the following:
(a) the structure and amount of capital, as well as its quality;
(b) the amounts of the solvency capital required and the minimum capital required;
(c) the option referred to in section 162 that is used for the calculation of the solvency capital required;
(d) information to properly understand the main differences between the underlying assumptions of the standard formula and those of any internal model used by the company to calculate its required solvency capital;
(e) in the event of a failure to meet the minimum requirement of required capital or a significant breach of the required solvency capital requirement, which occurred during the period under review and notwithstanding that the problem was subsequently resolved, the amount of the gap identified with an explanation of its origin and consequences, as well as any corrective action taken.
§ 2. If the equalizer adjustment referred to in section 129 is applied, the description referred to in subsection 1^er, 4° includes a description of the equalizer adjustment and the bond portfolio as well as the assets of the assigned portfolio to which the equalizer adjustment applies, as well as a quantification of the effects of a cancellation of the equalizer adjustment on the financial situation of the company.
The description referred to in paragraph 1^er, 4° also includes a statement indicating whether the volatility correction referred to in section 131 is used by the company concerned and a quantification of the effects of a cancellation of the volatility correction on the financial situation of the company.
§ 3. The description referred to in paragraph 1^er, 5°, (a), includes an analysis of any significant change in relation to the previous reporting period and an explanation of any significant difference observed in the financial statements in the value of the items considered, as well as a brief description of the transferability of capital.
§ 4. Publication of the required solvency capital referred to in paragraph 1^er, 5°, b), separate the amount calculated in accordance with the provisions of Section II of Chapter VI, and the amount of any additional capital requirement imposed in accordance with section 323, or the effect of the specific parameters that the insurance or reinsurance undertaking is required to use under section 166. This publication includes concise information on why the Bank has imposed this additional capital requirement.
The publication of the required solvency capital is accompanied, where appropriate, by an indication that its final amount remains subject to an assessment under the Bank's control.
§ 5. The information required under this section shall be published in extenso or, by authorization of the Bank, by reference to equivalent information, in its nature and scope, published under other legal or regulatory provisions.
Art. 97. § 1^er. In the event of a major event that significantly affects the relevance of the information provided under sections 95 and 96, insurance or reinsurance companies publish appropriate information on the nature and effects of that major event.
§ 2. For the purposes of paragraph 1^erare at least considered as a major event the following circumstances:
1° the observation of a deviation from the minimum required capital and the fact that the Bank considers that the company will not be able to submit a realistic short-term funding plan or that it does not get this plan within one month of the date the difference was observed;
2° the observation of a significant deviation from the required solvency capital and the fact that the Bank does not have a realistic recovery strategy within two months from the date the gap was observed.
In the case referred to in paragraph 1^er, 1°, the company immediately publishes the amount of the discrepancy, with an explanation as to its origin and consequences and any corrective action taken. If, despite a short-term funding plan initially considered realistic, a deviation from the minimum required capital was not corrected three months after it was found, the amount of this gap is published at the expiry of this period, with an explanation as to its origin and consequences, including the corrective action taken and any new corrective action planned.
In the case referred to in paragraph 1^er, 2°, the company immediately publishes the amount of the deviation found, with an explanation as to its origin and consequences and any corrective action taken. If, despite a recovery strategy initially considered realistic, a significant deviation from the required solvency capital has not been corrected six months after it has been found, the amount of this deviation is published at the expiry of this period, with an explanation as to its origin and consequences, including the corrective measures taken and any new corrective action planned.
Art. 98. Insurance or reinsurance companies may publish on their initiative any information or explanation relating to their creditworthiness and financial situation, the publication of which is not already required under sections 95 to 97.
Art. 99. Insurance or reinsurance companies establish appropriate structures and systems to meet the requirements set out in sections 95 to 97, as well as a written policy to ensure the permanent adequacy of any information published in accordance with sections 95 to 97.
Art. 100. The Bank may authorize an insurance or reinsurance company not to publish any information referred to in Article 96, § 1^er, 1°, 4°, and § 2, in cases where:
1° the publication of this information would give competitors of the company concerned an undue advantage;
2° the company is bound to a confidentiality obligation due to obligations with respect to insurance or relationships with other counterparties.
When the non-publication of information is authorized by the Bank, the company concerned indicates this in its report on its creditworthiness and financial situation and explains the reasons.
In the case of an insurance company, the authorization referred to in this section is granted or denied only after the Bank has sought the advice of the MSDS. The latter renders its notice within fifteen days of receipt of the request. The absence of an opinion within this period is equivalent to a favourable opinion.
Art. 101. The Bank may specify the content and format of the information provided for in this Section by regulation adopted under Article 12bis, § 2, of the Act of 22 February 1998.
CHAPTER IV. - Portfolio transfer
and other special operations
Art. 102. Subject to the Bank's prior authorization:
1° strategic decisions of an insurance or reinsurance company;
2° mergers involving an insurance or reinsurance company, as well as insurance or reinsurance companies;
3° the assignment of all or part of the activities, including all or part of a portfolio involving the assignment of rights and obligations arising from insurance or reinsurance contracts.
The Bank takes action within three months of receiving a complete project file. It may only refuse its authorization for reasons that are consistent with the company's ability to comply with the provisions provided by or under this Act or with the enforcement measures of Directive 2009/138/EC or that are consistent with the sound and prudent management of the company or if the decision is likely to significantly affect the stability of the financial system. Without prejudice to Article 104, § 1^er, 2°, if it does not intervene within the period set out above, the authorization is deemed to be acquired.
In addition, when dealing with insurance contracts relating to risks or commitments in Belgium, the assignments referred to in paragraph 1^er, 3° for the benefit of an insurance company of a third country are only allowed if the Belgian branch of this insurance company intervenes as a transferee involving the respect in its leader of the legal and regulatory constraints inherent to the risks and commitments assigned.
Art. 103. The Bank determines, on a case-by-case basis, according to the particularities of the operation and the enterprise concerned or the companies concerned, the contents of the record relating to the transactions referred to in section 102. At the very least, the record of operations referred to in section 102, paragraph 1^er, 3° contains:
1° identification of counterparty to the disposal agreement;
2° a description of the contracts to be transferred;
3° the assets and liabilities to be transferred;
4° the indication of Member States and third countries where the risks and commitments to be transferred are located;
5° the indication of the Member States in which the transferor has a branch concerned by the transfer;
6° any other information requested by the Bank for the authorization of the assignment.
Art. 104. § 1^er. In addition to the conditions referred to in Article 102, paragraph 2, the Bank's agreement cannot be given in respect of transactions referred to in Article 102, paragraph 1^er3°, if satisfied with the following conditions:
1° if the transferee enterprise falls under the right of another Member State, the control authorities of that State have certified that the transferee owns, in the light of the proposed assignment, the eligible funds necessary to cover the solvency capital required under the legislation under which the transferee is a member;
2° where the authorization is requested by an insurance company, as a transferring company, the assignment of all or part of a portfolio of insurance contracts subscribed by way of a branch located in another Member State or the free service plan, also requires the prior agreement of the control authorities of the host Member States concerned. To this end, the Bank shall forthwith communicate the draft assignment to the supervisory authorities of the Member States concerned. In the absence of a response from these authorities within three months of their consultation, the agreement of these authorities is presumed.
§ 2. When the Bank is consulted by the supervisory authorities of a Member State regarding an operation referred to in Article 102, paragraph 1^er, 3° to which an insurance or reinsurance company in Belgian law intervenes as an assignee, the Bank shall issue, within three months of receipt of the application, a certificate indicating whether the transferee enterprise has, in the light of the proposed assignment, the eligible equity necessary to cover the solvency capital required under section 151.
Art. 105. The Bank shall inform FSMA of requests for authorization to transfer insurance contracts to which it is seized pursuant to section 102, paragraph 1^er, 3°, as well as decisions it makes concerning them.
Art. 106. The Bank shall publish to the Belgian Monitor an excerpt from any authorization decision pursuant to Article 102, paragraph 1^er, 2° and 3°, a merger or transfer of rights and obligations arising from insurance or reinsurance contracts. Without prejudice to sections 17 and 18 of the Insurance Act, any total or partial assignment of the rights and obligations resulting from these transactions is subject to third parties, including insurance licensees, insured persons and beneficiaries, upon publication to the Belgian Monitor of the Bank's authorization.
Extracts referred to in paragraph 1^er are also advertised as information on the Bank's website.
Transfers authorized by the Bank under section 102, paragraph 1^er, 2° and 3°, may not be null or void under section 1167 of the Civil Code or articles 17, 18 or 20 of the Bankruptcy Act of 8 August 1997.
CHAPTER V. - Insurance activity exercise
or reinsurance abroad
Section I^re. - Constitution
or acquisition of foreign affiliates
Art. 107. The insurance or reinsurance company that plans to acquire or establish, directly or indirectly, a foreign affiliate engaged in insurance or reinsurance activity shall notify the Bank of its intention.
The insurance or reinsurance undertaking attached to the notification referred to in paragraph 1^er information on the activities, organization, executives and structure of the ownership of the company concerned.
Section II. - Opening foreign branches
Sub-section I^re. - Opening branches
abroad by an insurance company
Art. 108. § 1^er. The insurance company that plans to establish a branch in the territory of another Member State to carry out an insurance activity for which it is registered in Belgium shall notify the Bank of its intention.
This notification is accompanied by a file with the following information:
1st the Member State in whose territory the insurance company envisages establishing the branch;
2° the activity program, in which at least the type of operations envisaged and the structure of the branch organization are described;
3° the name, address and authority of the general representative of the branch referred to in paragraph 2 and, where applicable, other persons responsible for the effective management of the branch and for the independent supervisory functions of the branch;
4° the address to which documents may be claimed and delivered to the insurance company in the host Member State, including communications to the agent general;
5° in the event that the insurance company intends to cover by its branch the risks of branch 10 referred to in Appendix I, excluding the liability of the carrier, a declaration that it has become a member of the national office and of the national guarantee fund of the host Member State;
6° in the event that the insurance company intends to cover by its branch the risks of industrial accidents, the proof, if required by the host Member State, of the respect of the specific provisions provided for by the national law of that Member State with regard to the coverage of this type of risk.
§ 2. The insurance business referred to in subsection 1^er means a branch agent. In the event of a renunciation of the mandate or revocation of the agent general or in the event of his death, the insurance company shall take the necessary measures to fill his replacement in the month.
The general representative and, where applicable, other persons in charge of the effective management of the branch and those in charge of the independent oversight functions of the branch have the necessary professional honourability and expertise at all times to perform their duties. Articles 41, 81 and 82 apply to them by analogy.
§ 3. The Bank may object to the completion of the project by decision based on non-compliance with the requirements set out in subsection 2 or the adverse impact on the governance system, the financial situation, particularly in view of the risks inherent in the planned activity, or the control of the insurance company.
The Bank's decision is notified to the insurance company by registered letter to the position or with acknowledgement of receipt no later than three months after the receipt of the complete file including the information provided in paragraph 1^erParagraph 2. If the Bank has not notified a decision within this period, it is deemed not to oppose the company's project.
§ 4. The Bank shall communicate to the European Commission and IAPO the number and nature of cases in which a final opposition decision has been made pursuant to paragraph 3.
§ 5. This section, with the exception of paragraph 4, applies mutatis mutandis to the opening of branches in a third country, on the understanding that the Bank may also object to the realization of the project of the insurance company if it has reasons to doubt the compliance with the rules of access to the activity prescribed under the law of the third country or, in the light of the activity envisaged and the plan of cooperation with the third country authorities
Art. 109. When the establishment State of the branch is a Member State, the Bank, if it has not opposed the realization of the project in accordance with Article 108, § 3, shall communicate to the competent authority of the host Member State concerned within three months of their receipt, all information required by Article 108, § 1^er, paragraph 2 and a certificate indicating that the insurance company has the required solvency capital and the minimum required capital calculated in accordance with sections 100 and 129 of Directive 2009/138/EC.
The Bank shall notify the insurance company concerned in writing of the communication of the record referred to in paragraph 1^er and the date on which the competent authorities of the host Member State have acknowledged their receipt.
When the supervisory authorities of the Member State have transmitted the conditions under which, for reasons of general interest, the activities of the branch may be carried out in that Member State, the Bank shall communicate this information to the insurance company concerned.
Art. 110. When the branch is a third country, the Bank may agree with the authority of the third country concerned, the terms and conditions for the opening and control of the branch and the exchange of information desirable in accordance with the provisions of Chapter IV/1, Section 4, of the Act of 22 February 1998.
Art. 111. When the establishment of the branch is a Member State, the activities of the branch may begin from the date on which the Bank received the communication referred to in Article 109, paragraph 3 and no later than the date of a two-month period beginning on the date of receipt by the inspection authorities of the host Member State of the information communicated pursuant to Article 109, paragraph 1^er.
Where the establishment of the branch is a third country, without prejudice to the respect of the legal provisions of that country with respect to access to insurance activity, the branch's activities may begin from the date on which the branch's opening project has not been objected to in accordance with Article 108, § 3.
Art. 112. The insurance company shall notify the Bank and, where appropriate, the authorities of control of the host Member States concerned of any changes it intends to make to the information provided under Article 108, § 1^er, paragraph 2, 2°, 3° and 4°, at least one month before they are made. Article 108, § 3, is applicable with respect to these amendments.
Sub-section II. - Opening of a branch
abroad by a reinsurance company
Art. 113. The reinsurance company that plans to establish a branch on the territory of another Member State or a third country to carry out a reinsurance activity for which it has an approval in Belgium, notifies its intention to the Bank.
Art. 114. Articles 108, § 1^er, paragraph 2, 1°, 4° and §§ 2, 3 and 5, 110, 111, paragraph 2 and 112 apply mutatis mutandis at the opening of branches abroad by a reinsurance company, provided that:
1° of the cooperation agreements referred to in Article 110 may also be concluded by the Bank with the supervisory authorities of the host Member States;
2° Article 111, paragraph 2, also applies when the State of establishment of the branch is a Member State.
Section III. - Provision of insurance services
or reinsurance abroad
Sub-section I^re. - Provision of services
abroad by an insurance company
Art. 115. § 1^er. The insurance company that plans to operate in the territory of another Member State, without establishing a branch, an insurance activity for which it is registered in Belgium, notifies its intention to the Bank.
This notification is accompanied by a file with the following information:
1° the Member State in the territory of which the insurance company envisages to exercise its activity;
2° the type of insurance transactions that it intends to carry out in the context of the free provision of services and the branches of which these transactions relate;
3° in the case where the insurance company intends to cover, within the framework of the free provision of services, the risks of branch 10 referred to in Appendix I, excluding the liability of the carrier, and if the host Member State requires the communication of this information, a statement that the insurance company has become a member of the national office and of the national guarantee fund of the host Member State.
§ 2. The Bank may object to the completion of the project by decision motivated by the adverse impact of the cross-border benefit of the insurance activity on the governance system, the financial situation, particularly given the risks inherent in the planned activity, or the control of the insurance company.
The Bank's decision is notified to the insurance company by registered letter to the position or with acknowledgement of receipt no later than one month after the receipt of the complete file including the information provided in paragraph 1^erParagraph 2. If the Bank has not notified a decision within this period, it is deemed not to oppose the insurance company's project.
§ 3, . The Bank shall communicate to the European Commission and IAPO the number and nature of the cases in which a final opposition decision has been made pursuant to paragraph 2.
§ 4. This section, with the exception of paragraph 3, applies mutatis mutandis to the exercise of the insurance activity in the territory of a third country, without establishing a branch thereof, provided that
1° the Bank may also object to the realization of the project of the insurance company if it has reasons to doubt the respect of the rules of access to the activity prescribed under the legislation of the third country or, given the envisaged activity and the regime of cooperation with the supervisory authorities of the third country, the possibility of exercising effective control with respect to the cross-border activity carried out in the territory of that third country;
2° the period referred to in paragraph 2, paragraph 2, shall be extended to three months.
Art. 116. When the State in whose territory the cross-border insurance activity is carried out is a Member State, the Bank, if it has not objected to the realization of the project in accordance with Article 115 § 2, shall communicate to the inspection authority of the host State concerned in the month of their receipt, all the information required by Article 115 § 1^er, paragraph 2 and a certificate indicating that the insurance company has the required solvency capital and the minimum required capital calculated in accordance with sections 100 and 129 of Directive 2009/138/EC. It also communicates the insurance branches for which the insurance company was approved by the Bank.
The Bank shall notify the relevant insurance company in writing of the communication referred to in paragraph 1^er.
When the supervisory authorities of the host Member State transmitted the conditions under which, for reasons of general interest, cross-border activities may be carried out in that Member State, the Bank shall communicate this information to the insurance company concerned.
Art. 117. Where the State in whose territory cross-border insurance activity is a third country, the Bank may agree with the authority of the third country concerned, the terms and conditions of control of that activity and the exchange of information desirable in accordance with the provisions of Chapter IV/1, Section 4, of the Act of 22 February 1998.
Art. 118. Where the State in whose territory cross-border insurance activity is a Member State, cross-border activities may begin from the date on which the undertaking was notified by the Communication Bank provided for in Article 116, paragraph 1^er.
Where the State in the territory of which the cross-border insurance activity is a third country, without prejudice to the respect of the legal provisions of that country regarding access to insurance activity, cross-border activities may begin from the date on which the draft cross-border activities have not been objected to in accordance with Article 115, § 2.
Art. 119. The insurance company that operates in the territory of another Member State or a third country, without establishing a branch, an insurance activity, shall notify the Bank of any changes it intends to make to the information provided under Article 115, § 1^erParagraph 2. Article 115, § 2, is applicable with respect to these amendments.
Sub-section II. - Provision of services
abroad by a reinsurance company
Art. 120. The reinsurance company that plans to operate in the territory of another Member State or a third country, without establishing a branch, a reinsurance activity for which it has an approval in Belgium, notifies its intention to the Bank.
Art. 121. Articles 115, § 1^er, paragraph 2, and §§ 2, and 4, 117, 118, paragraph 2 and 119 apply mutatis mutandis to the exercise of a cross-border reinsurance activity abroad, without establishing a branch, provided that:
1° of the cooperation agreements referred to in Article 117 may also be concluded by the Bank with the supervisory authorities of the host Member States in which the cross-border reinsurance activity is carried out;
2° the period referred to in Article 115, § 2, paragraph 2, shall be extended to three months;
3° Article 118, paragraph 2, also applies where the State in which cross-border reinsurance activity is exercised is a Member State.
Section IV. - Common provisions
the exercise of the activity in another Member State
Art. 122. Each insurance or reinsurance company shall communicate to the Bank, in a separate manner, for the transactions carried out in the opening of a branch and for those carried out in the context of the free provision of services, the amount of premiums, claims and commissions, without deduction of reinsurance, by Member State of establishment of a branch and by Member State in the territory of which a cross-border insurance or reinsurance activity is carried out. This communication is as follows:
1° for non-life insurance, by business lines, in accordance with the enforcement measures of Directive 2009/138/EC;
2° for life insurance, by activity lines, in accordance with the enforcement measures of Directive 2009/138/EC;
3° for non-life reinsurance;
4° for life insurance.
With respect to branch 10 referred to in Appendix I, excluding carrier liability, the insurance company concerned also informs the Bank of the frequency and average cost of claims.
The Bank shall communicate the information referred to in paragraph 1^er and 2 within a reasonable period of time and in an aggregate form to the supervisory authorities of each of the Member States concerned, upon request.
CHAPTER VI. - Standards and regulatory obligations
Section I^re. - Valuation rules
Sub-section I^re. - General rules
Art. 123. For the purpose of meeting the requirements set out in or under this Chapter, insurance or reinsurance companies value their assets and liabilities as follows:
1° the assets are valued to the amount for which they may be exchanged as part of a transaction concluded, under normal competition conditions, between informed and consenting parties;
2° Liabilities are valued to the amount for which they may be transferred or paid in the course of a transaction entered into, under normal competition conditions, between informed and consenting parties.
During the valuation of liabilities under 2°, no adjustments are made to reflect the credit quality of the insurance or reinsurance company.
Sub-section II. - Rules relating to technical provisions
§ 1^er. General provisions
Art. 124. Insurance or reinsurance companies calculate and account, under the name of technical provisions, all their insurance or reinsurance commitments to insurance licensees, insurers and beneficiaries of insurance contracts or beneficiaries of reinsurance contracts.
The technical provisions relate to both existing and unliquidated contracts.
Art. 125. Technical provisions are calculated in a prudent, reliable and objective manner.
The value of the technical provisions corresponds to the current amount that insurance or reinsurance companies should pay if they immediately transfer their insurance or reinsurance commitments to another insurance or reinsurance company.
Computing technical provisions uses, consistent with them, information provided by financial markets and data generally available on subscription risks (market coherence).
In accordance with the principles set out in this section and taking into account those set out in Article 123, the calculation of the technical provisions shall be carried out in accordance with sections 126 to 137, the rules taken for their execution and the Implementing Regulations of Directive 2009/138/EC.
Art. 126. § 1^er. The value of technical provisions is equal to the sum of the best estimate (best estimate) and the margin of risk (risk margin) as described in paragraphs 2 and 3.
§ 2. The best estimate is the average weighted by their probability of future cash flow, taking into account the temporal value of the money (current expected value of future cash flow), estimated on the basis of the relevant curve of risk-free interest rates.
The calculation of the best estimate is based on up-to-date and credible information and realistic assumptions and uses adequate, applicable and relevant actuarial and statistical methods.
The cash flow projection used in the calculation of the best estimate takes into account all cash inflows and outflows required to meet insurance or reinsurance commitments throughout the period of these.
The best estimate is calculated gross, without deduction of claims arising from reinsurance contracts and securitization vehicles. These amounts are calculated separately in accordance with section 136.
§ 3. The margin of risk is calculated to ensure that the value of technical provisions is equivalent to the amount that insurance or reinsurance companies would request to resume and honour insurance or reinsurance commitments.
Art. 127. § 1^er. Insurance or reinsurance companies conduct a separate assessment of the best estimate and the margin of risk.
However, where future cash flows related to insurance or reinsurance commitments can be reliably replicated using financial instruments for which there is an observable market value, the value of the technical provisions related to these future cash flows is determined using the market value of these financial instruments. In this case, a separate calculation of the best estimate and the margin of risk is not required.
§ 2. When conducting a separate assessment of the best estimate and the margin of risk, insurance or reinsurance companies calculate the margin of risk by determining the cost of the mobilization of an eligible amount of equity equal to the solvency capital required to meet insurance or reinsurance commitments throughout the duration of these.
The rate used to determine the cost of mobilizing this amount of eligible equity (capital cost) is the same for all insurance or reinsurance companies. A Regulation of Enforcement of Directive 2009/138/EC shall establish and periodically revise this rate.
The rate of the cost of the capital used is equal to the additional rate, in addition to the relevant risk-free interest rate, that would be borne by an insurance or reinsurance company holding an eligible equity amount, in accordance with subsection III of this Chapter equal to the required credit capital that is required to meet the insurance or reinsurance commitments for the duration of the capital.
§ 2. Extrapolation of the relevant curve of risk-free interest rates (risk-free interest rate term structure)
Art. 128. The determination of the relevant curve of the risk-free interest rates referred to in section 126, § 2, makes use of the relevant financial instruments and remains consistent with them. This determination takes into account the relevant financial instruments for the maturity periods to which the markets of these financial instruments, including bond markets, are deep, liquid and transparent. For maturity periods to which the markets of the relevant financial instruments or bonds are no longer deep, liquid and transparent, the relevant curve of risk-free interest rates is extrapolated.
The extrapolated portion of the relevant curve of risk-free interest rates is based on long-term rates that have been converging with no-coups from a rate, or a set of term rates, for the longest timeframes to which the relevant financial instrument can be observed and the obligations that have been labeled, in a deep, liquid and transparent market, up to the final rate (ultimate forward rate).
§ 3. Equalizer adjustment (Matching adjustment) of the relevant risk-free interest rate curve
Art. 129. § 1^er. Insurance or reinsurance companies may apply an equalization of the relevant curve of the risk-free interest rates to calculate the best estimate of an insurance or life insurance portfolio, including annuities arising from non-life insurance or reinsurance contracts, subject to the Bank's prior agreement, where the following conditions are met:
1° insurance or reinsurance companies have assigned a portfolio of assets, consisting of bonds or other securities that have similar characteristics in cash flow, covering the best estimate of the portfolio of insurance or reinsurance commitments, and retain this assignment until the maturity of the said commitments, unless they wish to maintain the equivalence of expected cash flows between assets and liabilities if these flows have significantly changed
2° the portfolio of insurance or reinsurance commitments to which the equalizer adjustment is applied and the asset portfolio is identified, managed and organized separately from other business activities, and the asset portfolio cannot be used to cover losses resulting from other business activities;
3° the expected cash flow of the affected asset portfolio responds in the same currency, point-by-point, to the expected cash flow of the insurance or reinsurance portfolio and no equivalence breaks result in risks that are real in relation to the risks inherent in the insurance or reinsurance activity to which the equalizer adjustment applies;
4° the underlying contracts of the insurance or reinsurance portfolio do not qualify for future premiums;
5° the only risk of subscription related to the portfolio of insurance or reinsurance commitments is the risk of longevity, the risk of expenditure, the risk of revision and the risk of mortality;
6° where the risk of subscription to the insurance or reinsurance portfolio includes the risk of mortality, the best estimate of the portfolio of insurance or reinsurance commitments shall not increase by more than 5% in the context of a mortality risk shock calibrated in accordance with section 151, §§ 2, to 5;
7° the underlying contracts of insurance or reinsurance portfolios only include a redemption option provided that the redemption value does not exceed the value of the assets, valued in accordance with section 123, covering insurance or reinsurance commitments on the date the redemption option is exercised;
8° the cash flow of the assets constituting the affected portfolio of assets is fixed and cannot be modified by the securities issuers or by third parties;
9° the insurance or reinsurance obligations of an insurance or reinsurance contract are not divided into different parts in the composition of the insurance or reinsurance portfolio for the purposes of this paragraph.
Notwithstanding paragraph 1^er, 8°, the insurance or reinsurance company may use assets whose cash flows are fixed, apart from an inflation index, provided that these assets correspond to the cash flow of the insurance or reinsurance portfolio, which is inflation-dependent.
In the event that the issuers or third parties have the right to modify the flow of an asset in such a way that the investor receives sufficient compensation to obtain the same cash flow by reinvesting in assets of an equivalent or better credit quality, the right to change the cash flow does not exclude that the asset is eligible for the portfolio assigned in accordance with paragraph 1^er8°.
§ 2. Insurance or reinsurance companies that apply the equalizer adjustment to an insurance or reinsurance portfolio may not return to a method that ignores the equalizer adjustment. If an insurance or reinsurance company that applies the equalizer adjustment is no longer able to meet the conditions set out in paragraph 1^erimmediately informs the Bank and takes the necessary steps to return to compliance with these conditions. If it is unable to return to compliance within two months of the date of non-compliance, the company ceases to apply the equalizer adjustment to its insurance or reinsurance commitments and may only apply such an adjustment after an additional 24 months.
§ 3. The equalizer adjustment is not applied to insurance or reinsurance commitments where the relevant curve of risk-free interest rates used to calculate the best estimate of the said commitments involves a volatility correction under section 131 or a transitional measure on risk-free interest rates under section 668.
Art. 130. § 1^er. In each currency, the equalizer adjustment referred to in section 129 is calculated in accordance with the following principles:
1° the equalizer is equal to the difference between the following amounts:
(a) the effective annual rate, calculated as the single discount rate that, if applied to the cash flow of the insurance or reinsurance portfolio, would give a value equal to the value calculated in accordance with section 123 of the assigned asset portfolio;
(b) the effective annual rate, calculated as the single discount rate that, if applied to the cash flow of the insurance or reinsurance portfolio, would give a value equal to the value of the best estimate of the insurance or reinsurance portfolio for which the time value of the money is taken into account in accordance with the relevant curve of interest rates without risk;
2° the equalizer adjustment cannot include the fundamental margin (fundamental spread) reflecting the risks assumed by the insurance or reinsurance company;
3° notwithstanding the 1°, the fundamental margin (fundamental spread) is increased, if any, so that the equalizer adjustment for the assets whose quality is less than that of the good quality assets does not exceed the equalizer adjustment for the good quality and the same duration and the same category;
4° the use of external credit evaluations in the calculation of the equalizer adjustment complies with the specifications defined in accordance with Article 111, paragraph 1^er(n) of Directive 2009/138/EC.
§ 2. For the purposes of paragraph 1^er, 2°, the fundamental margin (fundamental spread) is:
1° equal to the sum of the following:
(a) the credit margin corresponding to the probability of default of assets;
(b) the margin of credit for the expected loss of an asset degradation;
2° for exhibitions on the central administrations and central banks of the Member States, greater than or equal to 30% of the long-term average of the margin compared to the risk-free interest rate of assets of the same duration, of the same credit and of the same category, as observed in the financial markets;
3° for assets other than exposures on the central administrations and central banks of the Member States, greater than or equal to 35% of the long-term average of the margin compared to the risk-free interest rate of assets of the same duration, of the same credit and of the same category, as observed in the financial markets.
The probability of default referred to in paragraph 1^er, 1°, a), is based on long-term default statistics that are relevant to the asset in question, depending on its duration, credit quality and class.
When no reliable credit margin can be drawn from the default statistics referred to in the second paragraph, the basic margin is equal to the long-term margin share of the margin relative to the risk-free interest rate set by 2° and 3°.
§ 4. Correction for volatility (Volatility adjustment) of the relevant curve of riskless interest rates.
Art. 131. § 1^er. An insurance or reinsurance company that intends to use the correction for volatility of the relevant curve of riskless interest rates to calculate the best estimate referred to in section 126, § 2, informs the Bank beforehand.
The Bank may, at any time, prohibit, restrict or condition the use of the volatility correction referred to in paragraph 1^er if it finds that the insurance or reinsurance company does not comply with the conditions provided for in this section or by the European regulations made under section 86, paragraph 1^er, i), Directive 2009/138/EC or that its risk profile substantially differs from the conditions of application of the volatility correction as provided by the provisions of these Regulations.
§ 2. For each currency concerned, the correction for volatility of the relevant curve of risk-free interest rates is based on the difference between the interest rate that it would be possible to draw assets included in a reference portfolio in this currency and the relevant curve of the corresponding non-risk interest rates in this currency.
The reference portfolio in a currency is representative of the assets that are denominated in that currency and in which insurance or reinsurance companies have invested to cover the best estimate of the insurance or reinsurance commitments in that currency.
§ 3. The amount of the correction for volatility of the relevant curve of risk-free interest rates corresponds to 65% of the "debtedness" deviation at risk correction.
The "debtedness" deviation for risk correction is calculated on the basis of the difference between the variance referred to in paragraph 2 and the portion of that deviation due to a realistic assessment of expected losses, the risk of unanticipated credit or any other asset-related risk.
Volatility correction is applicable only at the rates of the relevant curve of risk-free interest rates that are not calculated by extrapolation in accordance with section 128. Extrapolation of the relevant curve of risk-free interest rates is based on adjusted risk-free interest rates.
§ 4. For each country concerned, the correction for the volatility of the risk-free interest rates referred to in paragraph 3 in the currency of that country is, before applying the factor of 65%, increased by the difference between the "pays" gap at risk correction and the double of the "devises" gap at risk correction, when this difference is positive and the "pays" gap at risk correction is greater than 100 basis points.
The increase in the volatility correction applies to the calculation of the best estimate of the insurance or reinsurance commitments sold on the insurance or reinsurance market in that country. The "pays" deviation for risk correction is calculated in the same way as the "devises" deviation for the purpose of correcting the risk of this country but on the basis of a reference portfolio that is representative of the asset portfolio in which insurance or reinsurance companies have invested to cover the best estimate of the insurance or reinsurance commitments sold on the insurance or reinsurance market of that country and labeled.
§ 5. The volatility correction does not apply to insurance commitments if the relevant curve of riskless interest rates to be used to calculate the best estimate of these commitments involves the equalizer adjustment provided for in section 129.
§ 6. By derogation from section 151, the required solvency capital does not cover the risk of loss of base equity resulting from a change in volatility correction.
§ 5. Other provisions relating to technical provisions
Art. 132. When the technical information referred to in Article 77Sexia, paragraph 1^er of Directive 2009/138/EC shall be adopted by the European Commission in accordance with paragraph 2, of the same article, insurance or reinsurance companies shall use this technical information to calculate the best estimate in accordance with Articles 126 and 127, the equalizer adjustment in accordance with Article 130, and the correction for volatility in accordance with Article 131.
With respect to currencies for which and national markets on which the adjustment referred to in section 77exies, paragraph 1^er, c) of Directive 2009/138/EC, is not provided for in the performance acts referred to in paragraph 2, of the same section, no correction for volatility is applied to the relevant curve of the riskless interest rates to be used to calculate the best estimate.
Art. 133. In addition to the provisions of sections 126 and 127, insurance or reinsurance companies shall take into account the following elements when calculating their technical provisions:
1° all expenses that will be incurred to meet insurance or reinsurance commitments;
2° inflation, including inflation in respect of expenses and claims;
3° all payments to insurance and recipient licensees, including discretionary participations that insurance or reinsurance companies plan to pay in the future, whether or not these payments are contractually guaranteed, unless they fall under section 145, paragraph 2.
Art. 134. When calculating their technical provisions, insurance or reinsurance companies take into account the value of financial guarantees and any contractual option included in insurance or reinsurance contracts.
Any assumptions made by insurance or reinsurance companies regarding the likelihood that insurance licensees will exercise the contractual options available to them, including the right to benefit reduction and the right to redemption, are realistic and based on current and credible information. It takes into account, explicitly or implicitly, the impact of possible changes in the financial and non-financial conditions on the exercise of these options.
Art. 135. When calculating their technical provisions, insurance or reinsurance companies segment their insurance or reinsurance commitments into homogeneous risk groups and, at a minimum, by business line.
Art. 136. When calculating claims arising from reinsurance contracts and securitization vehicles, insurance or reinsurance companies comply with sections 125 to 135.
When calculating claims arising from reinsurance contracts and securitization vehicles, insurance or reinsurance companies take into account the temporal difference between recovery and direct payments.
The result of this calculation is adjusted to take into account the probable losses for default of the counterparty. This adjustment is based on an assessment of the probability of default of counterparty and the resulting average loss (loss in case of default).
Art. 137. Insurance or reinsurance companies establish internal processes and procedures to ensure the appropriateness, completeness and accuracy of the data used in calculating their technical provisions.
Where, in particular circumstances, insurance or reinsurance companies do not have sufficient data of appropriate quality to apply a reliable actuarial method to a set or subset of their insurance or reinsurance commitments, or claims arising from reinsurance contracts and securitization vehicles, adequate approximations, including on a case-by-case basis, may be used to calculate the best estimate.
Art. 138. Insurance or reinsurance companies set up processes and procedures to ensure a regular comparison of their best estimates and assumptions underpinning their calculation with the data from the experience.
When this comparison shows a systematic discrepancy between the data from the experience and the calculations of the best estimates of the insurance or reinsurance company, the company concerned provides the appropriate adjustments to the actuarial methods used and/or the assumptions used.
Art. 139. At the Bank's request, insurance or reinsurance companies demonstrate the appropriateness of their technical provisions, as well as the applicability and relevance of the methods they apply and the adequacy of the underlying statistical data.
Sub-section III. - Clean funds
Art. 140. The equity is the sum of the core funds referred to in section 141 and of the auxiliary funds referred to in section 142.
Art. 141. The core funds consist of:
1° the surplus of assets in relation to liabilities payable (liabilities), assessed in accordance with section 123 and subsection II of this Section;
2° subordinate liabilities.
The surplus referred to in 1° is reduced by the amount of its own shares that the insurance or reinsurance company holds.
Art. 142. § 1^er. Auxiliary own funds consist of elements, other than base funds, which can be called to absorb losses.
Auxiliary equity funds may include the following elements, to the extent that these are not core equity elements:
1 the unpaid portion of the social capital or the initial fund that has not been called;
2° letters of credit and guarantees;
3° any other legally binding undertaking received by insurance or reinsurance companies.
In the case of a Mutual Insurance Association with Variable Contributions, the auxiliary funds may also include any future debt that this Mutual Insurance Association may hold on its members by recalling contributions for the next twelve months.
§ 2. When an element of the auxiliary funds has been paid or called, it is assimilated to an asset and ceases to be part of the auxiliary funds.
Art. 143. § 1^er. The amount of the elements of the auxiliary funds to be considered in determining the equity is subject to the Bank's prior approval.
§ 2. The amount allocated to each element of auxiliary equity reflects the absorption capacity of the loss of the element concerned and is based on conservative and realistic assumptions. When a fixed nominal value is attached to an auxiliary equity element, the amount of that element is equal to its nominal value, provided that it adequately reflects its loss absorption capacity.
§ 3. The Bank approves either of the following:
1° a monetary amount for each element of auxiliary equity;
2° a method for calculating the amount of each auxiliary equity element, in which case approval by the Bank of the amount so calculated is given for a specified period.
§ 4. For each auxiliary equity element, the Bank bases its approval on the evaluation of the following:
1° the status of the relevant counterparties, taking into account their capacity and willingness to pay;
2° the possibility of retrieval of the equity element, taking into account the legal form of the item, as well as any circumstance that could prevent it from being paid or successfully called;
3° any information on the outcome of calls issued in the past by insurance or reinsurance companies for similar auxiliary funds, to the extent that this information may reasonably be used to estimate the expected outcome of future calls.
Art. 144. In addition to the requirements set out in section 68 of Regulation 2015/35, direct, indirect and synthetic detentions held by an insurance or reinsurance company in instruments of equity of financial sector entities are deducted from its equity elements when there is a cross-retention between these entities and the insurance or reinsurance company and the Bank considers that this interest is intended to artificially increase the insurance or reinsurance funds.
For the purposes of this article:
1° "financial sector" in the sense defined by Article 338, 9°;
2° by "synthetic detention", an investment made in a financial instrument whose value is directly related to the value of capital instruments issued by an entity in the financial sector.
Art. 145. The surplus funds consist of accumulated profits that have not yet been made available for distribution to insurance licensees and beneficiaries.
Surplus funds are not considered to be insurance or reinsurance commitments as they meet the criteria set out in section 147, § 1^er.
Art. 146. § 1^er. The equity elements are classified into three levels. The classification of these elements is based on their own core or auxiliary funds and the extent to which they have the following characteristics:
1° the item is available, or may be called upon upon request to fully absorb losses, whether in the context of a continuous operation or in case of liquidation (permanent availability);
2° in the event of liquidation, the total amount of the item is available for the absorption of the losses and the reimbursement of the item is denied to its holder until all other commitments, including insurance or reinsurance commitments to insurance licensees and beneficiaries of insurance or reinsurance contracts, have been honoured (subordination).
§ 2. To assess the extent to which equity elements have the characteristics defined in paragraph 1^er, 1°, and 2°, at the time and in the future, it is important to give due consideration to the duration of the element, especially if it has a fixed duration or not. When the equity element has a specified duration, its relative duration, in comparison with the duration of the insurance or reinsurance obligations of the company, is considered (sufficient duration).
In addition, the following factors are taken into consideration: if the element is free:
1° of any obligation to repay or incite to repay its nominal amount (no incentive to repay);
2° mandatory fixed charges (no inherent mandatory financial charges);
3° constraints (no constraints).
Art. 147. § 1^er. Elements of the base funds are classified at level 1 when they present, in substance, the characteristics described in section 146, § 1^er, 1°, and 2°, taking into account the factors referred to in Article 146, § 2.
§ 2. Elements of the core funds are classified at level 2 when they present, in substance, the characteristic described in section 146, § 1^er2°, taking into account the factors referred to in Article 146, § 2.
Elements of the own auxiliary funds are classified at level 2 when they present, in substance, the characteristics described in section 146, § 1^er, 1°, and 2°, taking into account the factors referred to in Article 146, § 2.
§ 3. Any element of the base or auxiliary funds that do not fall within paragraphs 1^er and 2 is classified at level 3.
Art. 148. Insurance or reinsurance companies classify their own funds based on the criteria set out in section 147.
To this end, insurance or reinsurance companies refer, if any, to the list of the specific funds provided for in sections 69, 72, 74, 76 and 78 of Regulation 2015/35.
Where an element of equity does not fall under this list, it is assessed and classified by insurance or reinsurance companies in accordance with paragraph 1^er. This ranking is subject to Bank approval.
Art. 149. Without prejudice to section 148 and the list of equity elements set out in sections 69, 72, 74, 76 and 78 of Regulation 2015/35, the following classifications are applied with respect to insurance-specific funds:
1° the surplus funds under section 145, paragraph 2, are classified at level 1;
2° letters of credit and guarantees held in trust by an independent trustee for the benefit of insurance creditors and provided by credit institutions approved in accordance with Directive 2013/36/EU are classified at level 2;
3° any future debts that mutual insurance associations with variable contributions from ship owners, which only provide the risks classified under 6, 12 and 17 listed in Appendix I, may hold on their members by recalling contributions for the next 12 months, is classified at level 2.
Pursuant to Article 147, § 2, paragraph 2, any future receivable that the mutual insurance associations with variable contributions may hold on their members by means of a reminder of contributions for the next twelve months and which is not covered by paragraph 1^er, 3°, is classified at level 2 when it presents, in substance, the characteristics described in article 146, § 1^er, 1°, and 2°, taking into account the factors referred to in Article 146, § 2.
Art. 150. § 1^er. For compliance with the required solvency capital, eligible amounts of Level 2 and Level 3 elements are subject to quantitative limits. These limits are such that they guarantee, at least, that the following conditions are met:
1° the share of level 1 elements included in eligible equity amounts to more than one third of the total eligible equity;
2° the eligible amount of level 3 elements is less than one third of the total amount of eligible equity.
§ 2. With respect to the minimum level of capital required, the amount of eligible core funds to cover the minimum required capital that is classified at level 2 is subject to quantitative limits. These limits are such that they guarantee, at least, that the share of level 1 elements included in eligible base funds represents more than half of the total eligible base funds.
§ 3. The amount of eligible equity to cover the solvency capital required under section 151 is equal to the sum of the level 1 elements, the eligible level 2 elements and the eligible level 3 elements.
§ 4. The amount of the eligible base funds to cover the minimum capital required under section 189 is equal to the sum of the amount of the level 1 elements and the eligible amount of the basic equity elements classified at level 2.
Section II. - Capital requirements
Sub-Section I^re. - General provisions
of solvency capital required
Art. 151. § 1^er. The solvency capital required for insurance or reinsurance companies to hold is calculated in accordance with paragraphs 2 to 5.
§ 2. The calculation of the required solvency capital is based on the assumption of continuity in the operation of the company concerned.
The required solvency capital may be calculated using the standard method or using internal models as specified in subsections II and III, respectively.
§ 3. The required solvency capital is calibrated to ensure that all quantifiable risks to which the insurance or reinsurance company is exposed are considered.
It covers the current portfolio, as well as the new portfolio whose subscription is expected in the next 12 months. For the current portfolio, it covers only unanticipated losses.
The required solvency capital corresponds to the risk value (Value-at-Risk) of the basic funds of the insurance or reinsurance company, with a confidence level of 99.5% over a year.
§ 4. The required solvency capital covers at least the following risks:
1° the risk of subscription in non-life;
2° the risk of life subscription;
3° the risk of health subscription;
4° market risk;
5° the risk of credit;
6° operational risk.
The operational risk referred to in paragraph 1^er, 6°, includes legal risks, but does not include risks arising from strategic decisions or reputational risks.
The King, by royal decree deliberated in the Council of Ministers, may impose that the solvency capital required covers other risks than those referred to in paragraph 1^er.
§ 5. When calculating their solvency capital, insurance or reinsurance companies take into account the impact of risk mitigation techniques, provided that the credit risk and other risks associated with the use of these techniques are adequately considered in the required credit capital.
Art. 152. § 1^er. Insurance or reinsurance companies calculate their solvency capital required at least once a year and notify the Bank of the result of this calculation.
For the purpose of complying with sections 74 and 151, insurance or reinsurance companies are continuously monitoring the amount of their eligible equity and credit capital.
If the risk profile of an insurance or reinsurance company significantly deviates from the assumptions that underlie the creditor capital required to be notified, the company shall promptly recalculate its solvency capital required and notify the Bank.
§ 2. When elements appear to indicate that the risk profile of an insurance or reinsurance company has changed significantly since the date of the last notification of the required solvency capital, the Bank may require that the company recalculate the required solvency capital.
Sub-section II. - Capital of solvency
required according to standard formula
Art. 153. The solvency capital required according to the standard formula is the sum of the following:
1° the basic solvency capital required (Basic solvency capital requirement), provided for in Article 154;
2° the requirement of capital for operational risk (Capital requirement for operational risk), provided for in Article 163;
3° the adjustment to take into account the absorption capacity (Adjustment for the loss-absorbing capacity) of losses of technical provisions and delayed taxes (Deferred taxes), provided for in section 164.
Art. 154. § 1^er. The basic solvency capital is composed of individual risk modules that are aggregated in accordance with Appendix III, item 1.
It includes at least the following risk modules:
1° the risk of subscription in non-life;
2° the risk of life subscription;
3° the risk of health subscription;
4° market risk;
5° the risk of counterparty.
The King, by royal decree deliberated in the Council of Ministers, may impose the use of other modules as referred to in paragraph 1^er.
§ 2. For the purposes of paragraph 1^er, 1°, 2° and 3°, insurance or reinsurance transactions are assigned to the subscription risk module that best reflects the technical nature of the underlying risks.
§ 3. The correlation coefficients applied for aggregation of the risk modules referred to in paragraph 1^er, as well as sizing capital requirements for each risk module, result in a global solvency capital that meets the principles set out in section 151.
§ 4. Each of the risk modules referred to in paragraph 1^er is calibrated on the basis of a risk value measurement (Value-at-Risk), with a confidence level of 99.5% on the horizon of a year.
Where applicable, the effects of diversification are taken into account in the design of each risk module.
§ 5. For all insurance or reinsurance companies, the same design and specifications are used for risk modules, both for the basic solvency capital and for any simplified calculation referred to in section 165.
§ 6. With respect to the hazards resulting from disasters, geographical specifications may, if applicable, be used for the purposes of calculating the "risk of life subscription", "risk of non-life subscription" and "risk of health subscription".
§ 7. Subject to the Bank's agreement, insurance or reinsurance companies may, when calculating the "life subscription risk" modules, "non-life subscription risk" and "health subscription risk", replace, in the design of the standard formula, a subset of the parameters of the standard formula with specific parameters of the company concerned.
These parameters are calibrated on the basis of the internal data of the company concerned or data directly relevant to the operations of this company, based on standardized methods.
Before agreeing, the Bank checks the completeness, accuracy and appropriateness of the data used.
Art. 155. The basic solvency capital is calculated in accordance with sections 156 to 160.
Art. 156. § 1^er. The "non-life subscription risk" module (Non-life underwriting risk) reflects the risk of non-life insurance commitments, taking into account the covered risks and processes applied in the exercise of this activity.
It takes into account the uncertainty over the results of insurance or reinsurance companies as part of their existing insurance or reinsurance commitments, as well as the new portfolio whose subscription is expected in the next 12 months.
§ 2. The module is calculated in accordance with Annex III, item 2 in the form of a combination of capital requirements applicable to the following submodules at least:
1° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the date of occurrence, frequency and severity of insured events, as well as the date and amount of claims regulations (risk of premiums and non-life reserve);
2° the risk of loss (risk of loss), or unfavourable change (adverse change) of the value of insurance commitments, resulting from the significant uncertainty, related to extreme or exceptional events, which weighs on the assumptions used in terms of price and provisioning (risk of disaster in non-life).
Art. 157. The Life Underwriting Risk (Life underwriting risk) module reflects the risk of life insurance commitments, taking into account the risks and processes applied in the exercise of this activity.
It is calculated, in accordance with Annex III, item 3, as a result of the combination of capital requirements applicable to at least the following submodules:
1° the risk of loss (risk of loss), or unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level, tendancial evolution or the volatility of mortality rates, when an increase in these rates leads to an increase in the value of insurance commitments (risk of mortality - mortality risk);
2° the risk of loss (risk of loss), or unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level, tendancial evolution or the volatility of mortality rates, when a decrease in these rates leads to an increase in the value of insurance commitments (risk of longevity);
3° the risk of loss (risk of loss), or unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level, tendancial evolution or the volatility of disability, disease and morbidity rates (risk of disability and morbidity - disability and morbidity risk);
4° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level, tendancial evolution or the volatility of the expenses incurred for the management of insurance or reinsurance contracts (risk of living expenses - life expense risk);
5° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level, tendential evolution or volatility of the revision rates applicable to annuities, as a result of a change in the legal environment or the health status of the insured person (revision risk - risk revision);
6° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level or volatility of the cessation, maturity, renewal and redemption rates of the policies (risk of cessation - lapse risk);
7° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from the significant uncertainty, related to extreme or irregular events, which weighs on the assumptions in terms of price and provisioning (risk of disaster in life - life catastrophe risk).
Art. 158. The "health underwriting risk" (health underwriting risk) module reflects the risk arising from the subscription of health insurance commitments, whether or not it is carried out on a technical basis similar to that of life insurance, given the risks covered and the processes applied in the exercise of this activity.
It covers at least the following risks:
1° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the level, tendancial evolution or the volatility of expenses incurred for the management of insurance or reinsurance contracts;
2° the risk of loss (risk of loss), or of unfavourable change (adverse change) of the value of insurance commitments, resulting from fluctuations affecting the date of occurrence, frequency and severity of insured events, as well as the date and amount of claims at the time of the provision;
3° the risk of loss (risk of loss), or unfavourable change (adverse change) of the value of insurance commitments, resulting from the significant uncertainty, related to major epidemics and the unusual accumulation of risks that occur in these extreme circumstances, which weighs on the assumptions used in terms of price and provisioning.
Art. 159. The "market risk" module (market risk) reflects the risk associated with the level or volatility of the market value of financial instruments having an impact on the value of the assets and liabilities of the company concerned. It correctly reflects any structural inadequacy between assets and liabilities, especially with regard to their duration.
It is calculated in accordance with Annex III, item 4, as a result of the combination of capital requirements applicable to at least the following submodules:
1° the sensitivity of the value of assets, liabilities and financial instruments to changes in the interest rate curve or interest rate volatility (risk of interest rate - interest rate risk);
2° the sensitivity of the value of assets, liabilities and financial instruments to changes in the level or volatility of the market value of equities (risk on shares - equity risk);
3° the sensitivity of the value of assets, liabilities and financial instruments to changes in the level or volatility of the market value of real estate assets (risk on real estate assets - property risk);
4° the sensitivity of the value of assets, liabilities and financial instruments to changes in the level or volatility of credit ("spreads") margins relative to the curve of risk-free interest rates (risk of margin - spread risk);
5° the sensitivity of the value of assets, liabilities and financial instruments to changes in the level or volatility of exchange rates (exchange risk - currency risk);
6° the additional risks incurred by the insurance or reinsurance company as a result of either a lack of diversification of its asset portfolio or a significant exposure to the risk of default of a single securities issuer or a group of related issuers (market risk concentration - market risk concentrations).
Art. 160. The "counterparty default risk" (counterparty default risk) module reflects the potential losses as a result of the unexpected default or deterioration of the credit quality of the counterparties and debtors of the insurance or reinsurance company over the next 12 months.
The " counterpart risk" module covers risk mitigation contracts, such as reinsurance agreements, securitizations and derivative instruments, and payments to be received from intermediaries as well as any other credit risk that does not fall under the "line risk" module. It takes into account, in an appropriate manner, the guarantees or other security rights held by the insurance or reinsurance company or on its behalf, and the risks associated with it.
For each counterparty, the "compartment risk" module takes into account the overall exposure to the counterparty risk incurred by the relevant insurance or reinsurance company in respect of that counterparty, regardless of the legal form of its contractual obligations to that undertaking.
Art. 161. The "risk to share" submodule (equity risk) calculated according to the standard formula includes a symmetrical adjustment mechanism of the capital requirement for shares that is used to cover the risk arising from changes in the share price.
The symmetrical adjustment of the standard capital requirement for shares, calibrated in accordance with Article 154, § 4, which covers the risk resulting from changes in the share price is based on the current level of an appropriate stock price index and the weighted average of that index. The weighted average is calculated over an appropriate period, which is the same for all insurance or reinsurance companies.
The symmetrical adjustment of the standard capital requirement for shares that covers the risk arising from changes in the course of the shares may not result in the application of a capital requirement for shares that is greater or less than ten percentage points than the standard capital requirement for shares.
Art. 162. § 1^er. Life insurance companies may apply to the calculation of the solvency capital required a sub-module "time-based equity risk" (duration-based equity risk), where:
1° either these undertakings provide pension benefits paid in reference to retirement, or the approach to retirement, if the premiums paid under these benefits benefit from a tax deduction granted to insurance holders by the national legislation of the Member State that has approved the insurance undertaking;
2° and when all the following conditions are met:
(a) all assets and commitments related to these activities are confined, managed and organized separately from other activities of insurance companies, without any possibility of transfer;
(b) the activities of the enterprise referred to in 1°, and 2°, to which the approach referred to in this article applies, shall be carried out only in the Member State that has approved the enterprise;
(c) the average duration of the company's commitments for these activities exceeds twelve years.
§ 2. The term-based risk sub-module (duration-based equity risk) referred to in this section is calibrated using a measure of the risk value, over a given period adapted to the typical retention period of equity investments by the enterprise concerned, with a level of confidence that insurance owners and beneficiaries have a level of protection equivalent to the level provided for in Article 151, subject to the requirement that the article^er, 2°, a). When calculating the solvency capital required, these assets and commitments are fully taken into account in the assessment of the effects of diversification, without prejudice to the need to preserve the interests of insurance owners and beneficiaries in other Member States.
Subject to the Bank's approval, the approach described in the first paragraph is used only when the credit and liquidity position, as well as the strategies, processes and reporting procedures of the company concerned in relation to its management of assets and commitments, are likely to ensure, on an ongoing basis, that the company is able to maintain equity investments during a period commensurate with the typical investment retention period. The company must be in a position to demonstrate to the Bank that this condition is verified with the level of confidence required to provide insurance and recipients with a level of protection equivalent to the level provided for in section 151.
Insurance or reinsurance companies that make use of the provisions of this section do not return to the approach set out in sections 155 to 160, except in duly justified circumstances and provided that the Bank authorizes it.
Art. 163. The operational risk capital requirement (operational risk) reflects operational risks, as these are not already considered in the risk modules referred to in section 154. This requirement is calibrated in accordance with Article 151, § 3.
In the case of life insurance contracts where the investment risk is borne by the insurance licensee, the calculation of the operational risk capital requirement takes into account the amount of annual expenditures incurred for the purposes of these insurance commitments.
In the case of insurance or reinsurance transactions other than those referred to in paragraph 2, the calculation of the operational risk capital requirement takes into account the volume of these transactions, in terms of the receipt of premiums and technical provisions held to meet the related insurance or reinsurance commitments. The operational risk capital requirement does not exceed 30% of the basic solvency capital required for the relevant insurance or reinsurance transactions.
Art. 164. Adjustment for the loss-absorbing capacity (Adjustment for the loss-absorbing capacity) of technical provisions and deferred taxes (deferred taxes), referred to in section 153, 3°, reflects the potential compensation for unanticipated losses by a simultaneous decrease in technical provisions or deferred taxes or a combination of both.
This adjustment takes into account the risk mitigation effect of future discretionary benefits of insurance contracts, to the extent that insurance or reinsurance companies can demonstrate that they have the opportunity to reduce these benefits to cover unanticipated losses at the time they occur. The risk mitigation effect of future discretionary benefits does not exceed the sum of the technical provisions and deferred taxes for future discretionary benefits.
For the purposes of paragraph 2, the value of future discretionary benefits in unfavourable circumstances is compared to the value of such benefits based on the assumptions underlying the calculation of the best estimate.
Art. 165. Insurance or reinsurance companies may make a simplified calculation for a specific submodule or risk module as long as the nature, magnitude and complexity of the risks to which they are faced warrant it and it would be disproportionate to require all insurance or reinsurance companies to comply with the standard calculation.
Simplified calculations are calibrated in accordance with Article 151, § 3.
Art. 166. When it is not appropriate to calculate the credit capital required in accordance with the standard formula as referred to in Sub-section II, because the risk profile of the insurance or reinsurance company concerned significantly deviates from the assumptions that underlie the calculation according to this formula, the Bank may, by reasoned decision, require the enterprise concerned to replace a sub-set of parameters used in the calculation according to this formula These particular parameters are calculated to ensure that the company complies with Article 151, § 3.
Sub-section III. - Capital of solvency
required according to integral or partial internal models
Art. 167. § 1^er. Insurance or reinsurance companies may calculate their solvency capital required by an integral or partial internal model approved by the Bank.
§ 2. Insurance or reinsurance companies may use partial internal models to calculate one or more of the following:
1° one or more of the modules or submodules of risk of the basic solvency capital required under sections 154 to 160;
2° the operational risk capital requirement defined in section 163;
3° the adjustment provided for in section 164.
Partial modelling may be applied to the entire activity of the insurance or reinsurance company concerned, or only to one or more of its major operational units.
§ 3. At any request for approval, insurance or reinsurance companies shall attach to a minimum the documentation that the internal model meets the requirements set out in sections 174 to 187.
When the application for approval is a partial internal model, the requirements set out in sections 174 to 187 are adapted to reflect the limited scope of the model.
§ 4. The Bank makes a decision on any application for approval within six months of receipt of the full application.
§ 5. The Bank gives its approval only if it has the assurance that the systems for identifying, measuring, controlling, managing and reporting the risks of the insurance or reinsurance undertaking are adequate and, in particular, that the internal model meets the requirements set out in paragraph 3.
§ 6. Any decision to reject an application for approval of an internal model made by the Bank is motivated.
§ 7. After approval of their internal model by the Bank, insurance or reinsurance companies may be required, by reason of decision, to provide the Bank with an estimate of their solvency capital required under the standard formula, in accordance with subsection II.
Art. 168. § 1^er. A partial internal model is approved by the Bank only when it meets the requirements set out in section 167 and the following additional conditions:
1° its limited scope is duly justified by the company concerned;
2° the solvency capital required as a result better reflects the company's risk profile and, in particular, meets the principles set out in subsection I^re;
3° its design conforms to the principles set out in subsection I^reso as to allow its full integration into the standard solvency capital calculation formula required.
§ 2. When assessing an application for use of a partial internal model covering only certain submodules of a particular risk module or that some operational units of the insurance or reinsurance company with respect to a particular risk module, or both, for part, the Bank may require this insurance or reinsurance company to submit a realistic transition plan in order to extend the scope.
The transition plan outlines how the insurance or reinsurance company plans to extend the scope of its model to other submodules or operational units, to ensure that the model covers a predominant part of its insurance operations with respect to the particular risk module.
Art. 169. As part of the initial approval procedure for an internal model, the Bank approves the policy to amend the insurance or reinsurance model. Insurance or reinsurance companies may modify their internal model in accordance with this policy.
This policy includes a specification of minor changes and major changes to the internal model.
The major changes to the internal model, as well as the changes to the change policy, are systematically subject to the Bank's prior authorization, in accordance with section 167.
The minor changes to the internal model are not subject to the Bank's prior authorization, as they are developed in accordance with this policy.
Art. 170. The legal authority for the administration of the insurance or reinsurance company endorses the application for approval of the internal model by the Bank referred to in section 167, as well as the application for approval of any subsequent major amendments to this model.
It is the responsibility of the legal body of administration to establish systems that ensure the proper functioning of the internal model on an ongoing basis.
Art. 171. Once the approval has been received pursuant to section 167, insurance or reinsurance companies do not return to the standard formula to calculate all of their required solvency capital or any part thereof, as provided for in Sub-section II, unless duly justified and subject to the Bank's approval.
Art. 172. If, after receiving approval from the Bank for the use of an internal model, an insurance or reinsurance company ceases to comply with the requirements set out in sections 174 to 187, it shall promptly submit to the Bank a return to compliance plan within a reasonable period of time or it shall demonstrate without delay that the non-compliance has only a negligible effect.
Where the insurance or reinsurance business does not implement the plan referred to in paragraph 1^er, the Bank may require that this undertaking return to the standard formula to calculate its solvency capital required in accordance with Sub-section II.
Art. 173. Where it is not appropriate to calculate the solvency capital required under the standard formula in accordance with subsection II, because the risk profile of the relevant insurance or reinsurance company is significantly different from the assumptions underlying the calculation according to the standard formula, the Bank may, by reasoned decision, require the relevant company to use an internal model to calculate its required solvency capital.
Art. 174. Insurance or reinsurance companies demonstrate that they use their internal model widely and that it plays an important role in their governance system referred to in section 42, in particular:
1° in their risk management system under section 84 and in their decision-making processes;
2° in their assessment and allocation processes of economic capital and solvency capital, including the assessment referred to in section 91.
Insurance or reinsurance companies further demonstrate that the frequency at which the required credit capital is calculated using the internal model is consistent with the frequency at which their internal model is used for other purposes referred to in paragraph 1^er.
It is the responsibility of the administrative body to ensure the permanent adequacy of the design and operation of the internal model and to ensure that the internal model continues to adequately reflect the risk profile of the insurance or reinsurance company concerned.
Art. 175. The internal model and, in particular, the calculation of the predictive probability distribution underpinning it meet the criteria set out in sections 176 to 183.
Art. 176. Methods used to calculate predictive probability distribution are based on adequate, applicable and relevant actuarial and statistical techniques and are consistent with the methods used to calculate technical provisions.
Methods used to calculate predictive probability distribution are based on credible current information and realistic assumptions.
Insurance or reinsurance companies are able to justify, from the Bank, the assumptions underlying their internal model.
Art. 177. The data used for the internal model are accurate, comprehensive and appropriate.
Insurance or reinsurance companies update at least once a year the data sets they use for the purposes of calculating the predictive probability distribution.
Art. 178. No specific method is prescribed for the calculation of the predictive probability distribution.
Regardless of the calculation method, the ability of the internal model to classify the risks is sufficient to ensure that it is widely used and that it plays an important role in the governance system of the insurance or reinsurance enterprise concerned, including in its risk management system and decision-making processes, as well as in the allocation of its capital in accordance with section 174.
The internal model covers all important risks to which the insurance or reinsurance company concerned is exposed. It covers at least the risks listed in Article 151, § 4.
Art. 179. With respect to the effects of diversification, insurance or reinsurance companies may take into account in their internal model dependencies within the given risk categories, as well as between risk categories, provided the Bank considers appropriate the system used to measure these diversification effects.
Art. 180. Insurance or reinsurance companies can fully take into account the effect of risk mitigation techniques in their internal model, provided that credit risk and other risks arising from the use of risk mitigation techniques are adequately considered in the internal model.
Art. 181. Insurance or reinsurance companies accurately assess, in their internal model, the particular risks associated with financial guarantees and any contractual option where they are not negligible. They also assess the risks associated with the options offered to the insurance licensee, as well as the contractual options available to insurance or reinsurance companies. To this end, they take into account the potential impact of possible changes in financial and non-financial conditions on the exercise of these options.
Art. 182. Insurance or reinsurance companies may take into account, in their internal model, future management decisions that may reasonably be implemented in specific circumstances.
In the case referred to in paragraph 1^er, the company concerned takes into account the time required to implement these decisions.
Art. 183. Insurance or reinsurance companies take into account, in their internal model, all payments to insurance licensees and beneficiaries that they expect to make, whether or not these payments are contractually guaranteed.
Art. 184. Insurance or reinsurance companies may, for purposes of internal modelling, refer to another time horizon or use another measure of risk than those provided for in Article 151, § 3, provided that the results produced by their internal model allow them to calculate the solvency capital required to guarantee insurance and recipients a level of protection equivalent to that provided for in Article 151.
Where possible, insurance or reinsurance companies directly deduct their credit capital required from the predictive probability distribution generated by their internal model, based on the measure of the risk value provided for in Article 151, § 3.
Where insurance or reinsurance companies cannot directly deduct their credit capital from the predictive probability distribution generated by their internal model, the Bank may authorize the use of approximations in the solvency capital calculation process required, provided these companies are in a position to demonstrate to the Bank that insurance licensees benefit from a level of protection equivalent to that provided for in section 151.
The Bank may require insurance or reinsurance companies to apply their internal model to relevant reference portfolios, using assumptions based on external rather than internal data, to control the sizing of the internal model and to verify that its specifications are consistent with generally accepted market practices.
Art. 185. Insurance or reinsurance companies examine, at least once a year, the origins and causes of profits and losses recorded by each of their major operational units.
They demonstrate how categorization of risks in their internal model explains the origins and causes of these profits and losses. Risk categorization and the attribution of profits and losses reflect the risk profile of insurance or reinsurance companies.
Art. 186. Insurance or reinsurance companies set up a regular validation cycle of their model, which includes monitoring the internal model's operation, monitoring the permanent adequacy of its specifications and a confrontation of the results it produces to the data from the experience.
The model validation process involves the validation of the internal model by an effective statistical process allowing insurance or reinsurance companies to demonstrate to the Bank that the resulting capital requirements are appropriate.
The statistical methods used are used to verify the appropriateness of predictive probability distribution in relation not only to loss history, but also to all significant new data and information.
The model validation process includes an analysis of the stability of the internal model and, in particular, a test of the sensitivity of the results it produces to a modification of the fundamental assumptions underlying it. It also includes an assessment of the accuracy, completeness and appropriateness of the data used in the internal model.
Art. 187. Insurance or reinsurance companies prepare documentation describing the details of the design and operation of their internal model.
This documentation demonstrates that it is satisfied with sections 174 to 186.
The documentation provides a detailed description of the theory, assumptions and mathematical and empirical foundations underlying the internal model.
The documentation refers to all circumstances under which the internal model would not function effectively.
Insurance or reinsurance companies provide documentary monitoring of any major changes to their internal model, in accordance with section 169.
Art. 188. The use of a model or data from a third party is not considered to be a reason for exemption from the requirements to which the internal model must meet in accordance with sections 174 to 187.
Sub-section IV. - Minimum capital required
Art. 189. § 1^er. Insurance or reinsurance companies have a minimum of capital required in accordance with the following principles:
1° it is calculated in a clear and simple way, and so that its calculation can be audited;
2° it corresponds to an eligible base equity amount below which the insurance licensees and beneficiaries would be exposed to an unacceptable level of risk if the insurance or reinsurance company was authorized to continue its business;
3° the linear function, referred to in paragraph 2, used to calculate the minimum of capital required is calibrated according to the risk value of the basic funds of the insurance or reinsurance enterprise concerned, with a confidence level of 85% over the year;
4° it has an absolute threshold:
(a) EUR 2,500 000 for non-life insurance companies, including captive insurance companies, except where all or part of the risks identified in one of the branches 10 to 15 referred to in Appendix I are covered, in which case it cannot be less than EUR 3,70,000;
(b) EUR 3,700,000 for life insurance companies, including captive insurance companies;
(c) EUR 3,600,000 for reinsurance companies, except in the case of captive reinsurance companies, in which case it cannot be less than EUR 1,20,000;
(d) the sum of the amounts set out in (a) and (b) for the insurance companies referred to in section 223, paragraph 1^er.
§ 2. Subject to subsection 3, the minimum capital requirement shall be calculated as the linear function of a set or subset of the following variables: technical provisions of the undertaking, subscribed premiums, risk capital, deferred taxes and administrative expenses. The variables used are measured deducted from reinsurance.
§ 3. Without prejudice to paragraph 1^er, 4°, the minimum required capital does not fall below 25% and does not exceed 45% of the required solvency capital of the undertaking, calculated in accordance with subsection II or subsection III of this Section, including any additional capital imposed in accordance with section 323.
§ 4. Insurance or reinsurance companies calculate their minimum required capital at least once a quarter and notify the Bank of the result of this calculation.
When one of the limits referred to in paragraph 3 determines the minimum required capital of a company, the company shall provide the Bank with information to understand its reasons.
Section III. Investments
Sub-section I^re. - Prudent person principle
Art. 190. Insurance or reinsurance companies invest all their assets in accordance with the "custodial person" principle, as indicated in this subsection.
The Bank may, by regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998 and on the advice of the MSDS with respect to branch 23 referred to in Appendix II, specify what should be heard by "custody person".
Art. 191. For the entire asset portfolio, insurance or reinsurance companies only invest in assets and instruments with risks that they can identify, measure, monitor, manage, control and report in an adequate manner and take appropriate account in the assessment of their overall solvency requirement in accordance with Article 91, § 1^erParagraph 2, 1°.
All assets, including assets covering the minimum required capital and the required solvency capital, are invested to ensure the safety, quality, liquidity, profitability and congruence of the portfolio as a whole. In addition, the location of these assets is such that it guarantees their availability.
Assets held for the purposes of the coverage of technical provisions are also invested in a manner appropriate to the nature and duration of insurance or reinsurance commitments. They are invested to the best of the interests of all insurance licensees and beneficiaries, taking into account any published objective.
In the event of a conflict of interest, insurance companies, or entities that manage their portfolio of assets, ensure that the investment is made to the best of the interests of insurance licensees and beneficiaries.
Art. 192. The provisions of this section apply to assets held in representation of life insurance contracts under which the investment risk is borne by the insurance licensee, without prejudice to section 191 and sections 19 and 20 of the Insurance Act.
Where the benefits provided by a contract are directly related to the value of shares of an insurance company within the meaning of Directive 2009/65/EC or to the value of assets contained in an internal fund held by the insurance company, generally divided into shares, the technical provisions for these benefits are represented as closely as possible by these shares or, where shares are not established, by these assets.
Where benefits provided by a contract are directly related to an equity index or a reference value other than those referred to in paragraph 2, the technical provisions for such benefits are represented as closely as possible either by the shares deemed to represent the reference value, or, where shares are not established, by assets of a security right and appropriate negotiability that corresponds as closely as possible to those on which the reference value is based.
Where benefits referred to in paragraphs 2 and 3 include a financial performance guarantee or any other guaranteed benefit, assets held to cover the corresponding additional technical provisions are subject to the provisions of section 193.
Art. 193. Without prejudice to section 191, paragraphs 2 to 5 of this section apply in respect of assets other than those under section 192.
The use of derivative instruments is possible to the extent they contribute to reducing risks or promoting effective portfolio management.
Investments and assets that are not allowed to negotiate on a regulated financial market are maintained at prudent levels.
Assets are subject to appropriate diversification so as to avoid excessive dependency on an asset, issuer or group of particular companies or a given geographic area and to avoid excessive risk accumulation across the portfolio.
Investments in assets issued by the same issuer or by issuers belonging to the same group cannot expose insurance or reinsurance companies to an excessive concentration of risks.
Sub-section II. - Maintenance of a permanent inventory
Art. 194. Insurance companies shall, at any time, hold assets free of any charge, assessed in accordance with Article 123, for an amount that covers the obligations with respect to insurance creditors as they would be due in the case of a liquidation procedure in which it would be terminated insurance contracts. This amount corresponds to contracts under the branches referred to in Appendix II to the inventory value of which the King is entitled, on the advice of the Bank and the MSDS, each in its area of competence, to determine the method of calculation.
Art. 195. The insurance companies shall maintain a special register at their headquarters, known as the "permanent inventory", of the assets referred to in section 194 according to the separate managements referred to in section 230.
When the assets registered in the permanent inventory are encumbered with a real right for the benefit of a third party with the consequence of making a portion of the amount of the assets unavailable for the coverage of the commitments, this situation is reported in the register and the amount not included in the calculation of the requirement under section 194.
Insurance companies communicate the status of the permanent inventory of each separate management to the Bank in accordance with the form and content prescribed by the Bank and in the format and time frame it sets.
Sub-section III. - Asset location
Art. 196. The assets of insurance or reinsurance companies are located in or outside the European Economic Area.
Art. 197. § 1^er. By derogation from Article 196, insurance or reinsurance companies may not locate the assets held to cover technical provisions relating to risks located in the European Economic Area outside this Area only when it comes to:
1° of real property;
2° of securities and
(a) the rights conferred on the insurance or reinsurance company following the deposit of these values with a depositary intermediary are a real right allowing the exercise of a claim on these values, excluding a mere right of receivable; and
(b) the depositary intermediary concerned shall provide the Bank with an attestation that it undertakes to follow any decisions to restrict or prohibit the free disposition of the assets of the insurance or reinsurance undertaking issued under Articles 513 and 517, § 1^er6°.
§ 2. By derogation from Article 196, the Bank may, by regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, impose that the assets held to cover the technical provisions relating to insurance risks subscribed outside the European Economic Area are located in that Space.
If not, the rules relating to the representation of technical provisions of these risks and their location are determined according to the rules of the country of risk.
Art. 198. With respect to reinsurance contracts entered into with a company that falls under the law of a third country and whose control regime is not deemed to be equivalent to the meaning of section 600, the Bank may, by regulation made in accordance with section 12bis, § 2, of the law of February 22, 1998, require that:
1° the technical provisions shall be gross reinsurance and that the representative assets shall be the subject of a claim or the transferor company shall provide an equivalent guarantee;
2° the representative assets of the receivables held under these contracts are located in the European Economic Area.
CHAPTER VII. - Periodic information and accounting rules
Art. 199. Insurance or reinsurance companies deposit their annual accounts to the Bank.
Without prejudice to section 200, the King shall determine, on the advice of the Bank and the FSMA, each in its area of competence:
1° the rules that insurance or reinsurance companies maintain their accounting, conduct assessments of the various balance sheets and prepare their annual accounts and submit their annual report;
2° the rules to be followed by insurance or reinsurance companies for the establishment, control and publication of their consolidated accounts, as well as for the preparation and publication of management and control reports relating to these consolidated accounts.
The Bank may, by regulation made under section 12bis, § 2, of the Act of 22 February 1998, specify the terms and conditions for the application of the rules defined by the royal decrees referred to in paragraph 2.
Art. 200. The insurance companies referred to in section 223 establish their annual accounts in order to show separately the sources of results for life and non-life insurance and reinsurance. All products, including premiums, reinsurance interventions and financial revenues, and expenses, including insurance benefits, technical allowances, reinsurance premiums and operating costs for insurance and reinsurance operations, are broken down according to their origin. The common elements of the two activities are recorded using distribution methods accepted by the Bank.
Art. 201. In addition to the reporting obligations set out in the enforcement measures of Directive 2009/138/EC and without prejudice to sections 312 to 316, insurance or reinsurance companies shall periodically communicate to the Bank the financial information it determines and that are established in accordance with the rules set by the Bank, which also determines the frequency. In addition, the Bank may prescribe the regular transmission of any other encrypted or descriptive information necessary to verify compliance with the provisions of this Act, the orders and regulations made pursuant to these Acts or the enforcement measures of Directive 2009/138/EC.
Art. 202. Without prejudice to Article 80, § 5, the steering committee or, in the absence of a steering committee, the persons responsible for the effective direction of the insurance or reinsurance company, declares to the Bank that the periodic information referred to in Article 201 that is transmitted to it by the company at the end of the first social semester and at the end of the social exercise, is established in accordance with the requirements provided by or under the law, to the
For this purpose, periodic information is required in respect of the accounting data contained therein:
1° complete, i.e. they mention all the data in the accounting and the inventories on which they are based;
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
Art. 203. The Bank may, for certain categories of insurance or reinsurance companies or in particular cases, authorize exemptions from the rules set out in sections 199, paragraph 2, and 201.
CHAPTER VIII. - Recovery plans
Section I^re. - Development of recovery plans
Art. 204. When it considers it justified in terms of potential risks of a significant degregation of the financial situation of an insurance or reinsurance company, including on the basis of its business model, its legal structure, the characteristics inherent in the group of which it is part, its risk profile, the characteristics of the products marketed, the Bank may impose on the insurance or reinsurance company the determination and reinsurance of
The recovery plan envisages various scenarios of severe macro-economic or financial crisis, including system-wide events, corporate-specific crises and, where applicable, crises involving entities of the group whose insurance or reinsurance enterprise is part of.
The recovery plan covers the insurance or reinsurance company and its Belgian and foreign affiliates.
When imposing such a plan, the Bank shall take into account that the insurance or reinsurance undertaking is, if any, included in a group control within the meaning of section 343 or in a supplementary supervision of a financial conglomerate within the meaning of section 451, another insurance or reinsurance undertaking, an insurance holding company, a joint insurance holding company or other financial holding company
Art. 205. The insurance or reinsurance company provides in the recovery plan the conditions and procedures necessary to ensure the timely and effective implementation of measures to restore its financial situation, without significant adverse effects on the Belgian or international financial system.
The recovery plan includes quantitative and qualitative indicators of a potential deterioration of the company's financial situation, with the indication of the times at which it considers whether corrective measures in the plan must be implemented.
To this end, the recovery plan defines appropriate procedures for the regular monitoring of the evolution of the indicators referred to in paragraph 2, as well as for the review of corrective measures to be considered, including the possible escalation process to be followed.
The recovery plan does not consider any exceptional financial support from the public authorities.
Art. 206. The insurance or reinsurance company shall update the recovery plan at least once a year and, in any event, after any modification of its legal or organizational structure, its activities or financial situation, which may have a significant impact on the implementation of the plan.
The Bank may require the company to update the recovery plan more frequently.
Art. 207. Depending on the case, the Bank may specify:
1° the minimum content of the recovery plan;
2° the information to be transmitted by the insurance or reinsurance company to the Bank and the frequency to which it is transmitted.
Section II. - Evaluation of recovery plans
Art. 208. § 1^er. The recovery plan required under section 204 is reviewed and approved by the legal body of administration of the insurance or reinsurance company before it is submitted to the Bank.
§ 2. The insurance or reinsurance company shall submit the recovery plan referred to in subsection 1^er to the Bank within four months of the decision notified to it under section 204.
Subject to paragraph 3, the insurance or reinsurance company shall submit an updated plan to the Bank within two months of the fact that the plan is being updated, provided that the Bank may extend the plan up to six months.
In the case that the fact that the plan has been updated is an amendment to the financial situation of the insurance or reinsurance company that is likely to have a significant impact on the plan, the plan shall inform the Bank without delay and submit an updated plan within the time limit provided by the Bank.
Art. 209. § 1^er. Within three months of receiving the recovery plan, the Bank reviews this plan and assesses whether it meets the requirements set out in or under sections 204 to 207.
To this end, the Bank assesses, inter alia, whether the recovery plan is reasonably expected to:
1° the implementation of the measures set out in the plan shall be such as to maintain or restore the viability and financial position of the insurance or reinsurance company or of the group of which it is a party;
2° the plan and the various options set out therein are likely to be implemented quickly and effectively in financial crisis situations, avoiding, to the extent possible, significant negative effects on the financial system, including in scenarios involving the concurrent implementation of recovery plans of other companies.
In its assessment of the recovery plan, the Bank pays particular attention to the adequacy of the financing of the insurance or reinsurance company, in particular the structure of its own funds, relative to the complexity of its organizational structure and its risk profile.
§ 2. If the Bank considers that a recovery plan has significant deficiencies or that there are significant obstacles to its implementation, it informs the insurance or reinsurance company and, after giving it the opportunity to express its views, invites the Bank to submit, within two months, a revised plan in which it is addressed to these deficiencies or obstacles. The Bank may extend the aforementioned period for a maximum of one month.
§ 3. If the Bank considers that the revised plan in accordance with paragraph 2 does not effectively address the deficiencies or obstacles identified by the Bank, it may require the insurance or reinsurance company to make, within thirty days of notification of this finding, specific changes to the recovery plan.
Art. 210. If the insurance or reinsurance company fails to comply, within the specified time limit, with the invitation referred to in Article 209, § 2, or if the Bank considers that the revised recovery plan submitted in accordance with Article 209, § 2, does not remedy the deficiencies or obstacles that it has identified or that it is not possible to remedy effectively by a given injunction in accordance with Article 209, § 3
The Bank may then enjoin the insurance or reinsurance company to take any measures it deems necessary and proportionate to put an end to these deficiencies or obstacles and in particular require that the insurance or reinsurance company take measures to:
1° adapt its risk profile, including by modifying its tariff policy and/or its subscription policy or its reinsurance and retrocession policy;
2° allow for rapid recapitalization;
3° modify its financing strategy and/or investment policy;
4° modify its governance system.
The Bank's decision is notified to the insurance or reinsurance company.
Section III. - Implementation of recovery plans
Art. 211. § 1^er. The insurance or reinsurance company shall inform the Bank without delay of any decision pursuant to the review conducted under section 205 to take a corrective action as part of the implementation, if any, of its recovery plan or to refrain from taking such action.
§ 2. Without prejudice to the other powers conferred on it by this Act, the Bank may enjoin the insurance or reinsurance company to take one or more corrective measures provided for in its recovery plan if the Bank fails to take the appropriate measures of its own initiative.
CHAPTER IX. - Specific provisions related
insurance or reinsurance activity
Section I^re. - Special insurance provisions
Sub-section I^re. - Provisions
non-life insurance
Art. 212. No beneficiary interest or dividend may be guaranteed in any way prior to the date of the distribution of the benefit.
The King may, on the advice of the Bank and the MSDS, determine the rules to be followed by insurance companies with respect to the distribution and allocation of beneficiary participations, including groups of contracts or commitments to which these rules apply, as well as information that insurance companies provide to the Bank for their control. The Bank may, by way of a regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, supplement such groups of contracts or undertakings.
Sub-section II. - Provisions
special life insurance
Art. 213. For the purposes of this Sub-section and of the decrees and regulations made for its execution, the following shall be understood:
1° technical interest rate: an annual rate of a composite interest act used to determine the current value of a deferred premium or benefit;
2° law of occurrence (of an insured event): a law of probability of carrying out the insured event;
3° loading: any rate element involved in the relationship between the insurance company's commitments and the premiums that are the counterparties, other than the technical interest rates and the laws of the occurrence of insured events;
4° technical bases: all technical interest rates, laws of occurrence and loads involved in the determination of rates or the establishment of reservations;
5° redemption (of contract): termination of contract by the insurance owner;
6° reduction (of contract): decrease in the current value of insured benefits following the termination of payment of premiums;
7° redemption value (at a specified time): benefit to be paid by the insurance company in case of redemption of the contract;
8° reduction value (at a specified time): outstanding benefit in case of reduction;
9° distribution of the beneficiary interest: transfer, for the benefit of contracts, of a beneficiary interest;
10° attribution of the beneficiary interest: final award but, where applicable, conditional of the beneficiary participation in specified contracts.
Art. 214. For each type of product that is the subject of its activity, the insurance company shall communicate to the Bank, prior to its implementation, the bases and methods used for the establishment of the pricing, the calculation of the redemption, reduction and technical provisions, and the allowances it applies. The Bank communicates this information to FSMA.
The Bank may determine, by way of a regulation made under section 12bis, § 2, of the Act of 22 February 1998, the types of products referred to in paragraph 1^er.
Art. 215. New business premiums must be sufficient, based on reasonable actuarial assumptions, to allow the life insurance company to meet all of its commitments, including the provision of adequate technical provisions.
To this end, it can be taken into account all aspects of the financial situation of the life insurance company without the fact that the contribution of foreign resources to these premiums and their products has a systematic and permanent character that could put into question the solvency of this undertaking in the long term.
Art. 216. § 1^er. With respect to life insurance contracts, insurance companies cannot guarantee a higher technical interest rate than a maximum fixed in accordance with the provisions of this paragraph.
The maximum technical rate is 85% of the average over the last 24 months of the yields of the linear obligations of the Belgian State to 10 years, the result being rounded to the nearest 25 pdb (basic point). The maximum technical rate is calculated on 1^er June of each year. It may not exceed 3.75 per cent or less than 0.75 per cent.
If the maximum technical rate calculated in accordance with paragraph 2 is greater or less than 25 pdb at the maximum technical rate in force, the Bank shall inform the MSDS. Within fifteen days, the Bank shall notify the Bank of its opinion on the modification of the maximum technical rate of the contracts referred to in paragraph 1^er.
Within fifteen days of the receipt of the FMSA notice or, in the absence of a notice, within fifteen days of the expiry of the period referred to in paragraph 3, the Bank shall transmit to the Minister with assurances in his or her powers a reasoned proposal to amend the maximum technical rate of contracts referred to in paragraph 1^er, FSMA's opinion is attached to the Bank's proposal.
Within two months of the receipt of the Bank's proposal, the Minister with assurances in his or her powers may, by reason of decision, reject or modify the maximum technical rate proposed by the Bank. In the event of rejection, the maximum technical rate is that in effect at the time of release.
Upon receipt of the Minister's decision or, in the absence of a decision, upon the expiry of the period referred to in paragraph 5, the Bank shall publish to the Belgian Monitor and on its website the new maximum technical rate of insurance contracts referred to in paragraph 1^er. This rate is applicable from 1^er January following that publication.
§ 2. Derogation from paragraph 1^er, insurance companies may guarantee, for a period not exceeding eight years and for a specified benefit and constituted on the date of the undertaking, a technical rate higher than the maximum technical rate referred to in subsection 1^er to the extent that the duration and income of the company's assets permit.
The King shall determine, on the advice of the Bank and the MSDS, the conditions of application of this paragraph.
§ 3. In the event that the maximum technical interest rate is changed under paragraph 1^er, this rate is applicable:
1° to contracts signed from the date of entry into force of the new rate;
2° to contracts entered into before the date of entry into force of the new rate for which the benefit to be constituted is not determined at the time of their conclusion, with respect to the premiums paid from the date of entry into force of the new rate;
3° to contracts entered into before the date of entry into force of the new rate for which the benefit to be constituted is determined at the time of their conclusion, with respect to the premiums paid from the date of entry into force of the new rate, which correspond to an increase or revision of the warranty made from that same date.
When the contract falls under several of the categories referred to in paragraph 1^er or that the benefit to be constituted is determined only for a period less than the total duration of the contract, the provisions of paragraph 1^er applies to each part of the contract concerned as if it were a single contract.
§ 4. Flexible premium transactions are considered as a set of single premium transactions and no tariff guarantees may be made for flexible premiums prior to payment.
Art. 217. No beneficiary interest or dividend may be guaranteed in any way prior to the date of the distribution of the benefit.
Art. 218. A life insurance contract may be linked to one or more dedicated assets. In this case, the insurance company undertakes, in addition to the tariff bases, to distribute and allocate, in the form of beneficiary participation, a share of the profit realized from the investments of these dedicated assets.
Art. 219. A life insurance contract may be linked to one or more investment funds managed by one or more insurance companies. In this case, the investment risk is borne by the insurance owner and no beneficiary participation can be granted from a benefit on investments.
Art. 220. As part of the management of pension collective funds under branch 27 referred to in Appendix II, the insurance company can manage only funds related to pension commitments and solidarity commitments:
1° of a professional pension institution referred to in section 2, 1°, of the Act of 27 October 2006 relating to the supervision of professional pension institutions;
2° of a public administration referred to in section 134, 1°, of the law of 27 October 2006 referred to above;
3° of a public body referred to in section 138, paragraph 1^erthe Act of 27 October 2006 referred to above;
4° of an institution or external service of a public administration or public body created in accordance with sections 136, § 1^erand 138 of the Act of 27 October 2006 referred to above;
5° of a legal entity responsible for the management of a commitment to solidarity, as referred to in section 47 of the Act of 28 April 2003 on supplementary pensions and the tax system of these and certain benefits in respect of social security;
6° of a legal entity responsible for the management of a solidarity regime, as referred to in section 56 of the Program Law (I) of 24 December 2002.
The insurance company may include the management of pension collective funds with a performance or capital conservation guarantee.
Art. 221. For the purposes of this Act, the King shall determine, on the advice of the Bank and the MSDS, the rules to be followed by insurance companies with respect to the exercise of life insurance activities referred to in Appendix II.
In particular, the King sets the rules concerning:
1° the elements forming the technical bases and how they are established;
2° the concepts of redemption value and reduction value, as well as their method of calculation;
3° the calculation of the benefit in case of termination or redemption of the contract;
4° the calculation of the death benefit in the event of an uncovered risk;
5° the limits on the advance on and the pledge of insured benefits;
6° the distribution and allocation of beneficiary participations, as well as the granting of dividends, including the determination of the groups of contracts or commitments to which these rules apply, as well as the information that insurance companies provide to the Bank for their control; The Bank may, by way of a regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, supplement such groups of contracts or undertakings;
7° the inventory of the composition of each dedicated asset fund;
8° the insurance contracts relating to the granting of extra-legal benefits to employees covered by Royal Decree No. 50 of 24 October 1967 relating to the retirement and survival pension of employees.
Sub-section III. - Exercise
life and non-life insurance activities
Art. 222. Any insurance business is prohibited from simultaneously carrying out the non-life insurance activities referred to in Appendix I and the life insurance activities referred to in Appendix II.
Art. 223. By derogation from section 222, insurance companies that, as of March 15, 1979, simultaneously carried out life and non-life insurance activities may continue these activities.
By derogation from section 222, companies that have received the licence for the exercise of the life insurance business may obtain an approval for the exercise of non-life insurance activities restricted to the risks referred to in sections 1 and 2 referred to in Appendix I^re.
Similarly, registered companies only for the risks referred to in Sections 1 and 2 referred to in Appendix I may obtain approval for the exercise of life insurance activity.
Art. 224. The companies referred to in section 223 manage life and non-life activities separately.
In addition, if these companies also carry out reinsurance activities, they manage separately, on the one hand, non-life insurance and reinsurance activities and, on the other, life insurance and reinsurance activities.
The undertakings referred to in section 223 shall ensure that the respective interests of the life insurance and non-life insurance licensees are respected. In particular, they grant a beneficiary interest, a premium return or a benefit equivalent to life insurance contracts only on the basis of the income associated with this activity as if the company was operating only that activity. The same applies to non-life insurance activity.
Art. 225. § 1^er. Without prejudice to section 37, 2° and 3°, the insurance companies referred to in section 223 calculate:
1° a notional amount of the minimum capital required for life, for their insurance or reinsurance activities, calculated as if the company concerned was carrying out only these activities;
2° a notional amount of the minimum capital required in non-life, with respect to their non-life insurance or reinsurance activities, calculated as if the company concerned was only carrying out these activities.
§ 2. The insurance companies referred to in section 223, shall cover at a minimum the total of the following requirements by an equivalent amount of eligible core funds:
1° the notional amount of the minimum capital required for life, for the insurance and life insurance activity;
2° the notional amount of the minimum capital required in non-life, for non-life insurance and reinsurance activity.
The minimum financial obligations referred to in paragraph 1^er related to life and non-life activity, respectively, cannot be supported by the other activity.
§ 3. As long as the minimum financial obligations referred to in paragraph 2 are met and subject to the notification to the Bank, the company may use, to cover the required solvency capital referred to in section 37, 2°, the eligible equity elements still available for one or the other activity.
Art. 226. The insurance companies referred to in Article 223 shall establish a document in which the eligible base capital elements covering each notional amount of the minimum capital required under Article 225 are clearly identified in accordance with Article 150 § 4.
The Bank may specify, by way of a regulation made in accordance with Article 12bis, § 2 of the Act of 22 February 1998, the form and content of the document referred to in paragraph 1^er.
Art. 227. If the amount of eligible core funds allocated to one of the activities is not sufficient to cover the minimum financial obligations referred to in Article 225, § 1^er, the Bank may apply to the deficit activity the measures set out in sections 508 to 517 with the exception of section 510 regardless of the results obtained in the other activity.
By derogation from Article 225, § 2, these measures may include the authorization of a transfer of eligible core funds from one activity to another.
Art. 228. When a non-life insurance company has financial, commercial or administrative ties with a life insurance company, the Bank ensures that the distribution of costs and income between life and non-life activities is not distorted by agreements or arrangements between these companies.
Art. 229. The Bank may impose on insurance companies, by way of a regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, the maintenance of any document or condition allowing it to monitor compliance with the requirements set out in Articles 224 to 228.
Sub-section IV. - Separate management
Art. 230. In addition to the requirement to separately manage life and non-life activities in accordance with section 224, insurance companies establish separate management, by investment fund, identifying separately the insurance activities that fall within branches 23, 26 and 27 referred to in Appendix II, for which the investment risk is borne by the licensee, other activities that fall within the scope of this Annex and which constitute a single separate management.
Art. 231. The insurance or reinsurance company identifies at any time the separate management(s) to which each contract and each claim belong.
The King shall, on the advice of the Bank and the MSDS with respect to their respective areas of competence, determine the obligations of insurance or reinsurance companies with respect to the collection of data in respect of separate management, including the methods of disaggregation of technical provisions and assets between separate management and the conditions under which the representative assets of the technical provisions of separate management may be transferred to another separate management.
Sub-section V. - Community insurance
§ 1^er. Scope
Art. 232. This Sub-section applies to community co-insurance transactions that concern one or more risks classified in branches 3 to 16 referred to in Appendix I and meet the following conditions:
1° the risk is a great risk as defined in section 233;
2° the risk is covered by several insurance companies as "co-insurers", one of which is the aperitor, without solidarity between them, by means of a single contract, with a global premium and for the same duration;
3° the risk is located in the territory of Belgium or several Member States of which one is Belgium;
4° to guarantee the risk, the aperitor is treated as if it were the insurance company that covers the entire risk;
5° at least one of the co-insurers participates in the contract through its seat or branch established in a Member State other than that of the aperitor;
6° the aperitor assumes fully the leading role that it has in the practice of co-insurance and, in particular, determines the conditions of insurance and pricing.
Art. 233. Major risks for the purposes of section 232, mean:
1° risks classified under 4, 5, 6, 7, 11 and 12 listed in Appendix I;
2° the risks classified under branches 14 and 15 referred to in Appendix I when the insurance taker carries on an industrial, commercial or liberal activity and the risks are related to that activity;
3° the risks classified under 3, 8, 9, 10, 13 and 16 mentioned in Appendix I, provided that the insurance taker exceeds the encrypted limits of at least two of the following criteria:
(a) a total of EUR 6,200,000;
(b) a net turnover of EUR 12,800,000;
(c) an average of 250 employees during the fiscal year.
If the insurance taker is part of a set of companies for which consolidated accounts are established in accordance with Directive 83/349/EEC, the criteria set out in paragraph 1^er, 3°, are applied on the basis of consolidated accounts.
Art. 234. Co-insurance transactions that do not meet the requirements of section 232 remain subject to the provisions of this Act, excluding those set out in this subsection.
§ 2. Exercise of activity
Art. 235. Sections 556 to 561 apply only to an aperitor who wishes to exercise in Belgium community co-insurance operations referred to in this subsection.
Art. 236. The amount of technical provisions shall be determined by the co-insurers established in Belgium in accordance with the rules established by or under this Act.
However, technical provisions are at least equal to those determined by the aperitor in accordance with the rules of its original Member State.
Art. 237. The co-insurers established in Belgium provide the Bank, by country concerned, with the statistical elements indicating the importance of community co-insurance operations in which they participate.
The Bank determines, by way of a regulation made in accordance with Article 12bis, § 2 of the Act of 22 February 1998, the nature of the above-mentioned elements, as well as the frequency to which and the medium on which they are communicated.
Art. 238. In the event of the liquidation of an insurance company, the commitments resulting from the participation in a community co-insurance contract are carried out in the same way as the commitments resulting from the other insurance contracts of that undertaking, regardless of the nationality of the insured persons and beneficiaries.
Section II. - Provisions
specific to reinsurance
Sub-section I^re. - Reinsurance ends
Art. 239. For the purpose of applying this Sub-section, "reinsurance ends" any reinsurance under which the maximum potential loss, expressed as the maximum economic risk transferred, arising from a significant transfer of both the risk of subscription and the risk of timing, exceeds the premium over the entire duration of the contract, for a limited but important amount, in conjunction with at least two of the following characteristics:
1 the explicit and material consideration of the temporal value of money;
2° of the contractual provisions aiming at smoothing over time a sharing of the economic effects between the two parties with a view to reaching a target level of risk transfer.
Art. 240. Insurance or reinsurance companies may not enter into reinsurance contracts that end or carry out reinsurance activities only if they are able to detect, measure, monitor, manage, control and report appropriately the risks arising from these contracts or activities.
Art. 241. § 1^er. Without prejudice to the competence of the European Commission as provided for in Article 210, paragraph 2, of Directive 2009/138/EC, the King may, specify and supplement the requirements referred to in Article 240.
§ 2. Under the same conditions, the King, on the advice of the Bank, may make specific provisions for the exercise of reinsurance activities, ends in the following areas:
1° the mandatory conditions to be included in all contracts entered into;
2° sound administrative and accounting procedures, appropriate internal controls and risk management requirements;
3° the accounting, prudential and statistical information requirements;
4° the establishment of technical provisions to ensure their adequacy, reliability and objectivity;
5° the investment of assets covering technical provisions to ensure that it is taken into account the type of transactions carried out by the reinsurance company, and in particular the nature, amount and duration of the expected losses, in order to ensure the sufficiency, liquidity, security, profitability and congruence of its assets;
6° the rules relating to equity, as well as the required solvency capital requirements and the minimum required capital to be held by the reinsurance company in relation to end-insurance activities.
Sub-section II. - Titanization vehicles
Art. 242. Securing vehicles that intend to settle in Belgian territory are required to be approved by the Bank.
Art. 243. Without prejudice to the competence of the European Commission provided for in Article 211, paragraph 2, of Directive 2009/138/EC, the King may, on the advice of the Bank, set the conditions for the approval of securitization vehicles.
In particular, the King may make provisions in the following areas:
1° the scope of the approval;
2° the mandatory conditions to be included in all contracts entered into;
3° the proficiency and honorability requirements referred to in section 40 for persons managing the securitization vehicle;
4° the requirements of competence and honorability for shareholders or associates holding qualified participation in the securitization vehicle;
5° sound administrative and accounting procedures, appropriate internal controls and risk management requirements;
6° the accounting, prudential and statistical information requirements;
7° the solvency requirements of the securitization vehicles.
By regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, the Bank may, on technical and non-essential points, specify and supplement the requirements of this section.
PART III. - Special provisions
related to certain categories of insurance companies
CHAPTER I^er. - Mutual insurance associations
Section I^re. - General provisions
Art. 244. This Chapter is applicable to Belgian insurance or reinsurance companies that have adopted the form of mutual insurance association.
Art. 245. Mutual insurance associations are civil.
They enjoy the legal personality. They are acquired from the day on which their statutes are published in the manner prescribed in section 247.
The powers conferred by this Act to the Commercial Court are, in the case of mutual insurance associations, exercised by the Court of First Instance.
Art. 246. Mutual insurance associations may be called "common insurance funds" when they perform the operations governed by:
1° the Labour Accidents Act of 10 April 1971;
2° the Act of 3 July 1967 on the Prevention and Repair of Damage resulting from Industrial Accidents, Accidents on the Road to Work and Occupational Diseases in the Public Sector;
3° the Royal Decree of 14 November 2003 concerning the granting of extra-legal benefits to employed workers covered by Royal Decree No. 50 of 24 October 1967 relating to the retirement and survival pension of employed workers and to persons referred to in Article 32, paragraph 1^er, 1°, and 2° of the Code of Taxes on Income 1992, occupied outside a contract of work.
Art. 247. The statutes of mutual insurance associations mention hardly nullity:
1° the name and seat of the association;
2° the object for which the association is instituted;
3° the conditions and mode of admission, resignation and exclusion of partners;
4° the extent of the personal commitments undertaken by the partners in the constitution and maintenance of a social fund;
5° the fact that it is not possible to make payments in favour of members from the accounts of the partners only if it does not contravene the capital requirements set out under sections 151 to 189 or, after dissolution of the company, that if all other debts have been settled;
6° the fact that the Bank is notified at least one month in advance of any payment made from the accounts of the partners for purposes other than the individual termination of the affiliation and that it may, during that period, prohibit the payment;
7° the organization and administration of the association, the method of appointment, the powers and the duration of the mandate of the persons responsible for this administration;
8° the method of fixing and recovering contributions or premiums as well as possible supplements for the settlement of claims;
9° the method of establishing and approving accounts;
10° the procedure to be followed in the event of amendments to the statutes or liquidation of the association, without prejudice to the provisions of this Act.
The King may, on the advice of the Bank and FSMA, determine any other provisions that must be included in the statutes of the Belgian mutual insurance associations.
The statutes and their amendments are published in the Annexes of the Belgian Monitor.
Section II. - Transformation of mutual insurance associations
Art. 248. A mutual insurance association may use the faculty provided for in sections 774 and 775 of the Corporate Code to adopt another legal form.
Where a mutual insurance association makes use of the aforementioned faculty, the provisions of this Section shall be applied. These provisions apply by derogation from sections 776 to 788 of the same Code, except to the extent expressly referred to in this Section.
Art. 249. A mutual insurance association may only be transformed into one of the forms of a commercial corporation referred to in section 33.
Art. 250. The transformation proposal is the subject of a supporting report prepared by the legal body of administration and which is placed on the agenda of the general assembly called to decide on the transformation. This report also contains a specific description and justification:
1° of measures regulating the rights of members in society in its new form;
2° without prejudice to the Act of 4 April 2014 on insurance, adaptations to insurance or reinsurance contracts in that framework;
3° of the distribution of shares or shares representative of the social capital of the society in its new form.
The report includes a draft statutes of the company in its new form and a statement summarizing the active and passive situation of the association, which was decided at a date not more than three months and indicating what social capital will be after the transformation into society.
Social capital cannot exceed the net assets as a result of the aforementioned state.
The amount of the net asset cannot be refunded or distributed to shareholders or partners on the occasion of the processing.
Art. 251. The authorized commissioner of the Mutual Insurance Association reports on the status referred to in section 250 and states in particular whether it translates in a complete, faithful and correct manner the situation of the association.
Art. 252. The draft reports referred to in articles 250 and 251 are communicated to the Bank.
When the mutual insurance association concerned is an insurance company, the Bank shall forthwith transmit the reports referred to in paragraph 1^er, to FSMA for advice. The Bank shall notify the Bank within two months of receipt of the reports referred to in paragraph 1^er. In the absence of a notice within this timeframe, the MSDS is deemed not to oppose the proposed transformation.
Within three months of receipt of the reports referred to in paragraph 1^er, the Bank opposes the transformation project when:
1° ADM's opinion concludes that this project is injurious to the rights of insured persons, tenants or beneficiaries;
2° The Bank considers that, by this project, the insurance or reinsurance company no longer meets the obligations imposed by or under this Act.
The Bank shall notify the opposition by registered letter to the position by including the reasons for its decision and, where applicable, the opinion of the MSDS.
Art. 253. Members of the Mutual Insurance Association shall be convened at a general meeting called to deliberate on the decision of transformation in accordance with the statutory rules for amendments to the statutes or, if more stringent, for liquidation.
In the event of a letter, a copy of the reports of the legal body of administration and the Commissioner is attached to the summons. These documents are also transmitted free of charge to the members of the association who make the request in writing.
Art. 254. The transformation of the mutual insurance association is decided by the general assembly. Unless the statutes provide for more stringent quorum and majority conditions, the General Assembly may only validly deliberate if at least half of the voting members are present or represented at the meeting and if the decision collects at least four fifths of the votes cast.
If the quorum required by the statutes or by law is not reached, a second summons shall be made. This second summons meets the rules referred to in Article 253. The second general assembly shall delibrate any number of members holding a voting right present or represented on the same terms and conditions of vote. The convocations to the General Assembly reproduce the text of this article.
Art. 255. The transformation requires the unanimous agreement of the members present if the mutual insurance association has not existed for at least two years or if the statutes provide that it will not be able to adopt another form. Such a statute clause may only be amended under the same conditions.
Art. 256. Immediately after the transformation decision, the statutes of the society in its new form, including the clauses that would alter its social object and the initial composition of the bodies, are decided on the same conditions of presence and majority as those required for the transformation. Otherwise, the transformation is without effect.
Art. 257. Upon approval of the decisions referred to in sections 253 to 256:
1° the Mutual Insurance Association shall be transformed and its members shall become in full right and with immediate effect shareholders or associates of the corporation in its new form in the manner proposed in the report referred to in section 250, as such members shall be deemed to satisfy in full right all the conditions necessary to become partners or shareholders of the corporation in its new form;
2° the members of the association lose all the rights they may still have, even in the future or under condition, because of their former membership;
3° Insurance licensees, insured and any third party to insurance or reinsurance contracts, however, retain the rights acquired by that date under insurance or reinsurance contracts, as such contracts are, for the future, adjusted in full law in the manner proposed in the report referred to in section 250;
4° to the extent that it complies with or continues to comply with the legal and regulatory requirements in this respect, the corporation in its new form continues to benefit from the approvals to carry out insurance or reinsurance activities that the association held prior to its transformation.
Art. 258. Any decision to transform is, barely null, recognized by authentic act. The authentic act reproduces the conclusion of the report of the authorized commissioner established pursuant to section 251.
The authentic act of transformation and the statutes of the society in its new form are published simultaneously in accordance with articles 67, paragraphs 1^er 3, and 73 of the Corporate Code. The act of transformation is published in full; the statutes are extracted in accordance with articles 67 to 69 and 72 of the same Code.
Without prejudice to the immediate opposability of the contractual adaptations referred to in Article 257, 3°, the transformation is subject to third parties the conditions provided for in Article 76 of the Corporate Code.
The powers of attorney, as well as the reports of the legal body of administration and the authorized commissioner, shall be deposited in expedition or in original at the same time as the act to which they relate. Each person may be aware of or obtain a copy of the conditions set out in section 67, paragraph 3, of the Corporate Code.
Art. 259. The provisions of section 784 of the Corporations Code are applicable, with the exception of paragraph 1^er.
Art. 260. Members of the legal body of administration of the Mutual Insurance Association that is transformed are held in solidarity with the concerned, notwithstanding any stipulation to the contrary:
1° of the possible difference between the net assets resumed in the state provided for in section 250 and the social capital of the corporation in its new form;
2° of the overevaluation of the net assets resumed in the condition provided for in section 250;
3° of compensation for damage that is an immediate and direct result of the nullity of the processing operation due to the violation of the rules laid down in Articles 403, 2° to 4°, and 454, 2° to 4°, of the Code of Companies, applied by analogy, or of Article 258, paragraph 1^ereither of the absence or the erroneous character of the statements prescribed by section 453, paragraph 1^erwith the exception of 6° and 9° to 12°, the same Code or article 258, paragraph 1^er.
Section III. - Fusion by absorption
mutual insurance associations
Art. 261. Without prejudice to sections 102 to 106, a mutual insurance association may merge by absorption with another mutual insurance association.
When a mutual insurance association merges by absorption with another mutual insurance association, the provisions of Book XI of the Code of Companies that govern the absorption merger are applied. These provisions shall apply subject to exemptions and with the details referred to in this Section. In this case, the terms "society" and "associated" used in the said Code are the same as the "mutual insurance association" and its "members".
Art. 262. By derogation from Article 671 of the Code of Companies, the absorption of mutual insurance associations is the operation by which one or more mutual insurance associations transfer to another mutual insurance association, as a result of a dissolution without liquidation, the entirety of their assets, actively and passively, through the acquisition, by members of the or associations absorbed, of the quality of members of the mutual insurance association.
Art. 263. The Court of First Instance is competent to hear actions referred to in Article 689 of the Corporations Code relating to the merger of mutual insurance associations.
Art. 264. By derogation from section 693, paragraph 2, of the Corporate Code, the proposed merger refers at least to:
1° the form, name, object and head office of mutual insurance associations called to be merged;
2° a precise description and justification of the measures regulating the rights and obligations of the members of the association absorbed in the absorbing association, and the financial consequences of the merger for members of the associations absorbed and absorbing, in particular with regard to the rights of members to the dividends, the obligation to pay additional contributions in case of deficit and the right of members to the social assets;
3° the date from which the rights and obligations of the members of the association absorbed in the absorbent association take place;
4° without prejudice to the Insurance Act of April 4, 2014, a specific description and justification of the adjustments to be made to insurance or reinsurance contracts as part of the merger;
5° the date on which the operations of the absorbed association are, from the accounting point of view, considered to be performed on behalf of the absorbing association;
6° the rights that the absorbing association recognizes to the members of the association to absorb who have special rights or the measures proposed for them;
7° the emoluments attributed to the authorized commissioners responsible for the drafting of the report under section 266;
8° any particular benefit attributed to the members of the management and administration bodies of the associations called to be merged.
At least six weeks before the general assembly to decide on the merger, the proposed merger shall be deposited at the court of first instance by each of the associations to be merged.
Art. 265. By derogation from Article 694 of the Code of Companies, the written and circumstantial report established by the legal body of administration of each mutual insurance association exposes the heritage situation of associations called to be merged and explains and justifies, from the legal and economic point of view, the opportunity, conditions, terms and consequences of the merger, as well as the measures regulating the rights of members of the association absorbed in the association
Art. 266. By derogation from section 695, paragraphs 2 and 3 of the Corporate Code, the Authorized Commissioner reports on the financial consequences of the merger for members of the absorbed mutual insurance association and the absorbing mutual insurance association.
The report must at least:
1° indicate whether the financial and accounting information contained in the report of the legal body of administration referred to in section 265 is faithful and sufficient to inform the general assembly called to vote on the proposed merger;
2° describe the consequences of the merger on the rights of members to the dividends, their obligations to the payment of additional contributions in the event of a deficit and their right to social ownership.
Art. 267. In each mutual insurance association, members of the association are summoned to a general assembly called to deliberate on the merging decision, in accordance with the statutory rules for the amendment to the statutes or, if more stringent, for the liquidation.
Article 697, § 1^erParagraph 2, paragraph 2, paragraph 1^er, 4°, of the Corporate Code is applicable to mutual insurance associations.
Art. 268. For the absorption of mutual insurance associations, the conditions of quorum and majority referred to in Article 699, § 1^er, 1°, of the Code of Societies applies on the understanding that the words "social capital" and "capital" must be substituted for the words "social funds".
Article 699, § 3, of the Code of Companies is not applicable to the absorption of mutual insurance associations.
Art. 269. By derogation from Article 701 of the Code of Companies, any amendments to the statutes of the absorbing mutual insurance association, including the clauses that would alter its social object, are arrested on the conditions of presence and majority required by the statutes of the absorbing association.
Art. 270. For the purposes of section 704, paragraph 1^er, of the Code of Companies, the date referred to in Article 693, paragraph 2, 5°, of the same Code is, for the removal of mutual insurance associations, the date referred to in Article 264, 5°.
Art. 271. Section 211 of the IRB 1992 is applicable to the absorption of mutual insurance associations as the associations concerned are subject to corporate tax.
CHAPTER II. - Companies submitted
a particular diet due to their size
Section I^re. - Scope of application
Art. 272. This Chapter applies to insurance companies that meet the following conditions:
1° the annual cashing of gross premiums issued by the company does not exceed EUR 5,000;
2° the total of the technical provisions of the enterprise, or of the group within the meaning of section 339, 2° of which it is a part, deduction not made from the claims arising out of the reinsurance contracts and the securitization vehicles referred to in section 125, does not exceed EUR 25,000;
3° the activity of the company does not include insurance activities covering the risks of civil liability, credit and bail, unless these are incidental risks within the meaning of Article 21, § 2;
4° the activity of the company does not include reinsurance transactions;
5° the company does not carry out, directly or indirectly, any activity abroad.
Art. 273. Insurance companies that, for three consecutive years, exceed one of the amounts referred to in section 272 shall no longer avail themselves of the provisions of this Chapter.
A company that solicits approval as an insurance company in accordance with Chapter I^er of Part II of this Book shall not avail itself of the provisions of this Chapter if, according to the forecast, one of the thresholds set out in section 272 is likely to be exceeded over the next five years.
Art. 274. A registered insurance company in accordance with Chapter I^er of Part II of this Book may apply to benefit from the provisions of this Chapter when, in addition to the conditions of section 272, it shall, at the discretion of the Bank, meet the following conditions:
1° none of the thresholds set out in section 272 were exceeded in the three years preceding the application;
2° none of the thresholds set out in section 272 are forecast to be exceeded over the five years following the application.
The company shall, in support of its application, provide the information necessary to verify the conditions set out in paragraph 1^er.
Section II. - Companies that have entered into an agreement involving the full and systematic reinsurance of insurance contracts or the assignment of obligations
Art. 275. § 1^er. This Act, with the exception of the provisions referred to in this Section and Books IV and V, is not applicable to non-life insurance companies that meet the requirements of sections 272 and 273 and have entered into with an insurance or reinsurance company approved under Part II of this Book or authorized under Part I^er of Book III an agreement that includes the full and systematic reinsurance of the insurance contracts that they subscribe or the assignment of contractual obligations involving the substitution of the transferee enterprise to the transferor enterprise for the performance of the commitments resulting from the said contracts.
This agreement refers to the obligation, for the transferee enterprise, to notify the Bank, at least three months before the expiry, its termination or non-renewal, as well as any provision that would have the effect of losing the benefit of this paragraph to the transferor company.
§ 2. The benefit of the provisions of paragraph 1^er is subject to prior registration.
The application for registration is addressed to the Bank, accompanied by an administrative record that meets the conditions set by the Bank, including evidence that the conditions set out in paragraph 1^er are satisfied, as well as a copy of the agreement identifying the transferee business.
The Bank decides on the application for registration within two months of the introduction of a complete file.
Without exceeding the period referred to in paragraph 3, registration decisions shall be notified to applicants within fifteen days by registered letter to the position or with acknowledgement of receipt.
The Bank sets out a list of insurance companies registered under this section. This list and any changes made therein are posted on its website.
Sections 22, 23, 27 and 30 are applicable.
§ 3. The undertakings referred to in this Section shall, upon request, provide the Bank with all necessary information to verify compliance with the registration requirements of this Section.
For the purposes of paragraph 1^er, the Bank may, on an individual basis or by regulation made in accordance with section 12bis, paragraph 2, of the Act of 22 February 1998, define the nature, scope, format, frequency and modalities of transmission of information that it requires to be communicated by local insurance companies.
Businesses communicate to the Business Bank, without delay, any element likely to lead to non-compliance.
Articles 304, paragraph 2, 1 and 305 to 307 are applicable.
§ 4. Where the Bank finds that an insurance company referred to in this Section does not operate in accordance with the provisions of this section or the measures taken for its execution, or that it has elements that indicate that such an undertaking may no longer operate in accordance with these provisions in the next 12 months, the Bank shall determine the time limit within which it must be remedied.
If, at the end of the period established under paragraph 1^er, the company has not addressed the situation, the Bank may take one or more of the measures listed in Article 517, § 1^er1°, 7°. Paragraphs 2 to 7 of the same article and 518, paragraph 1^er, are applicable by analogy.
Section 293 is applicable.
§ 5. Article 102, paragraph 1^er, 2° and 3° and 2 and articles 105 and 106 are applicable.
Section III. - Other insurance companies
Art. 276. For insurance companies operating under this Chapter that do not benefit from the provisions of section 275, the provisions of this Act are applicable under the conditions and with the details and restrictions provided for in this Section.
The King further determines, with the details and restrictions that He specifies, the provisions of the enforcement measures of Directive 2009/138/EC that are applicable to insurance companies covered by this Chapter.
The list referred to in section 31 refers separately to the undertakings referred to in this section.
Art. 277. Sections 37 and 38 are applicable on the understanding that references to sections 151 and 189 are to be heard as being in sections 286 and 287 respectively.
Art. 278. Sections 45 and 46 are not applicable.
Effective management is entrusted to at least two physical persons.
The duties of the steering committee, by or under this Act, shall be assumed by the persons responsible for effective management.
Derogation from paragraph 1^er, the Bank may, depending on the size and risk profile of the insurance company, impose a steering committee in accordance with sections 45 and 46.
Art. 279. Without prejudice to the obligations under the Code of Companies with respect to listed companies, articles 48 to 53 and 56, § 3, are not applicable.
The functions assigned to the audit committee, the compensation committee and the risk committee by sections 49 to 51 are performed by the legal body of administration as a whole, excluding its members who are responsible for the effective management or, where appropriate, its executive members.
Art. 280. Sections 74 and 75 are applicable on the understanding that references to sections 151 and 189 should be heard as being respectively in sections 285 and 286.
Art. 281. § 1^er. Section 83 is not applicable.
§ 2. The undertakings referred to in this Section shall ensure that the members of the legal body of administration, effective management and, where appropriate, the steering committee shall demonstrate sufficient availability in the performance of their functions, taking into account the extent and complexity of the operations carried out by the company and shall not be in situations of conflict of interest in the light of the various mandates or functions they perform.
The company adopts and enforces internal rules for compliance with the objectives referred to in paragraph 1^er and publication of the exercise of external functions by persons referred to in paragraph 1^er.
The Bank may determine the terms and conditions of the obligations referred to in this paragraph by regulation adopted under Article 12bis, § 2, of the Act of 22 February 1998.
Art. 282. Sections 86 to 91 are not applicable.
Art. 283. Sections 95 to 97 and 99 to 101 are not applicable.
The Bank may, by way of regulation adopted pursuant to Article 12bis, § 2, of the Act of 22 February 1998, impose on the enterprises covered by this Section, according to the frequency it determines, the publication of information relating to their credit and their financial situation.
Art. 284. Sections 107 to 122 are not applicable.
Art. 285. § 1^er. By derogation from sections 151 to 188, the solvency capital required by the undertakings referred to in this Section shall not be less than the sum of the following amounts:
1° for non-life insurance activities with the exception of those related to current rents and coverage of natural disaster risks, storms, hail or jelly: 25% of the average loss charge of the last three closed years;
2° for non-life insurance activities related to the coverage of the risks of natural disasters, storms, hail and jelly: 25% of the average loss charge for the last seven closed years;
3° for life insurance activities, with the exception of those relating to miscellaneous risk coverage within the meaning of Article 21, § 2, and for rents in the course of non-life insurance activities, the sum of:
(a) 4% of the technical provisions of the previous year, which is reduced to 1% for the activities for which the investment risk is supported by the insurance licensee and the activities under section 25 of Appendix II;
(b) 0.3% of non-negative capital in the previous year.
4° for life insurance activities related to the coverage of incidental risks within the meaning of Article 21, § 2: 25% of the average charge of the claims of the last three closed years.
Any amount determined under paragraph 1^erthe solvency capital required is at least equal to the amount determined under section 189, § 1^erFour.
§ 2. For the purposes of this section, the Bank specifies, by way of a regulation adopted under Article 12bis, § 2 of the Act of 22 February 1998:
1° the method of calculating the load of the claims;
2° the endeavorable limits which the interventions of reinsurance companies and securitization vehicles are taken into account in calculating the charge of the intended claims, technical provisions and capital under risk.
Art. 286. By derogation from section 189, the undertakings referred to in this Section shall have a minimum of capital required not less than 60% of the credit capital required in accordance with section 285.
Art. 287. § 1^er. Sections 140 to 150 are not applicable.
§ 2. The following elements are taken into consideration for the creation of the required solvency capital referred to in section 285:
1° the paid social capital, plus the emission premiums or, if it is mutual insurance associations, the actual initial funds paid in addition to the sum of the societal accounts;
2° reserves (legal and free) do not correspond to commitments or are not classified as provisions for equalization and disasters;
3° results postponed;
4° the fund for future endowments when it can be used to cover any losses and has not been allocated to the participation of insurance licensees;
5° subordinate loans;
6° half of the unpaid portion of the social capital or the original fund, as soon as the paid portion reaches 25% of that capital or fund;
7° in the case of a mutual insurance association with variable contributions, any future debt that the association may hold on its members by recalling contributions for the next twelve months;
8° the net latent surplus-values from the valuation of assets, to the extent that these net latent surplus-values do not have an exceptional character.
It is deducted from the elements referred to in paragraph 1^er, the shares of the insurance company, as well as the elements referred to in the 5th paragraph 1^er issued by and held directly by the insurance company.
Items referred to in 5° to 8°, paragraph 1^er, may only be taken into consideration by the Bank's prior agreement and provided that the total of these elements does not exceed 60% of the solvency capital required. The Bank bases its approval on:
1° the status of the relevant counterparties, taking into account their capacity and willingness to pay;
2° the possibility of retrieval of the equity element, taking into account the legal form of the element, as well as any circumstance that could prevent it from being paid or successfully called;
3° any information on the outcome of calls issued in the past by insurance companies for similar equity elements, as this information may be reasonably used to estimate the expected outcome of future calls.
§ 3. Consideration may be given to the establishment of the minimum capital requirement, the elements referred to in paragraph 1^erParagraph 1^er1°, 4°.
§ 4. The Bank may, by way of a regulation made in accordance with Article 12bis, § 2, of the Act of 22 February 1998, determine the other conditions to which the elements of equity referred to in this section must meet.
Art. 288. By derogation from sections 125 to 139, the companies referred to in this Section shall calculate and account for their technical provisions according to the rules of the Royal Decree of 17 November 1994 on the annual accounts of insurance and reinsurance companies.
Technical provisions referred to in paragraph 1^er are represented at any time by equivalent assets belonging in full ownership to the insurance company.
By derogation from Article 123, the Bank may, by regulation made in accordance with Article 12bis, § 2 of the Act of 22 February 1998 determine the rules for the assessment of representative values.
Section 194 is applicable on the understanding that the assets are assessed in accordance with paragraph 3.
Art. 289. Sections 204 to 211 are not applicable.
Art. 290. Sections 313 to 316 are not applicable.
For the purposes of section 312, the following rules apply:
1° the predefined moments referred to in paragraph 2, 1°, (a) of that article 312, may not have a frequency greater than one year;
2° the Bank may limit the regular communication of the information required for control purposes;
3° the Bank may exempt a company from the obligation to disclose information referred to in article 312 position per position provided that the company is able to provide it with this information at the first request.
Art. 291. Section 324 is not applicable.
Art. 292. Sections 510 and 511 are applicable on the understanding that references to sections 151 and 189 must be agreed as being made respectively in sections 285 and 286.
Art. 293. If, in violation of the geographical limitation of its activities, a company under the provisions of this Section carries out activities abroad, the Bank shall inform the supervisory authorities of the Member States in which activities are carried out and their request to take appropriate measures to prevent the company from continuing these operations in their territory.
CHAPTER III. - Local insurance companies
Section I^re. - Scope of application
Art. 294. This Chapter is applicable to insurance companies that restrict their insurance activities to the municipality of their headquarters and neighbouring Belgian municipalities. These companies are called "local insurance companies".
Art. 295. With the exception of those provided for in this Chapter and the provisions of Books IV and V, local insurance companies are exempted from the application of this Act.
Section II. - Registration
Art. 296. Access to insurance activities by a local insurance company is subject to prior registration.
The application for registration is addressed to the Bank, along with an administrative record that meets the conditions set by the Bank, including the description of the business management structure and the evidence that the conditions provided for in section 298 are met.
The Bank decides on the application for registration within six months of the introduction of a complete file.
Without exceeding the period referred to in paragraph 3, registration decisions shall be notified to applicants within fifteen days by registered letter to the position or with acknowledgement of receipt.
The Bank establishes a list of local insurance companies registered under this Chapter. This list and any changes made therein are posted on its website.
Sections 22, 23, 27 and 30 are applicable.
Art. 297. A registered insurance company in accordance with Part I^er of this Book may waive its approval and apply for registration in accordance with this Chapter if:
1° it fulfils all the conditions listed in Article 298;
2° the threshold set out in section 298, 3°, d) was not exceeded during the three years preceding the application and, as forecast, is not likely to be exceeded within the five years following the application;
3° it waives its approval in accordance with Article 538, paragraph 6 of that Article 538 being not applicable as long as the undertaking is registered under this Chapter.
Section III. - Conditions
granting and maintaining registration
Art. 298. The registration of local insurance companies is subject to the following conditions:
1° be incorporated as a mutual insurance association or a cooperative corporation;
2° having put in place an effective direction consisting of at least two persons acting jointly, Article 40 § 1^er, paragraph 2, of this Act and section 20 of the Act of 25 April 2014 applicable to them;
3° limit their activities as follows:
(a) the insured property meets the definition of the simple risks referred to in Article 5 of the Royal Decree of 24 December 1992 carrying out the law of 25 June 1992 on the land insurance contract, and are located in the commune where the local insurance company has its headquarters or in neighbouring Belgian municipalities;
(b) the insured perils fall under branches 8, 9 and 16 referred to in Annex I and, provided that they are incidental within the meaning of Article 21, § 2, at the above-mentioned perils, of branches 1, 3, 13, 17 and 18 referred to in the same Annex;
(c) limit their purpose to direct insurance transactions, as referred to in (a) and (b) and to transactions that flow directly to the exclusion of any other commercial activity;
(d) limit the annual cash in respect of transactions referred to in (a) and (b) to one million euros.
4° to reassure all of their direct insurance activities by a company authorized to carry out reinsurance activity in Belgium up to at least 90%, with this percentage being increased to 100% for the risks of liability and natural disasters;
5° carry out insurance activities in accordance with 3° and 4° prior to 1^er January 2016.
Section IV. - Control
Art. 299. § 1^er. Local insurance companies shall provide the Bank, upon request, with all necessary information to verify compliance with the registration conditions provided for in section 298.
For the purposes of paragraph 1^er, the Bank may, on an individual basis or by regulation made in accordance with section 12bis, paragraph 2, of the Act of 22 February 1998, define the nature, scope, format, frequency and modalities of transmission of information that it requires to be communicated by local insurance companies.
Local insurance companies communicate to the Bank of Initiative, without delay, any element likely to lead to non-compliance.
Articles 304, paragraph 2, 1 and 305 to 307 are applicable.
§ 2. Article 102, paragraph 1^er, 2° and 3°, and 2 and 105 and 106 are applicable
Section V. - Exceptional measures
Art. 300. When the Bank finds that a local insurance company does not operate in accordance with the provisions of this Chapter or the measures taken for its execution, or that it has evidence that this undertaking may no longer operate in accordance with these provisions in the next 12 months, it sets the time limit for it to be remedied.
If, at the end of the period established under paragraph 1^er, the local insurance company has not remedied the situation, the Bank may take one or more of the measures listed in 517, § 1^er1°, 7°. Paragraphs 2 to 7 of the same article and 518, paragraph 1^er, are applicable by analogy.
Section VI. - End of registration
Art. 301. § 1^er. A registered local insurance company has the ability to waive registration for all of its activities.
Article 538, §§ 2, to 5, is applicable by analogy.
§ 2. If, at the end of the period established under Article 300, paragraph 1^er, the local insurance company has not remedied the situation, the Bank may revoke the registration for all the insurance branches practised.
In the case referred to in paragraph 1^er, the local insurance company is dissolved in full right and is terminated in accordance with sections 183 et seq. of the Corporate Code.
§ 3. Voluntary bankruptcy or dissolution within the meaning of sections 181 and 182 of the Code of Companies of a local insurance company results in the cancellation of its registration for all insurance branches.
Art. 302. § 1^er. The end of the registration will ban new insurance contracts.
In accordance with paragraph 1^er and Article 301, § 3, Article 187 of the Corporate Code and Article 46 of the Bankruptcy Act of 8 August 1997 only allows the execution of insurance contracts in progress, excluding the conclusion of any new insurance contracts.
§ 2. If, in violation of the geographic limitation of its activities, the local insurance company carries out activities abroad, the Bank shall inform the supervisory authorities of the Member States in which activities are carried out and their request to take appropriate measures to prevent the local insurance company from pursuing these operations in their territory.
§ 3. Section 545 is applied by analogy.
PART IV. - Enterprise control
CHAPTER I^er. - Bank control
Section I^re. - General principles
Art. 303. § 1^er. The Bank shall ensure that each insurance or reinsurance company operates in accordance with the provisions of this Act, the decrees and regulations made pursuant to this Act and the European regulations directly applicable, without prejudice to the competences vested in the MSDS under Article 45, § 1^erParagraph 1^er, 3°, and § 2, of the law of 2 August 2002.
§ 2. In carrying out its general duties, the Bank
1° duly takes into account the potential impact of its decisions on the stability of the financial system of all other Member States concerned, in particular in emergency situations, based on the information available at that time; in this regard, in periods of extreme instability in financial markets, the Bank takes into account the possible procyclical effects of its action;
2° bases its control on a forward-looking and risk-based approach;
3° in accordance with the principle of proportionality, applies the legal and regulatory requirements with respect to the nature, extent and complexity of the risks inherent in the activity of the insurance or reinsurance company.
§ 3. Derogation from paragraph 1^er, the control mission provided for in this Act and the related prerogatives provided for by or under this Act and by the enforcement measures of Directive 2009/138/EC shall be entrusted to the mutuality control office with respect to mutual insurance companies.
Art. 304. For the purpose of its mission, in addition to the information that insurance or reinsurance companies communicate in accordance with the provisions of Section III, the Bank may be provided with any information relating to the organization, operation, situation and operations of insurance or reinsurance companies.
It may conduct on-site inspections and be informed and copied, without displacement, any information held by the company, with a view to
1° to verify compliance with the legal and regulatory provisions and directly applicable European regulations relating to the status of eligible insurance or reinsurance companies, in particular the provisions relating to the solvency requirements, technical provisions, eligible assets and funds, as well as the accuracy and sincerity of accounting and annual accounts, as well as the statements and other information transmitted by the company;
2° to verify the adequacy of the governance system, and in particular the management structures, the administrative and accounting organization, the internal control and the forward-looking management policy of the equity needs and the liquidity of the enterprise;
3° to ensure that the management of the company is healthy and prudent and that its situation or operations are not likely to jeopardize its liquidity, profitability or solvency.
Prerogatives referred to in subparagraphs 1^er and 2 also cover access to the agendas and minutes of the meetings of the various bodies of the company and their internal committees, as well as the related documents and the results of the internal and/or external evaluation of the operation of the said bodies.
Art. 305. As part of its control and, in particular, inspections, the Bank's officers are entitled to receive any information and explanations that they consider necessary for the performance of their duties and may, for that purpose, require maintenance with the executives or staff of the undertaking that they designate.
Art. 306. Inspection reports and, more generally, all documents from the Bank that it indicates are confidential cannot be disclosed by insurance or reinsurance companies without the Bank's express consent.
Failure to comply with this obligation is punishable by the penalties provided for in article 458 of the Criminal Code.
Art. 307. Without prejudice to section 92, paragraph 2, 3°, in the event of an appeal to the subcontractor, the Bank may also exercise its inspection prerogatives referred to in section 304, paragraph 2, with the companies to which the insurance or reinsurance companies use as service providers (subcontract - outsourcing) in order to verify whether the conditions of these benefits are not in a way that affects compliance by the companies Prerogatives referred to in sections 305 and 310 may also, by analogy, be exercised with respect to such service providers.
The supervisory authorities of another Member State whose insurance or reinsurance companies that emerge from their control competences use companies as service providers (subcontracting - outsourcing) located in Belgium may exercise the prerogatives in respect of these service providers provided for in paragraph 1^er, if any, through the persons they mandate for this purpose. At their request, the Bank may exercise these prerogatives on behalf of these authorities.
Art. 308. In order to ensure effective and coordinated control of insurance companies, the Bank and the MSDS, on the one hand, the Bank and the Mutual Control Board, on the other hand, conclude a protocol. They publish this protocol on their respective website.
These protocols determine the modalities of collaboration between, respectively, the Bank and the MSDS, and the Bank and the Mutual Control Board in all cases where the law provides for a notice, consultation, information or other contact between these institutions, as well as in cases where a dialogue between these institutions is necessary to ensure uniform application of the legislation.
Art. 309. The Bank does not know a relationship between an insurance or reinsurance company and a specified client only to the extent required for the control of that business.
Section II. - Control
activities carried out in another Member State
Art. 310. § 1^er. The Bank may proceed to the branches of the Belgian insurance or reinsurance companies established in another Member State, with the prior information of the supervisory authorities of that State, to the inspections referred to in Article 304, paragraph 2, and to any inspection to collect or verify on-site information relating to the management and management of the branch, as well as any information that may facilitate the control of the insurance or reinsurance company. The inspection authorities of the host Member State may participate in this verification.
The Bank may, for the same purposes, and after having notified the authorities referred to in paragraph 1^er, load an expert, whom she designates, to carry out useful audits and expertise. The remuneration and costs of the expert are borne by the company.
It may also request such authorities to conduct the audits and expertise referred to in paragraph 1^er She tells them.
Where, however, it is prohibited by the authorities of the host Member State to exercise its right to such verifications or that the authorities of that State are not able to participate in such verifications, the Bank may refer to IOPA, and request its assistance in accordance with Rule 19 1094/2010.
§ 2. Where service providers referred to in 307, paragraph 1^er, are located in another Member State, paragraph 1^er is applicable by analogy with respect to audits.
Art. 311. At the request of the supervisory authorities of a Member State who note that an insurance or reinsurance company having a branch or operating within the framework of the free provision of services on its territory does not comply with the legal provisions of that Member State which are applicable to it, the Bank shall, as soon as possible, take all appropriate measures to ensure that the company ends this irregular situation.
In particular, the Bank may take one or more of the measures referred to in Articles 517 and 603.
The Bank informs the supervisory authorities of the host Member State of the measures taken.
In the cases referred to in section 155, paragraph 3 of Directive 2009/138/EC, the Bank may refer to IAPO and seek assistance in accordance with section 19 of Regulation 1094/2010.
Section III. - Control information
Art. 312. § 1^er. Insurance or reinsurance companies provide the Bank with all necessary information for control, taking into account the control objectives set out in section 303. This information shall include, at a minimum, the information necessary to perform the following tasks as part of the implementation of the control process referred to in Section IV:
1° to assess the governance system applied by companies, their activities, the valuation principles they apply for solvency purposes, the risks to which they are exposed and their risk management systems, the structure of their capital, their capital needs and the management of their capital;
2° make any appropriate decision to exercise its control rights and functions.
§ 2. For the purposes of paragraph 1^er, the Bank may:
1° define, on an individual basis or by way of a regulation made in accordance with Article 12bis, § 2 of the Act of 22 February 1998, the nature, scope, format, frequency and modalities of transmission of information referred to in paragraph 1^er, which it requires communication from insurance or reinsurance companies at the following times:
(a) at predefined times;
(b) where predefined events occur;
(c) in investigations into the situation of an insurance or reinsurance company;
2° obtain any information regarding contracts held by intermediaries or contracts entered into with third parties;
3° require information from external experts;
4° prescribing the regular transmission of encrypted or descriptive information other than those referred to in paragraph 1^erwhere such information is necessary for the verification of compliance with the provisions of this Act or the orders and regulations made pursuant to it and the enforcement measures of Directive 2009/138/EC.
§ 3. The information referred to in paragraphs 1^er and 2 include:
1° qualitative or quantitative elements, or any appropriate combination of these elements;
2° historical, current or prospective elements, or any appropriate combination of these elements;
3° of data from internal or external sources, or any appropriate combination of such data.
§ 4. The information referred to in paragraphs 1^er and 2 respect the following principles:
1° they reflect the nature, extent and complexity of the activities of the company concerned, including the risks inherent in this activity;
2° they are accessible, complete for everything that is important, comparable and consistent over time;
3° they are relevant, reliable and understandable.
Art. 313. Notwithstanding the predefined moments referred to in Article 312, § 2, 1°, (a) but without prejudice to Article 189, § 4, the Bank may authorize an insurance or reinsurance company to communicate the information for control purposes only once a year in a case where the provision of this information would be a disproportionate burden given the nature, extent and complexity of the risks inherent in the enterprise.
Art. 314. The Bank may limit the regular communication of the information required for the purposes of control or provide insurance or reinsurance companies with respect to this post-per-station reporting obligation, where:
1° the provision of this information would be a disproportionate burden given the nature, extent and complexity of the risks inherent in the business activity of the company;
2° the provision of this information is not necessary for the effective control of the enterprise;
3° the dispensation does not harm the stability of the financial systems concerned in the European Union; and
4° the company is able to provide information ad hocly.
Art. 315. Sections 313 and 314, in that they relate to the communication of post-per-station information, are not applicable where the insurance or reinsurance business is part of a group within the meaning of section 339, 2°, unless the company demonstrates to the Bank that the communication of information at a frequency greater than once the year or post-per-station is inappropriate, given the nature, scope and complexity of the group.
The exemption referred to in paragraph 1^er is permitted only to the following companies:
1° companies that together represent not more than 20% of the Belgian non-life insurance or reinsurance market, on the understanding that the market share of these companies is based on gross premiums issued;
2° companies that together represent not more than 20% of the Belgian insurance or life insurance market, on the understanding that the market share of these companies is based on the raw technical provisions.
The Bank gives priority to smaller businesses when determining the eligibility of these companies to these exemptions.
Art. 316. For the purposes of sections 313 and 314, as part of the prudential control process, the Bank assesses whether the provision of information represents a disproportionate burden with respect to the nature, extent and complexity of the risks to which the undertaking is exposed, taking into account at least:
1° the volume of premiums, technical provisions and assets of the company;
2° the volatility of claims and compensation covered by the company;
3° of the market risks to which the investments of the company take place;
4° of the level of risk concentrations;
5° of the total number of life insurance and non-life sectors for which approval is granted;
6° the potential effects of the management of the company's assets on financial stability;
7° of the systems and structures of the company enabling it to communicate information for the purposes of the control and written policy referred to in Article 77, § 7;
8° the adequacy of the corporate governance system;
9° of the level of equity covering the required solvency capital and the minimum capital required;
10° because the company is or is not a captive insurance or reinsurance company covering only the risks associated with the commercial or industrial group to which it belongs.
Art. 317. § 1^er. Insurance or reinsurance companies shall communicate to the Bank at least three weeks prior to the meeting of the General Assembly or, in its absence, the decision-making body of the company, the draft amendments to the statutes, as well as the decisions they propose to make at that meeting and which are likely to have an impact on contracts in general.
The Bank may require that any comments it makes regarding these projects be brought to the attention of the General Assembly or, in its absence, of the corporate decision-making body.
§ 2. Insurance or reinsurance companies shall communicate to the Bank within one month of their approval by the General Assembly or, if it fails, by the relevant decision-making body, changes to the Regulations and decisions that may affect the contracts.
The Bank may, within one month of the date on which it was aware, object to the execution of any decisions or amendments referred to in paragraph 1^erwhich would violate the provisions of this Act or its enforcement measures or enforcement measures of Directive 2009/138/EC.
Section IV. - Prudential monitoring process
Sub-section I^re. - Prudential Monitoring and Evaluation Procedure
Art. 318. As part of its mission under section 303, the Bank examines and evaluates, on a regular basis, the strategies, processes and procedures for the communication of information established by insurance or reinsurance companies with a view to complying with the provisions set out in or under this Act and the provisions of the enforcement measures of Directive 2009/138/EC.
This review and evaluation include assessing the qualitative requirements of the governance system, assessing the risks to which the companies concerned are exposed or could be exposed, and assessing their ability to measure these risks in the context of the environment in which they operate.
Art. 319. In particular, the Bank shall examine and evaluate, in accordance with the enforcement measures of Directive 2009/138/EC, if satisfied:
1° to the requirements for the governance system set out in section 42, including internal risk and solvency assessment;
2° to the requirements for the technical provisions of articles 124 to 139;
3° to the capital requirements set out in sections 151 to 189;
4° to the investment rules set out in sections 190 to 198;
5° to the requirements for the quantity and quality of the clean funds provided for in sections 140 to 150;
6° where the insurance or reinsurance company uses an integral or partial internal model, to the requirements for integral and partial internal models provided for in sections 167 to 188.
In this regard, the Bank implements the appropriate monitoring tools, which allow it to detect any deterioration in the financial situation of an insurance or reinsurance company and to verify how it is addressed.
Art. 320. The Bank also assesses the adequacy of the methods and practices applied by insurance or reinsurance companies with a view to detecting potential hazards or changes in the economic situation that could have an adverse impact on the overall financial situation of the company concerned.
It assesses the ability of these companies to overcome these potential hazards or changes in the economic situation.
Art. 321. The Bank determines the frequency and extent of the reviews and evaluations referred to in sections 318 to 320 taking into account the size of the insurance or reinsurance companies involved, and the nature, volume and complexity of their activities.
Sub-section II. - Resistance tests
Art. 322. If the Bank considers that the resistance tests conducted pursuant to section 23 of Regulation 1094/2010 do not provide sufficient results, the Bank may submit insurance or reinsurance companies to specific prudential resistance tests taking into account the particularities of the insurance and reinsurance sector in Belgium, for the purpose of facilitating the control and evaluation procedure referred to in sections 318 to 321 as well as the exercise of the control of the group referred to.
Sub-section III. - Careful measures. -
Additional capital requirement
Art. 323. § 1^er. Based on the results of the monitoring and evaluation procedure or resistance tests conducted in accordance with sections 318 to 322, the Bank may impose a specific requirement of capital on an insurance or reinsurance company, in addition to the requirements required by or under this Act or the enforcement measures of Directive 2009/138/EC, to take into account the risks to which this undertaking is or could be exposed.
§ 2. The additional capital requirement in paragraph 1^er may only be imposed in the following exceptional cases:
1° the Bank considers that the risk profile of the insurance or reinsurance company is significantly different from the assumptions that underlie the required solvency capital, calculated using the standard formula in accordance with sections 153 to 166 and
(a)that the requirement to use an internal model under section 173 is inappropriate or that its use has proved ineffective; or
(b) an internal, partial or integral model is being developed in accordance with section 170, but not yet effective;
2° the Bank considers that the risk profile of the insurance or reinsurance company is significantly different from the assumptions that underlie the required solvency capital, calculated using an internal model or a partial internal model in accordance with sections 167 to 188, because certain quantifiable risks are insufficiently considered and that the model has not been better adapted within an appropriate time frame;
3° the Bank considers that the system of governance of the insurance or reinsurance undertaking is significantly different from the standards set out in section 42, that the insurance or reinsurance undertaking is therefore not able to detect, measure, control, manage and adequately report the risks to which it is or could be exposed and that the application of other measures is not, in itself, appropriately correct
4° the insurance or reinsurance company applies the equalizer adjustment referred to in section 129, the volatility correction referred to in section 131 or the transitional measures referred to in sections 668 and 669, and the Bank considers that the risk profile of that undertaking is significantly different from the assumptions underlying these adjustments and corrections and transitional measures.
§ 3. In the cases referred to in paragraph 2, 1°, and 2°, the additional capital requirement is calculated to ensure that the enterprise complies with Article 151, § 3.
In the cases referred to in paragraph 2, 3°, the additional capital requirement is proportionate to the significant risks arising from the deficiencies that have created the Bank's decision to impose it.
In the cases referred to in paragraph 2, 4°, the additional capital requirement is proportionate to the significant risks arising from the deviation of the risk profile.
§ 4. In the cases referred to in paragraph 2, 2° and 3°, the Bank ensures that the insurance or reinsurance company is working to remedy the deficiencies that have justified it to impose an additional capital requirement.
§ 5. The Bank shall review the additional capital requirements imposed under this section at least once a year. It puts an end to it when the company remedied the deficiencies that led to its imposition.
§ 6. Except for the calculation of the margin of risk referred to in Article 127, § 2, where the additional capital requirement has been imposed in the cases referred to in paragraph 2, 3°, the solvency capital required is the amount increased by the additional capital requirement imposed under this section.
Section V. - Information to be provided to IAPO
Art. 324. Without prejudice to section 35 of Regulation 1094/2010, the Bank provides the following information annually to IAPO:
1° the average amount of the additional capital requirements per business and the distribution of the additional capital requirements imposed by the Bank during the previous year, as a percentage of the solvency capital required and according to the following breakdown:
(a) insurance or reinsurance companies;
(b) life insurance companies;
(c) non-life insurance companies;
(d) insurance companies operating in both life and non-life;
(e) reinsurance enterprises;
2° for each of the publications provided for in 1°, of this paragraph, the proportion of additional capital requirements imposed under section 323, § 2, 1°, 2° or 3° respectively;
3° the number of insurance or reinsurance companies that benefit from the limitation to the obligation to give regular information and the number of insurance or reinsurance companies that benefit from the exemption to provide information posted by mail pursuant to sections 313 and 314, as well as their volume of capital requirements, premiums, technical provisions and assets, respectively expressed as a percentage of the total volume of capital requirements, premiums
4° the number of groups that benefit from the limitation to the obligation to give regular information and the number of groups that benefit from the exemption to provide post-post information provided in section 423, as well as their volume of capital requirements, premiums, technical provisions and assets, respectively expressed as a percentage of the total volume of capital requirements, premiums, technical provisions and assets of all groups.
CHAPTER II. - Revisoral control
Section I^re. - Designation and approval of Commissioners
Art. 325. § 1^er. Without prejudice to section 87ter of the Act of 2 August 2002, the duties of commissioner under the Corporate Code shall not be entrusted, in insurance or reinsurance companies, to one or more revisors or to one or more revisor companies approved by the Bank in accordance with section 327.
In insurance or reinsurance companies that are not required to have a commissioner under the said Code, the general assembly of the partners shall appoint one or more revisors or one or more registered revisors as provided for in paragraph 1^er.
They serve as Commissioner. The provisions of the Corporations Code relating to curators of anonymous companies are applicable to the designation and functions of commissioners in these undertakings. For the purposes of the Code of Companies in respect of the above, the General Meeting of Partners replaces the General Meeting of Shareholders in companies where the law does not organize it.
§ 2. Insurance or reinsurance companies may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 326 shall apply to such substitutes.
Art. 326. Authorized reviewers perform the duties of Commissioner under section 325 through a registered reviewer that they designate in accordance with section 132 of the Corporate Code. The provisions of this Act and the decrees made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners and to sanctions, other than criminal, that are applicable to them, are applicable simultaneously to the revisors and approved reviewers representing them.
A registered reviser company may designate an alternate representative from among its eligible members.
Art. 327. The Bank shall, by way of regulation made pursuant to Article 12bis, § 2, of the Act of 22 February 1998, determine the regulation of the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved reviewers represented by their professional organization.
The Institute of Directors of Business shall inform the Bank of the opening of any disciplinary proceedings against a registered reviewer or a registered reviewer company for failure to perform its duties with an insurance or reinsurance company and any disciplinary action taken against a registered reviewer or a registered reviewer company.
Art. 328. The designation of registered commissioners and alternate registered commissioners to insurance or reinsurance companies is subject to the Bank's prior agreement. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of a registered review company, the agreement shall jointly deal with the company and its representative.
The same agreement is required for the renewal of the mandate.
When, under the Act, the appointment of the Commissioner is made by the President of the Trade Tribunal or the Court of Appeal, they make their choice on a list of approved reviewers on which the Bank has agreed.
Art. 329. The Bank may, at any time, revoke, by a decision motivated by reasons for their status or the performance of their duties as a registered reviewer or a registered reviewer corporation, as provided for by or under this Act, the agreement given, pursuant to section 328, to an authorized commissioner, an alternate registered commissioner, a registered reviewer or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a resignment of a registered commissioner, the Bank and the insurance or reinsurance company are previously informed of this resignation, as well as its reasons.
Accreditation rules, for the surplus, the procedure.
In the absence of an alternate registered commissioner or an alternate representative of an approved reviser company, the insurance or reinsurance company or the approved reviser company shall, in accordance with section 328, be replaced within two months.
The proposal to revoke the terms of reference of a registered commissioner in insurance or reinsurance companies, as set out in sections 135 and 136 of the Corporate Code, is subject to the Bank's opinion. This notice is communicated to the General Assembly.
Section II. - Mission of Approved Commissioners
Art. 330. Approved Commissioners referred to in Section I^re shall cooperate with the Bank ' s personal and exclusive control and in accordance with this Section, the rules of the profession and the Bank ' s instructions.
Authorized auditors and certified auditors can perform audits and expertise related to their duties at the foreign branches of the company they control.
Art. 331. Authorized commissioners assess the internal control measures adopted by insurance or reinsurance companies in accordance with Article 42, § 1^er2°, and they communicate their findings in this matter to the Bank.
Art. 332. Authorized Commissioners report to the Bank on the results of the limited review of periodic financial information transmitted by insurance or reinsurance companies to the Bank at the end of the first social semester, confirming that they do not have any facts that it appears that these periodic information has not, in all significant respects, been established in accordance with the requirements provided by or under the law, to the enforcement measures of the Directive 2009
They further confirm that the periodic financial information agreed at the end of the semester is, with respect to the accounting data contained therein, in all significant respects, in accordance with accounting and inventories, in that they are:
1° complete, i.e. they mention all the data in the accounting and the inventories on which they are based,
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
They also confirm that they are not aware of any facts that would appear to be that the periodic financial information agreed at the end of the semester was not prepared, with respect to the accounting data contained therein, by applying the accounting and evaluation rules that presided over the preparation of periodic information relating to the last fiscal year. The Bank may specify which periodic information is concerned.
Art. 333. Authorized commissioners also report to the Bank on the results of the control of periodic financial information transmitted by insurance or reinsurance companies to the Bank at the end of the social year, confirming that such periodic information is, in all significant respects, established in accordance with the requirements provided by or under the law, the enforcement measures of Directive 2009/138/EC and the Bank's instructions.
They further confirm that the periodic financial information agreed at the end of the year is, with respect to the accounting data contained therein, in all significant respects, compliant with accounting and inventories, in that they are:
1° complete, i.e. they mention all the data in the accounting and the inventories on which they are based,
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
They also confirm that the periodic financial information agreed at the end of the fiscal year has been prepared, for the accounting data contained therein, by application of the accounting and valuation rules preside over the preparation of the annual accounts.
The Bank may specify which periodic information is concerned.
Art. 334. The registered commissioners shall, at their request, make special reports to the Bank on the organization, activities and financial structure of the company, reports whose settlement fees are borne by the insurance or reinsurance company in question.
Art. 335. As part of their mission to an insurance or reinsurance company, or a revisoral mission to an insurance or reinsurance company, the registered commissioners report to the Bank as soon as they see decisions, facts or, where applicable, changes:
1° that significantly influence or influence the position of the company from the financial angle or from the angle of its administrative and accounting organization or internal control;
2° that may affect the continuity of the operation of the insurance or reinsurance company;
3° that may result in non-compliance with the solvency capital requirements;
4° that may result in non-compliance with the minimum capital requirements;
5° that may constitute violations of the Code of Companies, the statutes, this Act and the decrees and regulations made for its execution;
6° that are likely to result in the refusal or reservations to the certification of accounts.
Art. 336. Authorized commissioners shall communicate to the management committee of the insurance or reinsurance company or, in the absence of a steering committee, to the persons in charge of the effective management, the reports they send to the Bank in accordance with section 334. These communications are subject to section 306.
They shall transmit to the Bank copies of the communications they address to the management committee of the insurance or reinsurance company or, in the absence of a steering committee, to the persons in charge of the effective management, who deal with matters of interest to the control exercised by the Bank.
Art. 337. No civil, criminal or disciplinary action may be instituted or any professional sanction imposed against registered commissioners who have proceeded in good faith to an information referred to in Article 335.
PART V. - Control of insurance and reinsurance groups
and Supplementary Monitoring of Financial Conglomerates
CHAPTER I^er. - Definitions
Art. 338. Without prejudice to section 15, for the purposes of this Title and the decrees and regulations made for its execution, it shall be understood by:
1° parent company: in addition to a parent company within the meaning of Article 15, 39°, any company that actually exerts, in the opinion of the Bank, a dominant influence on another company;
2° subsidiary company: in addition to a subsidiary company within the meaning of Article 15, 40°, any company on which a parent company actually exerts, in the opinion of the Bank, a dominant influence. Any subsidiary enterprise of a subsidiary enterprise is also considered a subsidiary of the parent company that is at the head of these companies;
3° participation: in addition to participation within the meaning of Article 15, 43°, having directly or indirectly voting rights or capital in another company on which, in the opinion of the Bank, a significant influence is actually exercised;
4° related company: a company that is either a subsidiary company or another company in which an interest is held, or a company with which a consortium is formed within the meaning of Article 10 of the Corporate Code;
5° insurance holding company: a parent company that is not a joint financial company and whose main activity is to acquire and hold stakes in subsidiary companies where these subsidiaries are exclusively or principally insurance or reinsurance companies, or insurance or reinsurance companies of third countries, at least one of these affiliates being an insurance or reinsurance company;
6° joint insurance holding company: a parent company, other than an insurance or reinsurance company, than an insurance or reinsurance company of a third country, an insurance holding company or a joint financial company, which has at least one insurance or reinsurance business;
7° mixed financial company: a parent company, other than a regulated company, which is at the head of a financial conglomerate;
8° regulated company: an insurance or reinsurance company, a credit institution, an investment company, a collective investment management company, a manager of alternative collective investment organizations;
9° financial sector: the sector consisting of one or more of the following companies:
(a) a regulated company having the status of a credit institution, a financial institution within the meaning of Article 3, 41°, of the Act of 25 April 2014, an auxiliary service company within the meaning of Article 164, § 1^er4° of the same law; these companies are all part of the same financial sector called "bank sector";
(b) a regulated company with an insurance or reinsurance status, an insurance holding company; these companies are all part of the same financial sector qualified as the insurance sector;
(c) a regulated company with the status of an investment company, a company that provides auxiliary services within the meaning of section 46, 2°, of the Act of 6 April 1995, a financial institution within the meaning of section 46, 29°, of the same Act; these companies are all part of the same financial sector called "investment services sector".
10° Financial institution: are assimilated to financial institutions within the meaning of section 15, 48°, the postal cheque offices, the managers of OPCA, the management companies of collective investment organizations, the liquidation bodies referred to in section 36/1,14°, of the Act of February 22, 1998 as well as the organizations whose activity is to ensure, in whole or in part, the operational management of services provided by such liquidation bodies.
Art. 339. Without prejudice to sections 15 and 338, for the purposes of Chapter II of this Title and to the decrees and regulations made for its execution, it shall be understood by:
1° Participating company: a company that is either a parent company or another company that holds an interest, or a company with which a consortium is formed within the meaning of Article 10 of the Code of Companies;
2° group: a group of companies,
(a) consists of a participating company, its subsidiaries and entities in which the participating company or its subsidiaries hold an interest, as well as companies that form a consortium within the meaning of Article 10 of the Corporate Code;
(b) be based on the establishment, by contract or in another form, of strong and lasting financial relations between these companies and which may include mutual trustees or associations, provided that:
i. that one of these companies effectively exerts, through centralized coordination, a dominant influence on decisions, including financial decisions, other companies within the group, and
ii. that the establishment and removal of such relationships, for the purposes of this Title, be subject to the prior approval of the group controller,
on the understanding that the centralized coordination undertaking is considered to be the parent company and other companies as subsidiaries;
3° group controller: the control authority responsible for exercising control at the level of the insurance or reinsurance group determined in accordance with section 406;
4° Comptroller's College: a permanent, but flexible structure, of cooperation and coordination between the control authorities of the Member States concerned to facilitate decision-making on the control of a group;
5° control authority concerned: the control authority of a Member State in which a subsidiary company has its head office.
Art. 340. Without prejudice to sections 15 and 338, for the purposes of Chapter III of this Title and the decrees and regulations made for its execution, it is necessary to hear by:
1° group: all the enterprises constituted by the parent company, its subsidiaries, the enterprises in which the parent company or its subsidiaries hold direct or indirect participation, as well as the companies that constitute a consortium and the companies controlled by the latter or in which they hold an interest;
2° Financial conglomerate: a group or subgroup in which at least one of the subsidiaries is a regulated company and that meets the following conditions:
(a) where a regulated business is at the head of the group or subgroup:
i. this company is the parent company of a financial sector company, or a company that holds a stake in a financial sector business, or a company related to a financial sector business in the form of a consortium;
ii. at least one entity in the group or subgroup is an insurance business and at least one entity in the group or subgroup is a banking or investment services business; and
iii. consolidated and/or aggregated activities of entities of the group or subgroup that are part of the insurance sector, and entities of the banking and investment services sector are important within the meaning of Article 452, § 3; or
(b) where there is no regulated business at the head of the group or subgroup:
i. the activities of the group or subgroup are carried out mainly in the financial sector within the meaning of Article 452, § 2;
ii. at least one entity in the group or subgroup is an insurance business and at least one entity in the group or subgroup is a banking or investment services business; and
iii. consolidated and/or aggregated activities of entities of the group or subgroup that are part of the insurance sector, and entities of the banking and investment services sector are important within the meaning of Article 452, § 3;
3° Competent authorities: the national authorities of the Member States authorized under legal or regulatory provisions to monitor regulated enterprises, whether on an individual basis or on a group scale;
4th relevant authorities:
(a) the competent authorities responsible for the control of the sectoral group applicable to regulated companies that are part of a financial conglomerate, and in particular to the parent company at the head of a sector;
(b) the coordinator, if not among the authorities referred to in paragraph (a);
(c) where appropriate, other relevant authorities who, in the opinion of the authorities referred to in (a) and (b), are relevant.
Until the entry into force of technical regulation standards adopted in accordance with Article 21bis, paragraph 1 (b) of Directive 2002/87/EC, the notice referred to in point (c) takes into account in particular the market share held by regulated companies of the financial conglomerate in other Member States, in particular if it exceeds 5%, as well as the importance within the financial conglomerate of any regulated company established in another Member State
5° Coordinator: the competent authority responsible for ensuring the complementary monitoring of conglomerates;
6th Joint Committee: the committee referred to in Article 54 respectively of Regulation (EU) No 1093/2010 of the European Parliament and the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No. 716/2009/EC and repealing Decision 2009/78/EC of the Commission, Regulation (EU) No. 1094/2010 and Regulation (EU) No. 1095/2010 of the European Parliament and of the
7° European Committee of Financial Conglomerates: the committee established by Article 21 of Directive 2002/87/EC;
8° Sectoral regulation: this Act, the Act of April 25, 2014, the Act of April 6, 1995, the Act of August 3, 2012 on certain forms of collective management of investment portfolios, as well as the decrees and regulations made pursuant to these Acts, with the exception of the provisions relating to the complementary supervision of regulated enterprises that are part of a conglomerate; comparable national control regulations and practices in other states;
9° intragroup transactions: transactions carried out directly or indirectly, on a costly or non-cost basis, between regulated companies and other companies that are part of the same financial conglomerate or natural or legal persons related to these enterprises by close links, whether or not these transactions relate to the performance of a contractual obligation;
10° Risk concentration: all positions that have been taken by companies of a financial conglomerate, which are likely to result in losses, which are important enough to compromise the financial situation in general and the solvency in particular of regulated companies that are part of the said financial conglomerate, and that result from the risks of counterparty/credit, investment, insurance, market or other significant risks, or of other significant risks,
11° Sectoral Monitoring of the Group: Monitoring of Regulated Companies under Chapter II of this Title, sections 165 to 184 of the Act of 25 April 2014, section 95 of the Act of 6 April 1995 or section 241 of the Act respecting certain forms of collective management of investment portfolios, as well as monitoring under comparable national control regulations and practices in force in other States;
12° Regulation 342/2014: Delegate Regulation (EU) No 342/2014 of the Commission of 21 January 2014 supplementing Directive 2002/87/EC of the European Parliament and the Council and Regulation (EU) No 575/2013 of the European Parliament and the Council by technical standards of regulation for the application to financial conglomerates of methods of calculating the requirements for the adequacy of the equity.
13° Regulation 2015/2303: Delegated Regulation (EU) 2015/2303 of the Commission of 28 July 2015 supplementing Directive 2002/87/EC of the European Parliament and the Council by technical regulation standards specifying definitions of risk concentration and intragroup transactions and coordinating their complementary monitoring.
Art. 341. For the purpose of group control and complementary monitoring of conglomerates as effective as possible, the Bank may authorize individual exemptions to the provisions of this Title, as well as, where appropriate, the regulations made under Article 12bis, § 2, of the Act of 22 February 1998, provided that they remain in conformity with the relevant provisions in respect of, as the case may be, Directive 2009/138/EC and Directive 2002/87/ In this case, she informs the European Commission.
Art. 342. The Bank may, if applicable by regulation made under Article 12bis, § 2, of the Act of 22 February 1998, specify the practical modalities of group control as provided for in Chapter II of this Title, and the supplementary monitoring of conglomerates as provided for in Chapter III of this Chapter.
CHAPTER II. - Control of insurance or reinsurance companies that are part of an insurance or reinsurance group
Section I^re. - Application cases,
scope and level of group control
Sub-section I^re. - Application of group control
Art. 343. Belgian insurance or reinsurance companies that are part of a group are subject to control at the group level, in accordance with this Chapter, the orders and regulations made for its execution and the enforcement measures of Directive 2009/138/EC.
The group's level control is carried out on Belgian insurance or reinsurance companies:
1° that are a participating company in at least one insurance or reinsurance company in the European Economic Area or a third country, in accordance with Sections I^re to IV of the present Chapter;
2° of which the parent company is an insurance holding company or a joint financial company in the European Economic Area, in accordance with Sections I^re to IV of the present Chapter;
3° of which the parent company is an insurance holding company or a joint financial company of a third country or an insurance or reinsurance company of a third country, in accordance with Section V of this Chapter;
4° whose parent company is a joint insurance holding company in the European Economic Area or a third country, in accordance with Section VI of this Chapter.
Monitoring at the group level does not prejudice the control, on an individual basis, of insurance or reinsurance companies included in the control at the group level, unless otherwise provided by or under this Chapter or by the enforcement measures of Directive 2009/138/EC. However, the Bank may take into account the implications of group-level control in determining the content and terms of control on an individual basis of insurance or reinsurance companies.
Art. 344. In the cases referred to in section 343, paragraph 2, 1°, and 2°, where the participating insurance or reinsurance company, the insurance company or the mixed financial company in the European Economic Area is either a company related to a regulated entity or a joint financial company subject to complementary monitoring in accordance with section 5, § 2, of the Directive 2002/87/EC, or itself a regulated company or a
Art. 345. Any provision of this Chapter that applies to the group level because of the situation of the Belgian legal insurance company also applies to the level of a mixed financial company of Belgian law provided that:
1° the insurance sector is the main sector within the financial conglomerate;
2° one of the subsidiaries at least either an insurance or reinsurance company;
3° the Bank exercises control at the group level as well as the complementary monitoring of the conglomerate.
For the purposes of paragraph 1^erthe importance of the insurance sector is measured in accordance with Article 452, § 3.
For the purposes of this section, the Bank, in its capacity as the Group's controller, works with the relevant supervisory authorities responsible for the control of the subsidiaries and obtains the agreement of the consolidated supervisory authority of the banking and investment services sector.
The Bank, in its capacity as a group controller, informs the EBA and IAPO of decisions made under this section.
Art. 346. Without prejudice to section 347, where an insurance or reinsurance company at the head of a financial conglomerate or where a mixed financial company under Belgian law is subject to equivalent provisions of Chapter II and Chapter III of this Title, in particular in terms of risk-based monitoring, the Bank, as a group controller, may decide to apply to that mixed financial company only the relevant provisions of Chapter III of this Part.
For the purposes of this Article, the Bank, in its capacity as a group controller, works with the relevant supervisory authorities responsible for the control of the subsidiaries and, where applicable, with the consolidated supervisory authority of the banking sector and the investment services sector.
The Bank, in its capacity as a group controller, informs the EBA and IAPO of decisions made under this section.
Art. 347. When an insurance or reinsurance company is part of a financial conglomerate in which the insurance sector is the main sector and on which the Bank exercises control at the group level and the complementary monitoring of the conglomerate, the latter may decide, after consultation with the competent authorities within the meaning of section 340, 3°, that the following measures are applied:
1° in respect of obligations and competencies relating to risk-based control, as described in Articles 383 to 401 and 417 to 424, or parts thereof, the group, as defined in Article 340, 1°, and which constitutes the financial conglomerate, shall, by derogation, be taken into consideration under the relevant scope for the control at the group level;
2° for compliance with sections 459 to 466, group risks arising from intragroup transactions and concentration of risks within the financial conglomerate are treated as an additional risk category. These risks are addressed in a sufficiently specific manner, while respecting the guidelines or standards issued by the European Monitoring Authorities, as well as the quantitative and qualitative measures referred to in the above-mentioned articles;
3° for compliance with section 467, the targeted resistance tests may be integrated at the financial conglomerate level in the resistance tests required on the basis of section 322.
Practical modalities for the application of paragraph 1^er shall be recorded in writing in a coordination regulation with the relevant authorities within the meaning of Article 340, 4°, in the college constituted in the manner required on the basis of Article 474.
The Bank, in its capacity as a group controller, informs the EBA and IAPO of decisions made under paragraph 1^er.
Sub-section II. - Scope of group control
Art. 348. The exercise of the control of the group in accordance with this Chapter does not involve the individual control of the insurance or reinsurance companies of a third country, the insurance holding company, the joint financial company or the joint insurance holding company included in the control at the group level, without prejudice to Section IV of this Chapter with respect to insurance holding companies or mixed financial companies.
Art. 349. § 1^er. The group controller may decide, on a case-by-case basis, not to include a company in the control of the group referred to in section 343:
1° where the company is located in a third country where legal obstacles prevent the transfer of the necessary information without prejudice to Article 371;
2° where the undertaking to be included has a negligible interest in terms of the group control objectives; or
3° where the company's inclusion is inappropriate or could be a source of confusion, with respect to the group control objectives.
When several companies of the same group, considered individually, may be excluded on the basis of paragraph 1^er, 2°, they should be included in the control at the group level as long as, collectively, they have a significant interest.
§ 2. When the Bank, as a group controller, considers that an insurance or reinsurance business should not be included in the group level control by application of paragraph 1^erParagraph 1^er, 2° or 3°, it consults the other control authorities concerned before deciding.
Art. 350. When pursuant to Article 349, § 1^erParagraph 1^er, 2° or 3° or a provision of the law of another Member State ensuring the transfer of Article 214, paragraph 2, paragraph 1^er, point (b) or (c), of Directive 2009/138/EC, an insurance or reinsurance company is not included in the control of the group, the Belgian legal enterprise that is at the head of the group is required to provide to the supervisory authority of the Member State where this undertaking not included in the control of the group is located, any information that the group considers to facilitate the control of the insurance company concerned.
Sub-section III. - Levels
§ 1^er. Mother company superior to the European Economic Area
Art. 351. When the participating insurance or reinsurance company, the insurance holding company or the joint financial company referred to in section 343, paragraph 2, 1°, and 2°, is itself a subsidiary company of another insurance or reinsurance company, another insurance holding company or another joint financial company having its head office in the European Economic Area, the provisions provided by or under Sections II
Art. 352. When the parent insurance or reinsurance company exceeds the level of the European Economic Area, the parent insurance company or the parent joint financial company exceeds the level of the European Economic Area, referred to in Article 351 is a subsidiary enterprise of a company subject to complementary monitoring in accordance with Article 5, § 2, of Directive 2002/87/EC, the group controller, may, after consultation with the other control companies concerned,
§ 2. Superior mother company at the Belgian level
Art. 353. § 1^er. Without prejudice to Articles 351 and 352, where the parent company superior to the level of the European Economic Area referred to in Article 351 does not have its head office in Belgium, the Bank may decide, after consultation with the controller of the group and of that parent company superior to the level of the European Economic Area, to subject the insurance or reinsurance enterprise or holding company 34/1 of insurance or the joint financial company referred to in 138
This insurance or reinsurance company, the insurance holding company or the mixed financial company referred to in paragraph 1^er is described as a parent company superior to the Belgian level.
The Bank explains its decision to the group controller and the parent company superior to the European Economic Area.
§ 2. The Bank is not authorized to apply paragraph 1^er or to maintain a decision pursuant to paragraph 1^er where the parent company superior to the level of the European Economic Area referred to in Article 351 has obtained, in accordance with Articles 237 or 243 of Directive 2009/138/EC, the authorization to subject its subsidiary parent company superior to the Belgian level to Articles 238 and 239 of Directive 2009/138/EC.
Art. 354. § 1^er. When applying section 353, the Bank may limit the group control of the parent company superior to the Belgian level to one or more of subsections I^reII or III of Section II of this Chapter.
§ 2. When the Bank decides to apply the provisions of subsection 1 to the higher parent company at the Belgian level^re of Section II of this Chapter, the choice of method of calculating solvency at the group level, carried out in accordance with Article 220 of Directive 2009/138/EC by the group controller in respect of the parent company superior to the level of the European Economic Area referred to in Article 351, is considered to be determinant and is applied by the Bank.
§ 3. When the Bank decides to apply the provisions of subsection 1 to the higher parent company at the Belgian level^re of Section II of this Chapter and that the parent enterprise above the level of the European Economic Area referred to in Article 351 has obtained, in accordance with Article 231 or 233, paragraph 5, of Directive 2009/138/EC, the authorization to calculate on the basis of an internal model the solvency capital required of the group and the solvency capital required of the insurance or reinsurance enterprises that are part of the group, that
In this case, when the Bank considers that the risk profile of the parent company superior to the Belgian level is significantly different from the internal model approved at the level of the European Economic Area, it may decide to impose on the parent company superior to the Belgian level, as a result of the application of this model and as long as this company does not adequately meet the concerns of the Bank, an additional capital requirement with respect to the solvency capital
The Bank explains the decisions made under paragraph 2 to the group controller and the parent company superior to the Belgian level.
§ 4. When the Bank decides to apply the provisions of subsection 1 to the higher parent company at the Belgian level^re Section II of this Chapter, this undertaking is not authorized to apply, pursuant to section 382, the authorization to subject any of its subsidiaries to sections 384 and 385.
Art. 355. When a control authority informs the Bank, as a group controller, that it has applied section 216, paragraph 1^er or paragraph 4 of Directive 2009/138/EC, the Bank shall inform the College of Controllers in accordance with Article 409, § 1^er.
§ 3. Mother company covering several Member States
Art. 356. § 1^er. In the event of the application of section 353, the Bank may enter into an agreement with the supervisory authorities in the other Member States where there is another senior parent company linked to the national level, with a view to exercising control of the group at the level of a subgroup covering several Member States.
If an agreement is reached pursuant to paragraph 1^er, no control of the group is carried out at the level of the parent companies above the national level in different Member States of the Member State where the subgroup referred to in paragraph 1 is located^er.
§ 2. Bank and supervisory authorities parties to the agreement referred to in paragraph 1^er may agree to limit the control of the group at the subgroup level covering several Member States, to one or more sections of Chapter II of Part III of Directive 2009/138/EC.
When the Bank and the control authorities are parties to the agreement referred to in paragraph 1^er decide to apply sections 218 to 243 of Directive 2009/138/EC, the choice of method of calculation of solvency at the group level, carried out in accordance with Article 220 of Directive 2009/138/EC by the group controller with respect to the parent company superior to the level of the European Economic Area, is considered to be determinant and is applied by the Bank and the control authorities parties to the agreement referred to in paragraph 1^er.
When the Bank and the control authorities are parties to the agreement referred to in paragraph 1^er decide to apply Articles 218 to 243 of Directive 2009/138/EC, and that the parent company superior to the level of the European Economic Area has obtained, in accordance with Article 231 or 233, paragraph 5, of Directive 2009/138/EC, the authorization to calculate on the basis of an internal model the solvency capital required of the group and the solvency capital required of the insurance or reinsurance companies^er.
In the case referred to in paragraph 3, where the Bank and the control authorities are parties to the agreement referred to in paragraph 1^er consider that the risk profile of the subgroup covering several Member States differ significantly from the internal model approved at the European Economic Area level, they may decide to impose on the subgroup covering several Member States, as a result of the application of this model and as long as this subgroup fails to adequately address the concerns of the Bank and supervisory authorities parties to the agreement referred to in paragraph 1^eran additional capital requirement with respect to the required solvency capital of the subgroup covering several Member States or, in exceptional circumstances, where this additional capital requirement would be inappropriate, require this subgroup covering several Member States to calculate the solvency capital required of the subgroup on the basis of the standard formula.
The Bank explains the decisions made under paragraph 4 to the group controller and the parent company superior to the European Economic Area.
§ 3. The Bank and the supervisory authorities that are parties to the agreement concluded under this Article shall set out the agreement to the controller of the group and to the parent company superior to the European Economic Area.
§ 4. The agreement referred to in this Article shall not apply to a parent company superior to the Belgian level or to another national level that is subject to sections 238 and 239 of Directive 2009/138/EC pursuant to sections 237 or 243 of Directive 2009/138/EC.
Art. 357. When a supervisory authority informs the Bank, in its capacity as a group controller, that it has applied section 217, paragraph 1^er, or article 217, paragraph 2 juncto article 216, paragraph 4, paragraph 2 of Directive 2009/138/EC, the Bank shall inform the College of Controllers in accordance with Article 409, § 1^er.
Section II. - Group control areas
Sub-section I^re. - Group solvency
§ 1^er. General provisions
Art. 358. § 1^er. The solvency control of the group is exercised in accordance with this section, as well as Sub-Section III of this Section.
§ 2. In the case referred to in section 343, paragraph 2, 1°, the participating insurance or reinsurance company shall ensure that the group has at all times an amount of eligible equity not less than the solvency capital required of the group calculated in accordance with sections 361 to 380.
In the case referred to in section 343, paragraph 2, 2°, the insurance or reinsurance undertaking that is part of the group shall ensure that the group has at all times an amount of eligible equity not less than the solvency capital required of the group calculated in accordance with section 381.
The requirements referred to in this paragraph shall be subject to the prudential control of the group controller in accordance with Section III of this Chapter.
§ 3. The participating insurance or reinsurance company in the case referred to in section 343, paragraph 2, 1°, and, where the group is not directed by an insurance or reinsurance company, the insurance holding company or the mixed financial company in the case referred to in section 343, paragraph 2, 2°, shall establish procedures for detecting a deterioration of the requirements referred to in paragraph 1^er and paragraph 2, and immediately inform the group controller when such deterioration occurs.
As soon as it finds that the group's required solvency capital is no longer reached, or that it may no longer be achieved within the next three months, the undertaking referred to in paragraph 1^er immediately informs the controller of the group.
Within two months of the observation referred to in paragraph 2, or of the notification by the controller of the group that it made such a finding, the undertaking referred to in paragraph 1^er submit to the group controller for approval a realistic recovery strategy to restore the group's required solvency capital within a period not exceeding six months. The group controller may, if he considers it necessary and after consultation with the relevant control authorities, extend this three-month period. Article 510, §§ 2, and 3 is applicable by analogy.
Art. 359. When the Bank, in its capacity as a group controller, is informed that the solvency capital required of the group is no longer reached, or that it may no longer be achieved within the next three months, it informs the control authorities concerned within the Comptroller's College, which analyzes the situation of the group.
Art. 360. § 1^er. The participating insurance or reinsurance company or, where the group is not directed by an insurance or reinsurance company, the insurance holding company or the mixed financial company shall make at least once a year the calculations referred to in section 358, § 2.
The data required for this calculation and the results obtained are provided to the group controller, by the participating insurance or reinsurance company or, where the group is not led by an insurance or reinsurance company, by the insurance company, by the mixed financial company or by the insurance or reinsurance company of the group designated for that purpose by the group controller after consultation with the control authorities concerned and the group itself.
§ 2. The insurance or reinsurance company, or, where the group is not run by an insurance or reinsurance company, the insurance holding company or the joint financial company shall monitor the amount of the solvency capital required of the group on a continuous basis. When the group's risk profile significantly deviates from the assumptions underlying the last solvency capital required to be notified by the group, this capital is recalculated without delay and notified to the group controller.
When elements appear to indicate that the group's risk profile has significantly changed since the date of the last notification of the group's required solvency capital, the group controller may require that this capital be recalculated.
§ 2. Group solvency calculation method and general principles
Art. 361. The calculation of solvency at the group level of a participating insurance or reinsurance company is carried out in accordance with the technical principles set out in sections 362 to 371 and the first method of calculation defined in sections 372 to 376 and the enforcement measures of Directive 2009/138/EC.
Derogation from paragraph 1^er, the group controller, may decide, after consultation with the control authorities concerned and the group itself, to apply to this group the second calculation method defined in sections 377 to 380 and the enforcement measures of Directive 2009/138/EC, or a combination of the first and second calculation methods, if the exclusive application of the first method is inappropriate.
Art. 362. § 1^er. The calculation of the solvency of a participating insurance or reinsurance group takes into account the proportional share held by the participating company in its related businesses.
For the purposes of paragraph 1^erthe proportional share corresponds:
1° where the first method of calculating the solvency of the group is used, the percentages retained for the preparation of the consolidated accounts; or
2° where the second method of calculating the solvency of the group is used, to the fraction of the capital that is owned, directly or indirectly, by the participating enterprise.
However, regardless of the method of calculating solvency of the group used, when the related company is a subsidiary company that does not have sufficient eligible equity to cover its required solvency capital, the entire solvency deficit of the subsidiary must be taken into account.
By derogation from paragraph 3, the group controller may authorize consideration of the subsidiary's solvency deficit on a proportional basis if it considers, after consultation with the relevant control authorities, that the liability of the parent company holding a share of capital is limited strictly to that share of capital.
§ 2. The group controller shall determine, after consultation with the control authorities concerned and the group itself, the proportional share to be taken into account in the following cases:
1° where there is no capital link between some of the companies belonging to a group;
2° where the Bank or another supervisory authority has established that holding, directly or indirectly, voting or capital rights in a business is assimilable to participation as it considers that a significant influence is actually exercised on that business;
3° where the Bank or another supervisory authority has established that a company is the parent company of another company, as it considers that the first company actually exerts a dominant influence on the second.
Art. 363. § 1^er. The dual use of eligible equity in respect of the solvency capital required of the various insurance or reinsurance companies taken into account in calculating the solvency of the group of a participating insurance or reinsurance company is prohibited.
For this purpose, when calculating the solvency of the group, if the calculation methods defined in sections 372 to 380 and the enforcement measures of Directive 2009/138/EC do not provide, the following amounts are excluded:
1° the value of any assets of the participating insurance or reinsurance undertaking that corresponds to the financing of eligible equity covering the required solvency capital of one of its related insurance or reinsurance companies;
2° the value of any assets of an insurance or reinsurance company related to the participating insurance or reinsurance undertaking that corresponds to the financing of eligible equity covering the required solvency capital of that participating insurance or reinsurance undertaking;
3° the value of any assets of an insurance or reinsurance company related to the participating insurance or reinsurance undertaking that corresponds to the financing of eligible equity covering the required solvency capital of any other related insurance or reinsurance company of that participating insurance or reinsurance undertaking.
§ 2. Without prejudice to paragraph 1^er, the following elements may be taken into account in calculating the solvency of the group as they are eligible to cover the solvency capital required of the related company concerned:
1° the excess funds under section 145, paragraph 2, of a life insurance or related reinsurance enterprise of the participating insurance or reinsurance company for which the solvency of the group is calculated;
2° the portions that are subscribed but not paid from the capital of a related insurance or reinsurance enterprise of the participating insurance or reinsurance company for which the solvency of the group is calculated.
However, the following elements must in all cases be excluded from the solvency calculation of the group:
1° the portions of the capital that are subscribed but unpaid that represent a potential obligation of the participating enterprise;
2° the portions of the participating insurance or reinsurance corporation that are a potential liability for a related insurance or reinsurance business;
3° the portions that are subscribed but not paid from the capital of a related insurance or reinsurance company that represent a potential obligation to another related insurance or reinsurance company of the same participating insurance or reinsurance company.
§ 3. Where, the Bank or another control authority considers that certain eligible equity funds to cover the required solvency capital of a related insurance or reinsurance undertaking, other than those referred to in paragraph 2, cannot be effectively made available to cover the required solvency capital of the participating insurance or reinsurance undertaking for which the solvency of the group is calculated, these equity funds may be included in the calculation only to the extent
§ 4. The sum of the equity referred to in paragraphs 2 and 3 may not exceed the solvency capital required of the related insurance or reinsurance undertaking.
§ 5. The eligible equity of an insurance or reinsurance company related to the participating insurance or reinsurance company for which the solvency of the group is calculated, when subjected to the prior approval, as the case may be, of the Bank, in accordance with Article 143, or of another control authority in accordance with Article 90 of Directive 2009/138/EC, may only be included in the calculation
Art. 364. In calculating the solvency of the group of a participating insurance or reinsurance company, no eligible equity element is taken into account to cover the required solvency capital that would arise from reciprocal financing between the participating insurance or reinsurance company and:
1° a related company;
2° a participating company;
3° another company related to any of its participating companies.
In calculating the solvency of the group, no eligible equity elements are taken into account to cover the required solvency capital of an insurance or reinsurance company related to the participating insurance or reinsurance company for which the solvency of the group is calculated when the element in question comes from mutual financing with another company related to that participating insurance or reinsurance company.
Reciprocal financing is deemed to exist at least when an insurance or reinsurance company, or any of its related businesses, holds shares in another business that, directly or indirectly, holds eligible equity in the first business, or when it grants loans to that other business.
Art. 365. Assets and liabilities are assessed in accordance with section 123.
§ 3. Application of Group solvency calculation methods
Art. 366. When several insurance or reinsurance companies are related to the participating insurance or reinsurance company, each of them shall be taken into account in calculating the solvency of the participating insurance or reinsurance group.
Where the insurance or reinsurance company related to its head office in a Member State other than Belgium, the calculation of the solvency of the participating insurance or reinsurance group shall take into account, with respect to that related enterprise, the solvency capital required and the equity eligible to cover it, as defined in that other Member State.
Art. 367. § 1^er. For the calculation of the solvency of the group of the participating insurance or reinsurance undertaking that holds, through an insurance holding company or a joint financial company, an interest in a related insurance or reinsurance company or in an insurance or reinsurance company of a third country, the situation of that insurance holding company or of that mixed financial company is taken into account.
For the purposes of this calculation, the intermediate insurance holding company or the intermediate joint financial company shall be treated as an insurance or reinsurance company subject to the rules set out in sections 151 to 188 with respect to the solvency capital required, and the same conditions as those set out in sections 140 to 150 with respect to eligible equity to cover the solvency capital required.
§ 2. In the case referred to in paragraph 1^erif the intermediate insurance holding company or the intermediate joint financial company holds subordinate claims or other eligible equity subject to the limits set out in section 150, the latter shall be considered as eligible funds up to the amounts resulting from the application of the limits set out in section 150 to the total stock of the group-specific funds reported to the solvency capital required at the group level.
The eligible equity of an intermediate insurance holding company or an intermediate joint financial company, which would require the prior approval of the Bank in accordance with section 143, or another control authority in accordance with section 90 of Directive 2009/138/EC if held by an insurance or reinsurance company, may only be taken into account in the calculation of the solvency of the group to the extent that they were duly approved
Art. 368. § 1^er. For the calculation, pursuant to sections 377 to 380, of the solvency of the group of a participating insurance or reinsurance company of an insurance or reinsurance company of a third country, the latter is treated, for the sole purpose of this calculation, as a related insurance or reinsurance company.
However, where the third country in which the company has its head office submits it to an accreditation regime and imposes a solvency regime at least equivalent to that established by articles 75 to 135 of Directive 2009/138/EC, the calculation of the solvency of the group shall take into account, with respect to that undertaking, the solvency capital required and the equity eligible to cover it as defined by the third country concerned.
§ 2. If the European Commission has not adopted a delegated act pursuant to Article 227, paragraph 4 or paragraph 5, of Directive 2009/138/EC, recognizing the equivalence of the solvency regime of a third country to that established by Directive 2009/138/EC, the group controller shall verify, at the request of the participating company or its own initiative, whether the third country regime is at least equivalent.
To do so, the controller of the group, assisted by the ISOPA, consults the authorities concerned, before deciding on equivalence. The decision is based on the criteria adopted under Article 227, paragraph 3, of Directive 2009/138/EC.
The Comptroller of the Group shall not make a decision in respect of a third country that contradicts a previous decision in respect of that third country unless there is a need to take into account the significant changes made to the control regime established by sections 75 to 135 of Directive 2009/138/EC and to the control regime of the third country.
§ 3. When the European Commission has adopted, pursuant to Article 227, paragraph 5, of Directive 2009/138/EC, a delegated act determining that the control regime of a third country is provisionally equivalent, that third country is deemed equivalent for the purposes of paragraph 1^erParagraph 2.
Art. 369. If the Bank disagrees with the decision taken under section 227, paragraph 2, of Directive 2009/128/EC, the Bank may, within three months from the notification of the Group Controller's decision, file with the CIPOA and request its assistance in accordance with section 19 of Regulation No. 1094/2010.
Art. 370. For the calculation of the solvency of the group of a participating insurance or reinsurance company of a credit institution, investment company or financial institution, the participating insurance or reinsurance company may apply mutatis mutandis method 1 or method 2 set out in Appendix V.
However, method No. 1 described in this Annex can only be applied provided that the controller of the group has signed its agreement on the basis of the satisfactory level of integrated management and internal control of the consolidation entities. The chosen method is applied consistently in time.
The group controller may, at the request of the participating undertaking or its own initiative, deduct any participation referred to in paragraph 1^er equity eligible to cover the solvency of the participating company group.
Art. 371. Where, as the case may be, the Bank or another control authority does not have the information relating to a related business, necessary for the calculation of the solvency of the group of a participating insurance or reinsurance company, the carrying value of that undertaking in the participating insurance or reinsurance company is deducted from the equity eligible to cover the solvency of the group.
In this case, no latent surplus value associated with this participation is considered to be an element of eligible equity to cover the solvency of the group.
§ 4 - Method of calculating solvency of the group based on accounting consolidation
Art. 372. The calculation of the solvency of the group of the participating insurance or reinsurance based on the calculation method based on accounting consolidation, or "first method of calculating the solvency of the group", is carried out on the basis of the consolidated accounts.
The solvency of the participating insurance or reinsurance group is equal to the difference between:
1° eligible equity to cover the required solvency capital, calculated on the consolidated database; and
2° the solvency capital required at the group level, calculated on the consolidated database.
The rules set out in sections 140 to 150 and sections 151 to 188 apply, respectively, to the calculation of eligible funds to cover the required solvency capital and to the calculation of the solvency capital required at the group level on the consolidated database.
Art. 373. The solvency capital required at the level of the group of the participating insurance or reinsurance based on consolidated data, or "property capital required of the group on a consolidated basis", is calculated on the basis of the standard formula or an approved internal model. This calculation shall be consistent with the general principles set out in Articles 151 and 152 and Articles 153 to 166 in the case of the use of the standard formula, or sections 167 to 188 in the case of an internal model, as well as with the enforcement measures of Directive 2009/138/EC.
The solvency capital required of the group on a consolidated basis is at least equal to the sum:
1° of the minimum capital required under section 189 of the participating insurance or reinsurance undertaking; and
2° the proportional share of the minimum required capital of related insurance and reinsurance companies.
This minimum shall be covered by the eligible base funds established by Article 150 § 4.
In order to determine whether these eligible equity funds provide coverage of the minimum required solvency capital of the group on a consolidated basis, the principles set out in paragraphs 2 and 3 of this Sub-section are applicable by analogy. Section 511 is applicable by analogy.
Art. 374. § 1^er. In the event that a participating insurance or reinsurance company and its related companies, or all related companies of an insurance holding company or a joint financial company, require the authorization to calculate, on the basis of an internal model, the solvency capital required of the group on a consolidated basis and the solvency capital required of the insurance or reinsurance companies to decide the group, the Bank shall cooperate with the control authorities concerned.
The application referred to in paragraph 1^er is addressed to the group controller.
The Comptroller of the Group shall promptly inform the relevant supervisory authorities and shall transmit the full application to them.
The Bank is doing everything in its power to reach a joint decision on the application with the relevant supervisory authorities within six months of receipt of the full application by the group controller. The group controller provides the applicant with a document detailing all the reasons for this joint decision.
§ 2. Without prejudice to paragraph 3, if a joint decision is not adopted within six months of the receipt by the Comptroller of the complete application group, the Comptroller of the group shall decide on the application itself.
The group controller shall take due account of the opinion and reservations expressed by the relevant supervisory authorities within six months.
The Comptroller of the Group shall transmit to the applicant and the relevant supervisory authorities a document specifying the complete motivation of the decision.
This decision is considered determinant and is implemented by the relevant supervisory authorities.
§ 3. During the six-month period referred to in paragraph 1^er, paragraph 4, and as long as a joint decision has not been made, the Bank may refer to IAPO in accordance with Regulation No. 1094/2010, section 19.
The controller of the group differs its decision pending a possible decision of the IAOPA arrested in accordance with section 19, paragraph 3, of the said Regulations and determines its own decision in accordance with the decision of the IAOPA. This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
The IAPO makes its decision within one month.
If, pursuant to Article 41, paragraphs 2 and 3, and Article 44, paragraph 1^er, paragraph 3 of Regulation No. 1094/2010, the decision proposed by the expert group is rejected, the group controller makes a final decision. This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned. The period of six months is the period of conciliation within the meaning of Article 19, § 2, of the said Regulation.
Art. 375. In the event of the application of section 374, where the Bank considers that the risk profile of an insurance or reinsurance company that it is responsible for controlling significantly deviates from the assumptions that underlie the approved internal model at the level of the participating insurance or reinsurance company group, it may impose on that company, in accordance with section 323 and as long as the company fails to meet the requirements
In exceptional circumstances, where the additional capital requirement referred to in paragraph 1^er would be inappropriate, the Bank may require the company concerned to calculate its solvency capital required on the basis of the standard formula referred to in sections 151 to 166. In accordance with section 323, § 2, the Bank may impose an additional capital requirement in addition to the solvency capital required of this insurance or reinsurance company resulting from the application of the standard formula.
The Bank shall explain any decision referred to in paragraph 1^er and 2 to the insurance or reinsurance company and other members of the Comptroller's College.
Art. 376. To determine whether the solvency capital of the group of the participating insurance or reinsurance undertaking, required on a consolidated basis, appropriately reflects the group's risk profile, the Bank, in its capacity as the group's controller, pays particular attention to any situation where the circumstances referred to in section 323, § 2, are likely to arise at the group level and, in particular, to cases where:
1° a specific risk existing at the group level would not be, because it is difficult to quantify, taken into account by the standard formula or the internal model used;
2° an additional capital requirement in addition to their required solvency capital is imposed on insurance or reinsurance companies bound by, as the case may be, the Bank or another control authority in accordance with, respectively, Article 323 or 374, or Article 37 of Directive 2009/138/EC.
When the group's risk profile is not sufficiently taken into account, an additional capital requirement in addition to the solvency capital required of the group on a consolidated basis may be imposed.
Section 323 and the enforcement measures of Directive 2009/138/EC are applicable by analogy.
§ 5. Method of calculating solvency of the group based on deduction and aggregation
Art. 377. § 1^er. In case of application of the calculation method based on deduction and aggregation, or "second method for calculating the solvency of the group", the solvency of the group of the participating insurance or reinsurance company, is equal to the difference between:
1° the eligible funds of the group on an aggregate basis, as defined in paragraph 2, and
2° the sum of the value of insurance or reinsurance companies related to the participating insurance or reinsurance company and the solvency capital required of the group on an aggregate basis as defined in paragraph 3.
§ 2. The group's own eligible funds on an aggregate basis correspond to the sum:
1° of eligible equity to cover the required solvency capital of the participating insurance or reinsurance undertaking; and
2° of the proportional share of the participating insurance or reinsurance company in eligible equity funds to cover the required solvency capital of related insurance or reinsurance companies.
§ 3. The solvency capital required of the group on an aggregate basis corresponds to the sum:
1° of the required solvency capital of the participating insurance or reinsurance undertaking; and
2° of the proportional share of the required solvency capital of related insurance or reinsurance companies.
Art. 378. When the participation in the related insurance or reinsurance companies corresponds, in whole or in part, to an indirect property, the value in the participating insurance or reinsurance enterprise of the related insurance or reinsurance companies incorporates the value of this indirect property, taking into account the successive interest relevant, and the elements referred to in Article 377, § 2, 2°, and § 3, 2°, shall include the corresponding proportional shares,
Art. 379. In the event that an insurance or reinsurance company and its related companies, or all related companies of an insurance holding company or a joint financial company, apply for authorization to calculate the solvency capital required of the insurance or reinsurance companies of the group on the basis of an internal model, sections 374 and 375 are applicable by analogy.
Art. 380. To determine whether the solvency capital required of the group of the participating insurance or reinsurance company on an aggregate basis, calculated in accordance with Article 377, § 3, adequately reflects the group's risk profile, the Bank and the relevant control authorities pay particular attention to the specific risks existing at the group level that, because they are difficultly quantifiable, would not be sufficiently taken into account.
When the group's risk profile significantly deviates from the assumptions underlying the solvency capital required of the group on an aggregate basis, an additional capital requirement in addition to the solvency capital required of the group on an aggregate basis may be imposed.
Section 323 and the enforcement measures of Directive 2009/138/EC are applicable by analogy.
§ 6. Calculation of Group solvency for subsidiary insurance or reinsurance companies of an insurance holding company or a joint financial company
Art. 381. Where the insurance or reinsurance company is the subsidiary of an insurance holding company or a joint financial company, the solvency of the group shall be calculated at the level of the insurance holding company or the joint financial company in accordance with the provisions of this Sub-section and the enforcement measures of Directive 2009/138/EC.
For the purposes of the calculation referred to in paragraph 1^er, the parent company is treated as an insurance or reinsurance company subject to the rules set out in sections 151 to 188 with respect to the solvency capital required, and the same conditions as those set out in sections 140 to 150 with respect to eligible equity to cover the solvency capital required.
§ 7. Calculation of solvency of centralized risk management groups
Art. 382. Sections 384 and 385 apply to any insurance or reinsurance company that is the subsidiary of an insurance or reinsurance company or is the subsidiary of an insurance holding company or a joint financial company, where all of the following conditions are met:
1° the subsidiary, in respect of which the controller of the group has not made the decision referred to in section 349, is included in the control at the level of the group carried out by that controller at the level of the parent company in accordance with Title III of Directive 2009/138/EC;
2° the risk management procedures and the internal control mechanisms of the parent company cover the subsidiary and the Bank is satisfied with the prudent management of the subsidiary insurance or reinsurance company by the parent company;
3° the parent company received the agreement referred to in section 397;
4° the parent company received the agreement referred to in section 405;
5° the parent company requested authorization to be subject to sections 384 and 385 and its application was the subject of a favourable decision in accordance with the procedure provided for in section 383.
Art. 383. § 1^er. In the event of an application for authorization to subject an insurance or subsidiary reinsurance company of an insurance or reinsurance company or subsidiary of an insurance or reinsurance company, to the rules set out in sections 384 and 385, the Bank shall work within the Comptroller's College, in full consultation with the control authorities concerned, to determine whether or not it is appropriate to grant the authorization required
The application referred to in paragraph 1^er is addressed to the Bank. She informs the supervisory authorities within the Comptroller's College and communicates the full application to them without delay.
§ 2. The Bank does everything in its power to reach a joint decision on the application with the supervisory authorities in the Comptroller's College within three months of the receipt of the full application by the supervisory authorities in the Comptroller's College.
When the Bank and the relevant control authorities have reached the joint decision referred to in paragraph 1^er, the Bank provides the applicant with the decision specifying all motivations. This joint decision is considered to be determinant and is implemented by the Bank and the relevant supervisory authorities.
§ 3. Without prejudice to paragraph 4, in the absence of a joint decision within three months of the receipt of the full application by the supervisory authorities within the Comptroller's College, the Comptroller of the Group himself decides on the application.
The group controller duly takes into account the opinion and reservations expressed by the Bank and the supervisory authorities of the Member States in which a subsidiary at its head office, as well as the reservations expressed by the other supervisory authorities within the Comptroller's College.
The decision is duly motivated and contains an explanation of any significant discrepancy with respect to the reservations expressed by the Bank or the supervisory authorities. The group controller shall transmit a copy of the decision to the Bank and the relevant control authorities. The decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
§ 4. During the three-month period referred to in paragraph 2, and as long as a joint decision has not been made, the Bank may refer to IAPO pursuant to section 19 of Regulation No. 1094/2010.
The controller of the group differs its decision pending a possible decision of the IAOPA arrested in accordance with section 19, paragraph 3, of the said Regulations and determines its own decision in accordance with the decision of the IAOPA. This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
The IAPO makes its decision within one month.
If, pursuant to Article 41, paragraphs 2 and 3, and Article 44, paragraph 1^er, paragraph 3, of Regulation No. 1094/2010, the decision proposed by the expert group is rejected, the group controller makes a final decision. This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned. The period of three months is the period of conciliation within the meaning of Article 19, § 2, of the said Regulation.
Art. 384. § 1^er. Without prejudice to sections 374 and 375, the required solvency capital of the subsidiary insurance or reinsurance undertaking that is the subject of the authorization referred to in section 383, is calculated in accordance with this section.
§ 2. Where the required solvency capital of the subsidiary insurance or reinsurance undertaking referred to in subsection 1^er is calculated on the basis of an internal model approved at the group level in accordance with sections 374 and 375 and that the Bank considers that the risk profile of that undertaking that it is responsible for controlling significantly departs from that model, it may, in the cases referred to in section 323 and as long as that undertaking fails to meet the concerns of the Bank, propose to establish an additional subsidiary capital requirement in addition to the capital of
The Bank discusses its proposal within the Comptroller's College and communicates the reasons to the subsidiary insurance or reinsurance company and the Comptroller's College.
§ 3. Where the required solvency capital of the subsidiary insurance or reinsurance undertaking referred to in subsection 1^er is calculated on the basis of the standard formula referred to in sections 151 to 166 and that the Bank considers that its risk profile significantly deviates from the assumptions that underlie this formula, it may, in exceptional circumstances and as long as the company fails to satisfy the concerns of the Bank, propose that the company replace a subset of parameters used in the calculation according to the standard formula by parameters specific to that company when calculating the
The Bank discusses its proposal within the Comptroller's College and communicates the reasons to the subsidiary insurance or reinsurance company and the Comptroller's College.
§ 4. The Bank does everything in its power to reach agreement with the supervisory authorities in the Comptroller College on the proposal it has made in accordance with paragraph 1^er or 2, or other possible measures.
This agreement is considered to be a determinant and is implemented by the Bank and the supervisory authorities concerned.
§ 5. For a period of one month from the formulation of the proposal referred to in paragraph 1^er or 2, and as long as an agreement has not been reached within the Comptroller's College, the Bank may, in the event of disagreement with the Comptroller of the Group, file with the IPOA and request its assistance in accordance with Regulation No. 1094/2010, section 19. The IAOA will decide within one month of this referral. The period of one month is the period of conciliation within the meaning of Article 19, paragraph 2, of Regulation No. 1094/2010.
The Bank differs its decision pending a possible decision of the IAOPA arrested pursuant to Regulation No. 1094/2010, and decides its own decision in accordance with that decision of the IAOPA.
This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
The decision is duly motivated and transmitted to the subsidiary insurance or reinsurance company and to the controller college.
Art. 385. § 1^er. In the event of non-compliance with the required solvency capital of a subsidiary insurance or reinsurance undertaking that is subject to the authorization referred to in section 383 and without prejudice to section 510, the Bank shall promptly communicate to the Comptroller's College the recovery strategy submitted by the subsidiary for, within six months after the determination of its non-compliance with the required solvency capital, to restore the level of return
The Bank does everything in its power to reach an agreement with the supervisory authorities in the Comptroller's College on the proposal it has made regarding the approval of the recovery strategy, within four months of the first finding of non-compliance with the required solvency capital.
Without prejudice to paragraph 4, in the absence of such an agreement, the Bank decides whether the recovery strategy should be approved, taking due account of the opinion and reservations expressed by the supervisory authorities within the Comptroller's College.
During the four-month period referred to in paragraph 2, and as long as an agreement has not been reached within the Comptroller's College, in the event of disagreement with the Comptroller of the Group on the approval of the Recovery Strategy, including an extension of the recovery period, the Bank may refer to IAPO and request assistance in accordance with section 19 of Regulation No. 1094/2010. The IAOA will decide within one month of this referral. The four-month period is the conciliation period within the meaning of Article 19, paragraph 2, of Regulation No. 1094/2010.
The Bank differs its decision pending a possible decision of the IAOPA arrested pursuant to Regulation No. 1094/2010, and decides its own decision in accordance with that decision of the IAOPA.
This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
The decision is duly motivated and transmitted to the subsidiary insurance or reinsurance company and to the controller college.
§ 2. If the Bank detects a deterioration in financial conditions in a subsidiary insurance or reinsurance business referred to in subsection 1^er, pursuant to section 510, it shall promptly notify the College of Controllers of the measures it proposes to take. Except in emergency situations, the actions to be taken are discussed in the Comptroller College.
The Bank does everything in its power to reach an agreement with the supervisory authorities in the Comptroller's College on the measures it has proposed, within one month of the notification.
Without prejudice to paragraph 4, in the absence of such an agreement, the Bank decides whether the proposed measures should be approved, taking due account of the opinion and reservations expressed by the supervisory authorities within the Comptroller's College.
Except for emergencies, during the one-month period referred to in paragraph 2, and as long as an agreement has not been reached within the Comptroller's College, in the event of disagreement with the Comptroller of the Group on the approval of the proposed measures under paragraph 1^er, the Bank may refer to IAPO and seek assistance in accordance with Regulation No. 1094/2010, section 19. The IAOA will decide within one month of this referral. The period of one month is the conciliation period within the meaning of Article 19, paragraph 2, of Regulation No. 1094/2010.
The Bank differs its decision pending a possible decision of the IAOPA arrested pursuant to Regulation No. 1094/2010, and decides its own decision in accordance with that decision of the IAOPA.
This decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
The decision is duly motivated and transmitted to the subsidiary insurance or reinsurance company and to the controller college.
§ 3. In case of non-compliance with the minimum required capital of an insurance or subsidiary reinsurance business referred to in subsection 1^er and without prejudice to section 511, the Bank shall promptly communicate to the Comptroller's College the short-term financing plan submitted by the subsidiary insurance or reinsurance company for, within three months of the first finding of its non-compliance with the minimum required capital, to restore the level of eligible equity to achieve the minimum required capital or to reduce its risk profile in order to ensure its compliance with the minimum required capital. The Comptroller College is also kept informed of any measures taken to enforce the minimum capital required at the subsidiary level.
Art. 386. In accordance with Article 239, paragraph 4 of Directive 2009/138/EC, the Bank, in its capacity as a group controller, may, in the event of disagreement on the points referred to in Article 239, paragraph 4, paragraph 1^er, of Directive 2009/138/EC with the control authority of a subsidiary insurance or reinsurance company having its head office in another Member State and which is subject to the authorization referred to in Article 237 of Directive 2009/138/EC, to refer the IPOA and to request its assistance pursuant to Article 19 of Regulation No. 1094/2010.
Art. 387. § 1^er. The rules set out in sections 384 and 385 cease to apply in the following cases:
1° the condition referred to in section 382, 1°, is no longer respected;
2° the condition referred to in section 382, 2° is no longer respected and the group does not re-establish compliance with this condition within an appropriate time frame;
3° the conditions referred to in article 382, 3° and 4° are no longer respected.
In the case referred to in paragraph 1^er, 1°, when the controller of the group decides, after consulting the college of controllers, to no longer include the subsidiary in the control of the group it performs, it immediately informs the Bank and the parent company.
For the purposes of section 382, 2°, 3° and 4°, the parent company has the responsibility to ensure that the conditions are met continuously. If this is not the case, the parent company shall promptly inform the group controller and the Bank. The parent company submits a plan to restore compliance within an appropriate timeframe.
Without prejudice to paragraph 3, the group controller shall verify at least once a year on its own initiative that the conditions referred to in section 382, 2°, 3° and 4° shall continue to be met. The group controller also conducts this audit at the request of the Bank, where the Bank has serious doubts about the permanent compliance with these conditions.
When the audit shows deficiencies, the group controller requires the parent company to submit a plan to restore compliance within an appropriate timeframe.
When, after consulting the Comptroller's College, the Comptroller of the Group considers that the plan referred to in paragraph 3 or paragraph 5 is insufficient or, subsequently, is not implemented within the agreed time limit, it concludes that the conditions referred to in section 382, 2°, 3° and 4° are no longer complied with and informs the Bank without delay.
§ 2. The plan under sections 384 and 385 applies again when the parent company submits a new application and obtains a favourable decision in accordance with the procedure provided for in section 382.
Sub-Section II. - Risk concentration and intragroup transactions
§ 1^er. Risk concentration
Art. 388. § 1^er. The control of the risk concentration at the level of the insurance or reinsurance group shall be exercised in accordance with this section and section 389 and Sub-Section III of this Section.
§ 2. Insurance or reinsurance companies, insurance holding companies and mixed financial companies regularly report, and at least annually, to the group controller any significant risk concentration at the group level, unless section 352 applies.
The necessary information is submitted to the group controller by the participating insurance or reinsurance company or, where the group is not directed by an insurance or reinsurance company, by the insurance holding company, by the mixed financial company or by the insurance or reinsurance company of the group designated for that purpose by the group controller after consultation with the control authorities concerned and the group.
Risk concentrations referred to in paragraph 1^er are subject to the prudential control of the group controller in accordance with Section III of this Chapter.
Art. 389. The Comptroller of the Group, after consulting the relevant control authorities and the group, identifies the type of risk that must be declared in all circumstances.
To define the type of risk or give their opinion on the risk, the group controller and the relevant control authorities take into account the group concerned and its risk management structure.
In order to identify significant risk concentrations to be reported, the group controller, after consulting with the relevant control authorities and the group, imposes appropriate thresholds based on the required solvency capital, technical provisions or both.
When controlling risk concentrations, the group controller is particularly aware of the potential risk of contagion in the group, the risk of conflict of interest and the level or volume of risk.
§ 2. Intra-group transactions
Art. 390. § 1^er. The control of intra-group transactions is exercised in accordance with this section and section 391, as well as Sub-Section III of this Section.
§ 2. Insurance or reinsurance companies, insurance holding companies and mixed financial companies regularly report, and at least annually, to the group controller all significant intra-group transactions made by the group's insurance or reinsurance companies, including those made with a natural person with close ties to a company of the group, unless section 352 applies.
In addition, very significant intragroup transactions must be reported as quickly as possible.
The necessary information is submitted to the group controller by the participating insurance or reinsurance company or, where the group is not directed by an insurance or reinsurance company, by the insurance holding company, by the mixed financial company or by the insurance or reinsurance company of the group designated for that purpose by the group controller after consultation with the control authorities concerned and the group.
Intragroup transactions are subject to the prudential control of the group controller in accordance with Section III of this Chapter.
Art. 391. The group controller identifies, after consulting the relevant control authorities and the group, the type of intragroup transactions that must be reported in all circumstances.
To define the type of intragroup transactions or give their opinions on the intragroup, the group controller and the relevant control authorities take into account the group and its risk management structure.
In order to identify the intragroup transactions to be reported, the group controller, after consulting the control authorities concerned and the group, imposes appropriate thresholds based on the solvency capital required, technical provisions or both.
When controlling intragroup transactions, the group controller is particularly aware of the potential risk of contagion in the group, the risk of conflict of interest and the level or volume of risk.
Sub-Section III. - Governance system at the level
insurance or reinsurance group
§ 1^er. General
Art. 392. Participating insurance or reinsurance companies and insurance or reinsurance companies whose parent company is an insurance holding company or a joint financial company in the European Economic Area must meet the group's requirements under Section VII, Chapter II, Part I^er this Book and Section III, Chapter III, Part II of this Book, in order to ensure the coherence and proper integration of the devices, processes and mechanisms that it is required to implement under these provisions, to assess the influence of the companies included in the control of the insurance or reinsurance group on other companies and to exchange among them all the data and information required for the exercise of the control of the group, as well as to satisfy They implement these devices, processes and mechanisms also in their subsidiaries that do not fall under this Act. These devices, processes and mechanisms are coherent and well-integrated and these subsidiaries must be able to provide any data and information that is relevant to the exercise of the control of the group.
Art. 393. The insurance or reinsurance company whose parent company is an insurance holding company or a joint financial company whose head office is established outside Belgium, ensures that its parent company complies with the group's control obligations, which are the responsibility of that insurance holding company or that joint financial company in accordance with Directive 2008/139/EC and its enforcement measures.
The insurance or reinsurance undertaking must obtain the cooperation of the parent company referred to in paragraph 1^er in order to establish an adequate management structure that helps to ensure that the control of the group can be exercised in the most effective way possible, and ensures that the influence of the parent company is not contrary to the Company Code and its enforcement orders and does not prejudice the individual control or control of the group applicable to the insurance or reinsurance company.
In the memorandum of governance required under Article 42, § 3, it is necessary to establish, with respect to control at the group level, how it is satisfied with paragraphs 1^er and 2.
§ 2. Risk management and internal control
Art. 394. Without prejudice to section 392, risk management and internal control systems and reporting procedures are applied in a consistent manner in all companies included in the group control in accordance with this Chapter so that these systems and procedures can be controlled at the group level.
Without prejudice to section 392, the internal control system of a group includes at least the following:
1° of the appropriate procedures for the solvency of the group, allowing to identify and measure all significant risks incurred and to appropriately link funds eligible for risk;
2° sound reporting and accounting procedures to control and manage intra-group transactions and risk concentration.
Art. 395. The reporting systems and procedures referred to in sections 392 and 394 are subject to the prudential control of the group controller in accordance with Section III of this Chapter.
§ 3. Internal assessment of risk and solvency of the group
Art. 396. The participating insurance or reinsurance company or, where the group is not directed by an insurance or reinsurance company, the insurance holding company or the mixed financial company shall proceed to the group's level to the assessment required by section 91.
When the solvency calculation is carried out at the group level according to the first method of calculation defined in sections 372 and 373, the participating insurance or reinsurance company, the insurance holding company or the mixed financial company provides the group controller with an appropriate analysis of the difference between the sum of the different solvency capital amounts required for all related insurance or reinsurance companies owned by the group and the solvency capital required for the group.
Art. 397. The participating insurance or reinsurance company, the insurance holding company or the mixed financial company may, with the agreement of the group controller, conduct at the same time all evaluations imposed in accordance with section 91 at the group level and at the level of any subsidiary of the group and prepare a single document covering all evaluations.
Before giving the agreement under paragraph 1^er, the controller of the group consults the members of the Comptroller's College and takes due account of their opinions and reservations.
The agreement given by the group controller pursuant to paragraph 1^er does not exempt the relevant subsidiaries from the obligation to ensure compliance with the requirements of section 91.
In the event of application of this section, the participating insurance or reinsurance company, the insurance holding company or the mixed financial company shall submit the single document simultaneously to all the control authorities concerned.
Art. 398. The internal risk and solvency assessment at the group level is subject to the prudential control of the group controller in accordance with Section III of this Chapter.
Sub-section IV. - Information to the public
§ 1^er. Group solvency and financial situation report
Art. 399. The participating insurance or reinsurance company or, where the group is not run by an insurance or reinsurance company, the insurance holding company or the mixed financial company publishes an annual report on solvency and financial situation at the group level.
This report includes information required by Regulation 2015/35 and other enforcement measures of Directive 2009/138/EC. They are published in extenso or, with the permission of the group controller, by reference to equivalent information, in their nature and scope, published under other legal or regulatory provisions.
Art. 400. § 1^er. In the event of a major event that significantly affects the relevance of the information contained in the Group's credit and financial status report, the participating insurance or reinsurance company or, where the group is not led by an insurance or reinsurance company, the insurance holding company or the mixed financial company publish appropriate information on the nature and effects of the said major event.
§ 2. For the purposes of paragraph 1^er, are at least considered as a major event the observation of a significant deviation from the solvency capital required of the group and the fact that the group controller does not get a realistic recovery strategy within two months of the date the deviation was observed.
In the case referred to in paragraph 1^er, the company immediately publishes the amount of the discrepancy noted, with an explanation as to its origin and consequences and any corrective action taken. If, despite a recovery strategy initially considered realistic, a significant deviation from the group's required solvency capital has not been corrected six months after it has been found, the amount of this deviation is published at the end of this period, with an explanation of its origin and consequences, including the corrective measures taken and any new corrective action planned.
Art. 401. The participating insurance or reinsurance company or, where the group is not run by an insurance or reinsurance company, the insurance holding company or the mixed financial company may publish to its initiative any information or explanation relating to the solvency and financial situation of the group whose publication is not already required under sections 383 and 384.
Art. 402. Without prejudice to sections 392 and 394, the insurance or reinsurance company or, where the group is not directed by an insurance or reinsurance company, the insurance holding company or the joint financial company shall establish appropriate structures and systems to meet the requirements set out in sections 399 and 400, as well as a written policy to ensure the permanent adequacy of any information published in accordance with sections 399 and 400.
Art. 403. The group controller may authorize a participating insurance or reinsurance company, an insurance holding company or a mixed financial company not to publish any information referred to in section 399, where:
1° the publication of this information would give competitors of the company concerned an undue advantage;
2° the company is bound to a confidentiality obligation due to obligations with respect to insurance or relationships with other counterparties.
When the non-publication of information is authorized by the group controller, the participating insurance or reinsurance company, the insurance holding company or the financial company indicates in its report on the solvency and financial situation of the group and explains the reasons.
Art. 404. The Bank may specify the content and format of the information provided for in this Sub-section by regulation adopted pursuant to Article 12bis, § 2, of the Act of 22 February 1998.
§ 2. Single report on credit and financial situation
Art. 405. A participating insurance or reinsurance company, an insurance holding company or, where the group is not run by an insurance or reinsurance company, a joint financial company may, with the agreement of the group controller, publish a single report on its solvency and financial situation containing the following elements
1° information at the group level to be published in accordance with Article 399;
2° the information for any subsidiary of the group that must be individually indentifiable and must be published in accordance with, as the case may be, sections 95 to 101 of this Act or sections 51, 53, 54 and 55 of Directive 2009/138/EC, as well as the enforcement measures of this directive.
Before giving the agreement under paragraph 1^er, the controller of the group consults the members of the College of Controllers and takes due account of their opinions and reservations.
Art. 406. Where the report referred to in Article 405 does not contain the information that the Bank requests from a Belgian affiliate insurance or reinsurance company of the group, it may, if this omission is substantial, require that this subsidiary company concerned publish the necessary additional information.
Section III. - Exercise of group control
Sub-section I^re. - Determination of the group controller
Art. 407. § 1^er. A single controller, responsible for the coordination and exercise of the control of the group, known as the "controller of the group", is designated among the control authorities concerned.
§ 2. Control at the level of an insurance or reinsurance group is exercised by the Bank when it is the control authority of all insurance or reinsurance companies of the group.
In all other cases and subject to section 408, the group controller task shall be performed as follows:
1° in case the group is headed by a Belgian insurance or reinsurance company, by the Bank;
2° in case the group is not directed by a Belgian insurance or reinsurance company:
(a) where the insurance or reinsurance company has an insurance holding company or a joint financial company, by the Bank;
(b) where several insurance or reinsurance companies in the European Economic Area, including an insurance or reinsurance company in Belgian law, have the same joint insurance company or financial company as a parent company and one of these companies has been approved in the Member State in which the insurance holding company or the mixed financial company has its head office, by the supervisory authority of the insurance or reinsurance company;
(c) where the group is headed by several joint insurance holding companies or financial companies with their head office in different Member States, and that there is an insurance or reinsurance company in each of these Member States, including Belgium, by the supervisory authority of the insurance or reinsurance company showing the total of the highest balance sheet;
(d) where several insurance or reinsurance companies in the European Economic Area, including Belgium, have the same joint insurance holding company or financial company as a parent and none of these companies have been registered in the Member State in which the joint insurance holding company or financial company has its head office, by the supervisory authority of the insurance or reinsurance company having the highest balance of the balance sheet; or
(e) where the group does not have a parent business, or in circumstances that are not referred to in (a) to (d), by the supervisory authority that has approved the insurance or reinsurance undertaking with the highest balance sheet.
Art. 408. § 1^er. In particular cases, the Bank and the supervisory authorities concerned may jointly take the decision to waive the criteria referred to in section 407 when it appears inappropriate to apply them in the light of the group structure and the relative importance of the activities of insurance or reinsurance companies in the various countries, and designate another control authority as a group controller.
The Bank may require a discussion on whether the criteria referred to in section 407 are appropriate. This type of discussion, at the initiative of the Bank or a control authority concerned, takes place at a maximum once a year.
The Bank is doing everything in its power to reach a joint decision with the control authorities concerned on the choice of the group controller no later than three months after the request for the opening of the discussion. Before making their decision, the Bank and the relevant control authorities give the group the opportunity to express its opinion.
If the Bank is designated a group controller pursuant to this paragraph, it shall communicate to the group the joint decision with its full motivation.
§ 2. During the three-month period referred to in paragraph 1^er, paragraph 3, and as long as a common decision has not been made, the Bank may refer to IAPO pursuant to section 19 of Regulation No. 1094/2010.
In case of application of paragraph 1^er, the Bank and the relevant supervisory authorities differ their joint decision pending a possible decision of the IAPO arrested in accordance with Article 19, paragraph 3, of Regulation No. 1094/2010. The three-month period referred to in paragraph 1^er, paragraph 3, is the conciliation period within the meaning of Article 19, paragraph 2, of Regulation No. 1094/2010.
The Bank and the relevant control authorities stop their own joint decision in accordance with the decision of the IAPO. This joint decision is considered to be determinant and is implemented by the Bank and the supervisory authorities concerned.
If the Bank is designated a group controller pursuant to this paragraph, the Bank shall communicate to the controller group and college the common decision with its complete motivation.
§ 3. If no joint decision has been made pursuant to this section, the task of the group controller shall be exercised by the control authority defined in accordance with section 407.
Sub-section II. - Rights and obligations of the Comptroller of the Group and the relevant supervisory authorities - College of Comptrollers
Art. 409. § 1^er. Without prejudice to the other skills and tasks assigned to it by or under this Act, as well as by the enforcement measures of Directive 2009/138/EC, the Bank shall, in its capacity as the Comptroller of the Group, undertake the following tasks:
1° coordinates the collection and dissemination of useful or essential information, in the normal course of business as in emergency situations, including the dissemination of important information for the control exercised by a control authority concerned;
2° ensures prudential control and assessment of the group's financial situation;
3° it assesses the group's compliance with the solvency, risk concentration and intra-group transactions provided for by or under Section II of this Chapter and the enforcement measures of Directive 2009/138/EC;
4° it assesses the system of governance of the group, in accordance with Sub-Section III of Section II of this Chapter, as well as the respect, by members of the legal body of administration, of the steering committee or, if any, of the effective direction of the participating company of Belgian law, of the requirements set out in sections 40, 81 and 443, paragraph 1^er;
5° it plans and coordinates, by regular meetings held at least once a year or by any other appropriate means, the control activities, in the normal course of business as in emergency situations, in cooperation with the control authorities concerned, taking into account the nature, extent and complexity of the risks inherent in the activity of all companies that are part of the group;
6° it performs other tasks and takes other measures and decisions to the group controller by or under this Act as well as by the enforcement measures of Directive 2009/138/EC, including conducting the process of validation of any internal model at the group level in accordance with sections 374 and 377 to 380 and conducting the process leading to authorize the implementation of the regime under sections 383 to 387.
§ 2. Where a control authority concerned does not cooperate with the Bank, as a group controller, to the extent required to perform the tasks referred to in paragraph 1^er, the Bank may refer to IAPO and request assistance in accordance with Regulation No. 1094/2010, section 19.
Art. 410. In order to facilitate the exercise of the control tasks of the group referred to in section 409, the Bank, in its capacity as a group controller, is a college of the controllers it chairs.
In order to promote the convergence of their respective activities and decisions, the Comptroller's College ensures that cooperation, exchange of information and consultations between the Comptroller's control authorities are conducted in accordance with the provisions of Title III of Directive 2009/138/EC and its enforcement measures.
Art. 411. The Comptroller College is composed of:
1° of the Bank, as the controller of the group;
2° of the authorities concerned;
3° of IAPO in accordance with Article 21 of Regulation No. 1094/2010;
4° in the conditions defined by the enforcement measures of Directive 2009/138/EC, the supervisory authorities responsible for the control of an important branch or a related company within the group, on the understanding that their participation is limited to the realization of the objective of ensuring an effective exchange of information between control authorities.
The IAPO is considered to be a control authority concerned for the application of this subsection.
The proper functioning of the Comptroller's College may require certain activities to be carried out by a reduced number of supervisory authorities within it.
Art. 412. Without prejudice to the provisions provided by or under this Act and to the enforcement measures of Directive 2009/138/EC, the establishment and operation of the Comptroller's College shall be based on coordination agreements concluded by the Bank, in its capacity as Comptroller of the Group, and the control authorities concerned.
Without prejudice to the provisions provided by or under this Act and the enforcement measures of Directive 2009/138/EC, the coordination agreements referred to in paragraph 1^er specify the procedures to be followed:
1° by the Bank, in its capacity as Comptroller of the Group, and the control authorities concerned to make the decisions referred to in articles 374, 376, 407 and 408;
2° for consultation required by articles 359 and 413;
3° for consultation between the Bank, in its capacity as a group controller, and the control authorities concerned, particularly in the cases referred to in Articles 343 to 357, 360 to 362, 368, 369, 388 to 406, 421, 445 to 448;
4° in terms of cooperation with other control authorities than the control authorities concerned.
Without prejudice to the rights and duties conferred upon the Bank, in its capacity as a group controller, and to the control authorities concerned, by or under this Act and by the enforcement measures of Directive 2009/138/EC, the coordination agreements may assign additional tasks to the Bank, in its capacity as a group controller, or to other control authorities or to the IAPO where the result is more effective control of the group and
Art. 413. When a supervisory authority has seized the IOAOA pursuant to section 248, paragraph 4, paragraph 2, of Directive 2009/138/EC, the Bank, in its capacity as controller of the group, shall finalize its decision on the discrepancy of views with respect to a coordination agreement concluded pursuant to section 412, within two months of the receipt of the IAOA notice. It makes its final decision in accordance with the decision of the IAPO. It transmits its decision to the relevant supervisory authorities.
Art. 414. The Bank, as a group controller, immediately convenes a meeting of all the control authorities concerned at least under the following circumstances:
1° where it is aware of the existence of a serious violation of the required solvency capital requirement or a violation of the minimum required capital requirement in the head of an insurance or reinsurance company included in the group level control;
2° where it finds a significant deviation from the solvency capital required at the group level, calculated on the basis of the consolidated data, or the solvency capital required of the group on an aggregate basis, according to the calculation method applied in accordance with sections 372 to 380;
3° when it is aware of any other exceptional circumstance.
Art. 415. The Bank, in its capacity as a group controller, transmits to the IAPO the relevant information for the examination of the operation of the controller colleges, to which IAPO conducts in accordance with Article 248, paragraph 6 of Directive 2009/138/EC. It also transmits information on the difficulties encountered in this operation.
Art. 416. § 1^er. The Bank, in its capacity as the control authority concerned, participates in the College of Comptrollers constituted, in accordance with Article 248, paragraph 2, of Directive 2009/138/EC, by a control authority of another Member State as the Comptroller of the Group.
It cooperates with the controller of the group to the extent required for the performance of the duties that the controller undertakes under section 248, paragraph 1^er Directive 2009/138/EC and its enforcement measures. When the group controller does not perform the above-mentioned tasks, the Bank may refer to IAPO and request assistance in accordance with Regulation No. 1094/2010, section 19.
In the event of a discrepancy with the controller of the group or another control authority concerned with the coordination agreement governing the establishment and operation of the controller college in which it participates, the Bank, in its capacity as the control authority concerned, may refer to the IPOA and request its assistance in accordance with Rule 19 of Regulation No. 1094/2010.
In addition, the Bank, in its capacity as the control authority responsible for the control of an important branch or a related company within the group, may, under the conditions defined by the enforcement measures of Directive 2009/138/EC, participate in the College of Comptrollers established to facilitate control at the level of that group. In this case, its participation is limited to the realization of the objective of ensuring an effective exchange of information between control authorities.
§ 2. The Bank shall immediately convene a meeting of the Comptroller College at least under the following circumstances:
1° where it is aware of the existence of a serious violation of the requirement for solvency capital or a violation of the requirement for a minimum of capital required, in the head of a Belgian insurance or reinsurance company included in the control at the group level;
2° when it is aware of any other exceptional circumstance.
Sub-section III. - Cooperation
and exchange of information between the control authorities
Art. 417. The Bank, in its capacity as a controller of the group or control authority concerned, cooperates closely with the control authorities of insurance or reinsurance companies that are part of an insurance or reinsurance group, especially in cases where an insurance or reinsurance company is experiencing financial difficulties.
It may communicate, on initiative or upon request, or request to these supervisory authorities any relevant information where it is relevant to enable and facilitate the exercise of the control tasks entrusted to it or to those authorities under Directive 2009/138/EC or its enforcement measures. The information referred to in this paragraph includes, but is not limited to, information relating to the actions of the group and the supervisory authorities, as well as information provided by the group.
If a control authority referred to in paragraph 1^er omits to disclose relevant information, or if a request for cooperation from the Bank, in particular for the exchange of relevant information, is rejected or is not followed by effect within two weeks, the Bank may refer to IAPO pursuant to section 19 of Regulation No. 1094/2010.
Art. 418. The Bank, in its capacity as a group controller, shall transmit to the relevant control authorities and to the IAPO the information concerning the insurance or reinsurance group, in accordance with sections 95 and 96 and subsection V of this Section, in particular its legal structure, governance system and organizational structure.
Art. 419. Where the Bank is not the Comptroller of the designated group pursuant to section 407, it may be invited by the Comptroller of the group to request a Belgian parent company any information useful for the exercise by the Comptroller of the group of its rights and coordination obligations as defined in Directive 2009/138/EC and its enforcement measures, and to transmit it to it.
When the Bank is the Comptroller of the Group in accordance with Article 407 and the parent company has its head office in a Member State other than Belgium, the Bank may invite the supervisory authority of that Member State to request the parent company any useful information for the exercise of its rights and coordination obligations as defined by this Law, Directive 2009/138/EC and its enforcement measures, and to transmit it to it.
Art. 420. When a Belgian insurance or reinsurance company and a credit or investment company or both are directly or indirectly linked or have a joint participating company, the Bank works closely with the control authorities of this credit or investment company.
Without prejudice to their respective competencies, the Bank may communicate, on initiative or on request, or request such authorities any information that may permit and facilitate the exercise of their respective tasks and allow the monitoring of the activity and financial situation of all companies under their supervision.
Sub-section IV. - Consultation between supervisory authorities
Art. 421. Without prejudice to Sub-Section III of this Section, the Bank shall consult, within the Comptroller's College, the supervisory authorities of insurance or reinsurance companies included in the control at the group level, before making one of the following decisions:
1° the changes in the structure of the ownership, organization or management of an insurance or reinsurance company, which require the approval or authorization of the Bank; and
2° the extension of the recovery period in accordance with Article 510;
3° the principal sanctions and exceptional measures taken by the Bank, including the application of an additional capital requirement in addition to the solvency capital required in accordance with section 323 and the application of any limitation of the use of an internal model for the calculation of the solvency capital required in accordance with sections 167 to 188.
4° any decision based on information received from another control authority.
The Bank may decide not to make a consultation referred to in paragraph 1^er in the event of an emergency or where such consultation would jeopardize the effectiveness of its decision. In this case, the Bank shall promptly inform the supervisory authorities concerned as soon as it has made its decision.
By derogation from paragraph 2, the Bank shall always consult with the group controller when considering making a decision under paragraph 1^er2° or 3°.
Sub-section V. - Information to be provided
for the exercise of control at the group level
Art. 422. § 1^er. Insurance or reinsurance companies, insurance holding companies and mixed financial companies, their subsidiaries and all other companies included in the group-level control, provide the Bank, in its capacity as the group controller, with all the information necessary for the exercise of the control tasks that the group controller is responsible for by or under this Act, as well as the information necessary to make any appropriate exercise of the functions called by the group controller
§ 2. For the purposes of paragraph 1^er, the Bank may:
1° define, on an individual basis or by way of a regulation made in accordance with Article 12bis, § 2 of the Act of 22 February 1998, the nature, scope, format, frequency and modalities of transmission of information referred to in paragraph 1^er, to which it requires communication from enterprises referred to in paragraph 1^er at the following moments:
(a) at predefined times;
(b) where predefined events occur;
(c) in investigations into the situation of an insurance or reinsurance company due to its inclusion in the control at the group level.
2° obtain any information regarding contracts held by intermediaries or contracts entered into with third parties;
3° require information from external experts;
4° prescribing the regular transmission of encrypted or descriptive information other than those referred to in paragraph 1^erwhere such information is necessary to verify compliance with the provisions of this Act or the regulations and regulations made pursuant to it.
Article 312, § 3, is applicable to the information referred to in paragraphs 1^er and 2.
§ 3. The information referred to in paragraphs 1^er and 2 respect the following principles:
1° they reflect the nature, extent and complexity of the activities of the insurance or reinsurance group, including the risks inherent in the activities of the insurance group;
2° they are accessible, complete for everything that is important, comparable and consistent over time;
3° they are relevant, reliable and understandable.
Art. 423. Notwithstanding the predefined moments referred to in section 422, § 2, a), the Bank, in its capacity as a group controller, may limit the regular communication of information for the purpose of controlling a frequency less than one year at the group level, provided that all insurance or reinsurance companies included in the group level control benefit from the application of section 313, having regard to the nature, extent and scope of the group
Art. 424. The Bank, in its capacity as a group controller, may exempt from the obligation to communicate information posted by mail to the group level, provided that all insurance or reinsurance companies included in the group level control benefit from the application of section 314, in light of the nature, extent and complexity of the risks inherent in the group's activity and the objective of financial stability.
Art. 425. When it requires information referred to in sections 422, 423 and 424, which have already been provided to another control authority, the Bank, in its capacity as a group controller, shall, to the extent possible, address this authority in order to avoid any duplication in the head of the company in the communication of information to the various authorities participating in the control at the group level.
Art. 426. Companies that are not included in the group level control pursuant to section 349 are required to communicate to the Bank, in its capacity as a group controller, all information and information that the Bank considers necessary for the exercise of control at the group level.
Companies that control, exclusively or jointly with others, a Belgian insurance or reinsurance company, as well as the subsidiaries of these companies, are required, if these companies and subsidiaries are not included in the control at the group level, to communicate to the Bank and other relevant control authorities the information and information useful to the exercise of the control of this insurance or reinsurance company.
Art. 427. Without prejudice to sections 422 to 426, the Bank may not address directly to the group companies to obtain the information necessary for the exercise of control at the group level only when this information has been requested from the insurance or reinsurance company subject to the control of the groups and that the company has not provided this information within a reasonable time.
Art. 428. § 1^er. The Bank may conduct on-site inspections and, without displacement, make aware and copy of any information held by the insurance or reinsurance company subject to control at the group level, its related undertakings, its parent company or the enterprises related to its parent company, with a view to verifying compliance with the provisions provided for by or under this Chapter, as well as the enforcement measures of Directive 2009/138/EC and, in particular, to verify compliance Section 304 is applicable.
It may, at the expense of these undertakings, charge the Commissioner of these undertakings or an expert designated by the Commissioner for this purpose to carry out such audits.
Sections 305, 306 and 307 are applicable.
§ 2. Where enterprises referred to in paragraph 1^er have their head office in another Member State, the Bank requests the supervisory authority of that Member State to conduct the on-site inspection. The Bank itself conducts this inspection if it has been authorized by the control authority of that Member State. Where the latter conducts the inspection itself, or designates a reviewer or expert to do so, the Bank may, if it wishes, participate in the inspection.
Where the request made by the Bank pursuant to paragraph 1^er has not been effective within two weeks, or when it is in practice prevented from participating in the on-site inspection, the Bank may refer to IAPO and seek assistance in accordance with Regulation No. 1094/2010, section 19.
§ 3. Where enterprises referred to in paragraph 1^er have their head office in a third country, the terms of the on-site verification are regulated in cooperation agreements that the Bank concludes with the authorities of third countries concerned, if applicable in accordance with Article 36/16, § 2, of the Law of 22 February 1998 or that the European Commission has concluded in accordance with the provisions of Article 264 of Directive 2009/138/EC.
Art. 429. § 1^er. When the control at the level of the insurance or reinsurance group is exercised by a supervisory authority that reports to a Member State, other than Belgium, insurance or reinsurance companies, insurance holding companies, mixed financial companies and their Belgian affiliates communicate to that supervisory authority the information and information that it considers necessary for the exercise of the control tasks that it undertakes in its capacity as controller of the group in accordance with the Directive 2009/1 to
Where this authority falls under the right of a third country and the obligation of information arises from cooperation agreements concluded by the Bank or the European Commission pursuant to Article 264 of Directive 2009/138/EC, paragraph 1^er is applicable by analogy.
§ 2. Where the control at the level of the insurance or reinsurance group is exercised by a supervisory authority that falls under a member State, other than Belgium, that authority may, in order to verify compliance with the provisions provided for by or under this Chapter as well as with the enforcement measures of Directive 2009/138/EC, carry out on site in Belgian legal enterprises referred to in paragraph 1^er, to verify the information and information it has received, or may charge certified commissioners or experts authorized by them to do so. The provisions of Article 428, § 2, shall apply by analogy.
When this authority falls under the law of a third country, the provisions of Article 428, § 3, are applicable by analogy.
Sub-section VI. - Revisional control
Art. 430. The provisions of sections 330 to 337 concerning the functions of a registered commissioner of an insurance or reinsurance undertaking are applicable by analogy to insurance or reinsurance companies subject to control at the group level in accordance with section 343.
Art. 431. § 1^er. In an insurance holding company or in a mixed financial company of Belgian law included in a control at the level of the group exercised by the Bank, the duties of commissioner referred to in the Corporate Code are entrusted to one or more reviewers or to one or more revisor companies, which, in accordance with section 327, are approved by the Bank for the functions of commissioner with an insurance or reinsurance company. Articles 325 to 329 are applicable by analogy.
§ 2. Commissioners appointed to an insurance holding company or joint financial company referred to in paragraph 1^erlend their cooperation to the exercise of control at the level of the Bank's group under their personal and exclusive responsibility and in accordance with this paragraph, to the rules of the profession and to the Bank's instructions.
Art. 432. Commissioners appointed in an enterprise referred to in Article 431 shall assess the adequacy of the internal control measures referred to in Article 42, § 1^er2°, and they communicate their findings to the Bank.
Art. 433. Authorized commissioners designated in a business referred to in Article 431 report to the Bank on the results of the limited examination of the periodical statements transmitted by the insurance company or the mixed financial company to the Bank at the end of the first social semester, confirming that they are not aware of the facts of which it appears that these periodic reports have not, in all significant respects, been established in accordance with the requirements provided by or under the law of 2009
They further confirm that the periodic reports issued at the end of the semester are, for the purposes of accounting data contained therein, complete and correct and are, in all significant respects, compliant with accounting and inventories, in that they are:
1° complete, i.e. they mention all the data in the accounting and in the inventories on which they are established,
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
They also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared, with respect to the accounting data contained therein, by application of the accounting and evaluation rules that presided over the preparation of the periodic reports for the last fiscal year. The Bank may specify which periodic reports are concerned.
Art. 434. Authorized commissioners appointed in a business referred to in Article 431 also report to the Bank on the results of the control of the periodic reports transmitted by the insurance holding company or the mixed financial company to the Bank at the end of the social year, confirming that these periodic reports are, in all significant respects, established in accordance with the requirements provided by or under the law, the enforcement measures of Directive 2009/138/EC and the instructions of the Board.
In addition, they confirm that the periodic reports issued at the end of the fiscal year are, for the purposes of accounting data contained therein, in all significant respects, compliant with accounting and inventories, in that they are:
1° complete, i.e. they mention all the data in the accounting and in the inventories on which they are established,
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
They also confirm that the year-end periodic reports were prepared, for the accounting data contained therein, by applying the accounting and evaluation rules preside over the preparation of the annual accounts.
The Bank may specify which periodic reports are concerned.
Art. 435. The registered commissioners designated in a business referred to in section 431 shall, at the request of the Bank, make special reports on the organization, activities and financial structure at the level of the insurance or reinsurance group, which shall be borne by the insurance holding company or the mixed financial company.
Art. 436. As part of their mission to a business referred to in section 431, or to a revisoral mission to a business related to such a business, the authorized commissioners shall report to the Bank as soon as they see decisions, facts or, where appropriate, developments:
1° that significantly influence or influence the situation of the insurance or reinsurance group from the financial angle or from the angle of its administrative and accounting organization or internal control;
2° that may result in non-compliance with the solvency capital requirements at the group level;
3° that may constitute violations of the Corporations Code, the statutes, this Act and the orders and regulations made for its execution with respect to the insurance holding company or the mixed financial company;
4° that are likely to result in the refusal or reservation to certify the consolidated accounts.
Art. 437. The registered commissioners shall communicate to the executives of the insurance or reinsurance company the reports they send to the Bank in accordance with section 435. These communications are subject to section 306.
They transmit to the Bank copies of the communications they address to these leaders, which deal with issues of interest to the Bank's control.
Art. 438. No civil, criminal or disciplinary action may be brought or any professional sanction imposed against registered commissioners who have proceeded in good faith with information referred to in section 436.
Art. 439. When the parent company of an insurance or reinsurance company of Belgian law is an insurance holding company or a joint financial company whose seat is established in another Member State and included in the control at the level of the group exercised by the Bank, the mission defined in sections 432 to 436 is carried out by analogy by the Commissioner-designated with a comparable task with that joint insurance holding company or financial company. In the absence of such a commissioner, the mission referred to in sections 432 to 436 shall be carried out by the Commissioner-designate to the Belgian legal insurance or reinsurance company subsidiary to that joint insurance company or financial company.
Art. 440. Commissioners appointed to insurance or reinsurance companies, insurance holding companies or joint financial companies of Belgian law pursuant to sections 430 and 431, have access to and may be aware of all documents and documents issued by both the subsidiaries included in the control at the group level as well as by the companies referred to in section 349.
The provisions of section 35 of the Act of 22 February 1998 apply with respect to the information they have received pursuant to paragraph 1^er.
Sub-section VII. - Careful measures
Art. 441. When Belgian insurance or reinsurance companies subject to control at the group level, do not comply with the requirements set out in or under this Chapter or with the enforcement measures of Directive 2009/138/EC, or when these requirements are met but the solvency of the group may, however, be compromised, or when the intragroup transactions or risk concentrations threaten the financial situation of the reinsurance companies,
1° in respect of the participating insurance or reinsurance company under Belgian law, the measures referred to in Part VI of this Act that are necessary to remedy the situation identified as soon as possible;
2° in respect of the company holding insurance or the joint financial company parent of Belgian law, the measures referred to in Articles 508, § 1^erand 517, § 1^er, 1°, at 5°, which are necessary for it to be remedied as soon as possible to the situation observed.
Where, in the situation referred to in paragraph 1^er, the Bank is not the controller of the group, it shall take the measures referred to therein, respectively, in respect of the insurance or reinsurance company or the holding company or the joint financial company, at the request of the controller of the group or its own initiative, taking into account the findings of the controller of the group regarding compliance with the provisions applicable to these entities.
Where appropriate, the Bank coordinates the measures taken pursuant to this Article with the relevant control authorities, including, as appropriate, with the group controller.
Art. 442. When the Bank, as the controller of the group, finds that the insurance or reinsurance companies having their headquarters in a Member State other than Belgium, and subject to control at the level of the group that it is responsible for exercising, do not comply with the requirements set out in Directive 2009/138/EC or its enforcement measures, or when these requirements are met but that the solvency of the group risks despite being compromised
Section IV. - Holding companies
and mixed financial companies
Art. 443. Without prejudice to Article 348, Articles 39, 40, 41, 45, §§ 1^er, 3 and 4, 46, §§ 1^er, 3 and 4, 47, 64 to 72, 81, 82, 83, 93 and 94 are applicable by analogy to any Belgian legal insurance company and any Belgian mixed financial company included in a control at the group level.
Without prejudice to Article 441, Articles 508, § 1^er, and 517 are applicable to the Belgian legal insurance company and the Belgian mixed financial company in case of violation of the provisions referred to in paragraph 1^er.
Art. 444. The Bank, as a group controller, sets out the list of insurance holding companies included in the control at the level of the group it operates.
It communicates this list to the supervisory authorities of the other Member States, to the IAOPA and to the European Commission.
Section V. - Mothers ' offices in a third country
Art. 445. When the company of insurance or reinsurance has for a parent company an insurance holding company, a joint financial company of a third country or an insurance or reinsurance company of a third country, the Bank, when it is the control authority that would play the role of the company's controller if the criteria set out in section 247, paragraph 2, of Directive 2009/138/EC were to apply (hereinafter referred to as "Company
The Bank conducts the audit referred to in paragraph 1^er where the European Commission has not adopted a delegated act in accordance with Article 260, paragraph 3 or 5, of Directive 2009/138/EC determining the equivalence of the prudential regime of the third country concerned, to that established by Title III of Directive 2009/138/EC. It acts at the request of the parent or subsidiary insurance or reinsurance company, or on its own initiative.
For the purposes of the audit referred to in paragraph 2, the Bank, in its capacity as Comptroller f.f. of the Group, shall be assisted by the CIPO in accordance with section 33, paragraph 2, of Regulation No. 1094/2010. She consults the authorities concerned before deciding on equivalence. The decision is based on the criteria adopted under section 260, paragraph 2, of Directive 2009/138/EC.
The Bank, as the Group's f.f. controller, makes no decision with respect to a third country that opposes a previous decision with respect to that third country, unless it is necessary to take into account any significant changes in the control regime established by Directive 2009/138/EC or in the control regime of the third country.
Art. 446. Pursuant to Article 260, paragraph 1^er, paragraph 4 of Directive 2009/138/EC, the Bank may refer to IAPO and seek its assistance, in accordance with Regulation No. 1094/2010, when it is in the event of disagreement with the decision of the Comptroller f.f of the group on the equivalence of the prudential control regime of a third country.
Art. 447. In the event of an equivalence of control, within the meaning of Article 260 of Directive 2009/138/EC, the Bank relies on control at the level of the group exercised in an equivalent manner by the authorities of third countries, provided that Articles 441 and 442 as well as Sections III and IV of this Chapter are applicable by analogy to cooperation with the authorities of third countries.
Paragraph 1^er is also applicable in the case of temporary equivalence determined by the European Commission in accordance with Article 260, paragraph 7 of Directive 2009/138/EC, unless an insurance or reinsurance company located in a Member State presents a total balance sheet higher than the total balance sheet of the parent company located in a third country. In this case, the task of the group controller is performed by the group f.f. controller.
Art. 448. § 1^er. In the absence of an equivalent control within the meaning of section 260 of Directive 2009/138/EC, the Bank, in its capacity as a group controller, applies to the insurance or reinsurance company whose parent company is an insurance holding company, a mixed financial company of a third country or an insurance or reinsurance company of a third country, in a similar manner to the provisions provided by or under this Chapter.
General principles and methods referred to in Sections I^re to IV of this Chapter shall apply at the level of the insurance holding company, the mixed financial company or the insurance or reinsurance company of the third country.
For the sole purpose of calculating the solvency of the group, the parent company is considered to be an insurance or reinsurance company subject to the same conditions as those set out in sections 140 to 150, with respect to eligible equity to cover the solvency capital required and one of the following requirements:
1° a credit capital required to be determined in accordance with the principles of section 366 if it is an insurance holding company or a mixed financial company;
2° a credit capital required in accordance with the principles of section 367 if it is an insurance or reinsurance enterprise of a third country.
§ 2. Derogation from paragraph 1^er, the Bank, in its capacity as a group controller, is empowered, after consultation with the control authorities concerned, to apply other methods ensuring appropriate control of the insurance or reinsurance undertaking referred to in paragraph 1^er and enabling the achievement of the control objectives at the group level in accordance with Title III of Directive 2009/138/EC.
The Bank may, in particular, require the establishment of an insurance holding company with its head office in the European Economic Area or a joint financial company with its head office in the European Economic Area and apply this Chapter to the insurance or reinsurance companies of the group led by that insurance holding company or that joint holding financial company.
The Bank shall communicate to the relevant supervisory authorities and to the European Commission any decision taken pursuant to this paragraph.
Art. 449. When the parent company referred to in section 445 is itself a subsidiary of an insurance holding company or a joint financial company having its head office in a third country or of an insurance or reinsurance company of a third country, the Bank, in its capacity as a third-party insurance company, carries out the verification provided for in section 445 only at the level of the higher parent company that is a third-party insurance company
The Bank, in its capacity as the Group's f.f. controller, may, however, in the absence of an equivalent control within the meaning of section 260 of Directive 2009/108/EC, conduct a new audit at a lower level where a parent company of insurance or reinsurance companies exists, whether at the level of a third-country insurance holding company, a joint financial company of a third-country insurance company or a third-country insurance company. She explains her decision to the group.
Section 448 is applicable by analogy.
Section VI. - Joint holding companies
Art. 450. § 1^er. When one or more insurance or reinsurance companies in Belgian law have a joint insurance holding company for their parent company, the Bank may request all the data and information it considers necessary for the exercise of its control on an individual basis and at the group level, of these insurance or reinsurance companies, either directly to the joint insurance holding company or through the subsidiary insurance or reinsurance companies. In the latter case, the joint insurance holding company remains, with the reporting insurance or reinsurance company, responsible for the correctness and timely communication of the information provided.
If the joint insurance holding company referred to in paragraph 1^er is a company of Belgian law, it has an adequate administrative and accounting organization and internal control to ensure that the information and information to be provided is correct and consistent with the applicable rules.
§ 2. The Bank can monitor on-site data and information provided pursuant to paragraph 1^er.
If the joint insurance holding company or one of its subsidiaries is established in a Member State other than Belgium, the on-site control of the information shall be carried out according to the procedure set out in Article 429. If this joint insurance holding company or one of its subsidiaries is a credit or investment company, the procedure set out in section 420 may also be applied.
When the joint insurance holding company or one of its subsidiaries has its head office outside the European Economic Area, the terms and conditions for the execution of the provisions of paragraph 1^er are regulated in cooperation agreements that the Bank concludes with the authorities of third countries concerned, if applicable in accordance with Article 36/16, § 2, of the Act of 22 February 1998 or that the European Commission has concluded in accordance with the provisions of Article 264 of Directive 2009/138/EC.
§ 3. The Bank may verify the correct and complete nature of the information and information provided pursuant to paragraph 1^er:
1° when the reporting company is a Belgian legal company, by the commissioner of this undertaking;
2° when the reporting company established its head office outside Belgium, by the authorized commissioner of the Belgian insurance or reinsurance company that the joint insurance company has as its subsidiary.
With respect to information and information from joint companies and their subsidiaries, the right referred to in section 440 applies by analogy to the authorized commissioners.
§ 4. The information and information referred to in paragraph 1^er must allow the Bank to assess, in particular, the solidity of insurance or reinsurance companies, the influence of the joint insurance holding company on the management of subsidiary insurance or reinsurance companies, and the operations of insurance or reinsurance companies with the joint insurance holding company.
§ 5. Insurance or reinsurance companies referred to in paragraph 1^er have adequate risk management processes, as well as adequate internal control mechanisms, including sound information and accounting procedures, to detect, measure, monitor and control transactions with their joint parent insurance company and related parent insurance companies in an appropriate manner. They report all significant transactions with these entities. These procedures and transactions of significant importance are subject to control by the Bank.
Articles 390, 391, 417 to 430, 441, paragraphs 1^er, 2°, 2 and 3, and 442 are applicable by analogy.
If the nature and extent of the transactions referred to in paragraph 1^er compromise the financial situation of the Belgian subsidiary insurance or reinsurance company, the Bank takes appropriate measures. Without prejudice to other possible measures, it may require that these operations be terminated.
CHAPTER III. - Complementary monitoring of conglomerates
Section I^re. - Application cases, scope
and levels of complementary monitoring of conglomerates
Sub-section I^re. - Application cases
Complementary Monitoring of Conglomerates
Art. 451. To the extent and in accordance with the terms and conditions set out in this Chapter and its decrees and regulations of execution, the insurance or reinsurance companies of Belgian law:
1° that are at the head of a financial conglomerate; or
2° whose parent company is a mixed financial company having its seat in a Member State
are subject to additional monitoring of conglomerates.
If several regulated companies are subsidiaries of the mixed financial company referred to in paragraph 1^er, 2°, the supplementary monitoring of the conglomerates applies only to the insurance or reinsurance company of Belgian law, provided that the Bank is competent for the additional monitoring of the conglomerates under section 471.
Complementary monitoring of conglomerates shall not prejudice the individual control of any regulated undertaking that falls within the scope of the complementary monitoring of conglomerates, unless otherwise provided by or under this Chapter. However, consideration may be given to the implications of the complementary monitoring of conglomerates in determining the content and terms of individual control of insurance or reinsurance companies.
Art. 452. § 1^er. To determine whether a group is a financial conglomerate within the meaning of Article 340, 2°, the thresholds defined in the following paragraphs are applied.
§ 2. The activities of a group are deemed to be carried out mainly in the financial sector within the meaning of section 340, 2°, (b), (i), if the ratio between the total of the common balance of the companies of the group belonging to the financial sector and the total of the common balance of the whole of the companies of the group exceeds 40%.
§ 3. Businesses of a group that are part of the same financial sector are deemed to be important within the meaning of section 340, 2°, (a), (iii) or (b), (iii) if
1° the average of the following two reports is greater than 10%: the ratio between the total of the common balance sheet of all the companies in the group that are part of the same financial sector and the total of the joint balance sheet of all the companies in the group that belong to the financial sector, and the relationship between the common solvency requirements of all the companies in the group that are part of the said financial sector and the common solvency requirements of all the companies
2° is the total of the joint balance sheet of companies that are part of the largest financial sector in the group is over 6 billion euros.
For the purposes of paragraph 1^er:
1° the banking sector and the investment services sector are aggregated and considered to be part of the same financial sector;
2° the least important financial sector within a financial conglomerate means the financial sector that has the lowest average and the largest financial sector within a financial conglomerate is the sector that has the highest average.
§ 4. Competent authorities may agree not to consider a group as a financial conglomerate or not to apply the provisions of Articles 7, 8 and 9 bis of Directive 2002/87/EC, if they consider that the inclusion of the group in the scope of the complementary monitoring of conglomerates or the application of these provisions is not necessary, or inappropriate or confusing in respect of the objectives
1° if the group reaches the threshold referred to in paragraph 3, paragraph 1^er2°, but the average referred to in paragraph 3, paragraph 1^er1°, not more than 10%;
2° if the group reaches the average referred to in paragraph 3, paragraph 1^er1°, but the least important sector remains under the amount of 6 billion euros referred to in paragraph 3, paragraph 1^erTwo.
Decisions made pursuant to paragraph 1^er shall be communicated to the other competent authorities, and shall be published, except in exceptional circumstances, by the competent authorities.
§ 5. For the purposes of paragraphs 2 to 4, the relevant authorities may agree:
1° not to include a company in the calculation of the thresholds, for the same reason that this company may, pursuant to section 458, § 2, not be included in the calculation of solvency requirements, except in the case where the entity has been transferred from a Member State to a third country and where there are indications that it has changed its operation solely for the purpose of avoiding the regulation;
2° to consider as a financial conglomerate a group that no longer meets the thresholds set out in paragraphs 2 to 4, but has met it for three consecutive years, so as to avoid a sudden change in monitoring regime, or to make another decision, or to reconsider an earlier decision, in the event of a significant and lasting change in the structure of the group;
3° to exclude one or more participations in the least important sector if these participations are decisive for the identification of a group as a financial conglomerate and if, collectively, they have a negligible interest in the objectives of complementary monitoring.
If a group is qualified as a financial conglomerate in accordance with paragraphs 2 to 4, the decisions referred to in paragraph 1^er this paragraph shall be taken on the basis of a proposal by the Bank if it is a coordinator.
§ 6. For the purposes of paragraph 2 and paragraph 3, paragraph 1^er, 1°, relevant authorities may, in exceptional cases and in common agreement, replace or supplement the parameter based on the total of the common balance by one of the following parameters or by several of them, if they consider that these parameters, in view of the objectives of the complementary monitoring of the conglomerates, better reproduce the activity of the group; these parameters are the income structure, the group's off-balance operations and the total assets under management. The Bank, as coordinator, defines the method of calculating these parameters.
§ 7. If a financial conglomerate subject to supplementary monitoring no longer meets one or more of the thresholds set out in paragraphs 2 to 4, these thresholds are replaced for the following three years by the following thresholds: 40% becomes 35%, 10% becomes 8% and 6 billion euros becomes 5 billion euros, in order to avoid sudden changes in the regime.
Derogation from paragraph 1^er, the Bank, in its capacity as coordinator, may decide, with the agreement of the other relevant authorities, not or no longer apply these lower thresholds during the three-year period referred to above, taking into account the objectives of the complementary monitoring of the conglomerates.
§ 8. The calculations for the total of the joint balance sheet, as referred to in this article, are carried out on the basis of the aggregate balance sheet of the companies in the group, starting from their most recent annual accounts, according to the rules defined by the Bank if it is a coordinator. Companies in which the group holds participations are taken into account in the amount of their total balance sheet, which corresponds to the aggregate share held by the group. If, for a specific group or parts of the group, consolidated accounts are established, the calculations are made from these accounts.
The solvency requirements referred to in this section are calculated according to the provisions of the sectoral regulations applicable to the regulated enterprises concerned.
§ 9. Competent authorities reassess on an annual basis the exemptions to the application of the complementary monitoring of the conglomerate and examine the quantitative indicators provided for in this Article as well as risk-based assessments of financial groups.
Art. 453. § 1^er. The Bank checks whether insurance or reinsurance companies approved under Belgian law are part of a financial conglomerate. It operates in close collaboration with the competent authorities of other regulated companies belonging to this group that are approved in accordance with European law. If the Bank considers that the group in question is a financial conglomerate and that the latter Not already subject to further monitoring of conglomerates, she advises other relevant authorities and the joint committee.
§ 2. The Bank, in its capacity as coordinator, informs the parent company of the group or, in the absence of a parent company, the regulated company that shows the total of the highest balance sheet in the largest financial sector of the group, as the group was identified as a financial conglomerate and was designated as a coordinator. It also informs the competent authorities of the other regulated companies belonging to this group which are approved in accordance with European law, the competent authorities of the State in which the joint financial company has its head office, the joint committee, and, if it deems it necessary in view of the objectives of the complementary monitoring of the conglomerates, the authorities of third countries.
Sub-section II. - Scope
Complementary Monitoring of Conglomerates
Art. 454. The insurance or reinsurance companies referred to in section 451 meet the requirements of sections 459 to 467 at the financial conglomerate level. This scope of the complementary monitoring of conglomerates corresponds to all regulated or non-regulated companies, which are part of the group as defined in Article 340, 1°, taking as a starting point the insurance or reinsurance company that is at the head of the financial conglomerate or the mixed financial company whose seat is established in the European Economic Area.
Art. 455. Complementary monitoring of conglomerates does not result in the exercise of an individual control over a mixed financial company, or any other undertaking taken over in the scope of this monitoring.
Sub-section III. - Levels
Complementary Monitoring of Conglomerates
Art. 456. When a financial conglomerate itself forms part of another financial conglomerate subject to complementary monitoring of the conglomerates, the Bank, in its capacity as coordinator, may exempt, in whole or in part, the insurance or reinsurance companies referred to in section 451 that are part of the subgroup, from the complementary monitoring of conglomerates if the objectives of the latter are met in a sufficient manner
Section II. - Fields
Complementary Monitoring of Conglomerates
Sub-section I^re. - Complementary surveillance of solvency
Art. 457. The insurance or reinsurance companies referred to in section 451 are subject to further monitoring of solvency at the group level. Additional monitoring includes:
1° compliance with the requirement that clean funds be permanently available at the financial conglomerate level and at least equal to solvency requirements; clean funds and solvency requirements at the financial conglomerate level are calculated according to one of the methods set out in Appendix V, and in accordance with the provisions and principles set out in Regulation 342/2014;
2° the adequacy of the management procedures and internal controls relating to the solvency of the group, in accordance with the provisions of subsection V of this Section;
3° the adequacy of equity strategies.
The requirements referred to in paragraph 1^er are under the control of the Bank, as coordinator, in accordance with Section IV of this Chapter. It ensures that the calculation referred to in paragraph 1^er at least once a year. The results of the calculation and the relevant data on which it is based are submitted to it by the insurance or reinsurance company, by the mixed financial company, or by a regulated company that is part of the financial conglomerate designated by the Bank after consultation with other relevant authorities and the financial conglomerate.
Art. 458. § 1^er. By derogation from the scope of the complementary monitoring of the conglomerates referred to in section 454, all companies in the group, which are part of the financial sector, are subject to the supplementary monitoring of solvency for the purposes of section 457, paragraph 1^er1°.
§ 2. Derogation from 1^er paragraph, the Bank, in its capacity as coordinator, may decide, in the following cases, not to include a particular undertaking within the scope of the supplementary monitoring of solvency referred to in section 457, paragraph 1^er1°:
1° where the company is located in a third country where legal obstacles prevent the transfer of the necessary information, without prejudice to the sectoral rules requiring the competent authorities to refuse approval when the effective exercise of their oversight function is prevented;
2° where the company has a negligible interest in the objectives of the complementary monitoring of regulated companies owned by a financial conglomerate;
3° where its inclusion is inappropriate or may lead to confusion, in view of the objectives of the complementary monitoring of conglomerates.
Where multiple businesses are to be excluded in the case referred to in paragraph 1^er2°, however, it is necessary to include them as long as, collectively, they have a significant interest.
§ 3. When the Bank, as coordinator, considers that an insurance or reinsurance company should not be included in the supplementary monitoring of conglomerates by application of paragraph 2, paragraph 1^er, 3°, it consults other relevant authorities before deciding, except in the event of an emergency.
Sub-section II. - Monitoring
complementary risk concentration
Art. 459. The insurance or reinsurance companies referred to in section 451 are subject to additional risk concentration monitoring. Without prejudice to the provisions of Regulation 2015/2303, the supplementary monitoring shall include:
1° identification and reporting of significant risk concentrations;
2° the adequacy of the management procedures and internal control mechanisms for the concentration of the group's rics in accordance with the provisions of Sub-section V of this Section.
In particular, monitoring focuses on the following aspects: the so-called risk of contagion within the group, the existence of conflicts of interest, the contours of sectoral regulation, and the level and extent of risk concentration.
Art. 460. § 1^er. The Bank shall, as coordinator, establish for the purposes of Article 459, paragraph 1^er1°, in consultation with other relevant authorities and after consultation with the financial conglomerate, the thresholds for the identification and reporting of each major risk concentration within the financial conglomerate. It determines the thresholds on the basis of the following two parameters or one of these parameters only: regulatory funds and technical provisions.
If no threshold has been established, risk concentrations are deemed to be significant if they exceed 10% of the solvency requirement of the financial conglomerate in question.
§ 2. Without prejudice to the provisions of Article 459, the Bank may, as coordinator, impose standards of limitation or other equivalent monitoring measures for the control of the concentration of risks at the level of a financial conglomerate. In order to oppose the bypassing of sectoral risk concentration regulations, it may also decide, in accordance with section 347, to apply by analogy the sectoral provisions on the subject at the financial conglomerate level. It consults with other relevant authorities.
Sub-section III. - Monitoring
Complementary intragroup transactions
Art. 461. Insurance or reinsurance companies referred to in section 451 are subject to additional monitoring of intragroup transactions. Without prejudice to the provisions of Regulation 2015/2303, the supplementary monitoring shall include:
1° identification and reporting of significant intragroup transactions;
2° the adequacy of the management procedures and internal controls in respect of intragroup transfers, in accordance with the provisions of subsection V of this Section.
In particular, surveillance focuses on the following aspects: the so-called risk of contagion within the group, the existence of conflicts of interest, the bypassing of sectoral regulations, and the level and extent of intragroup transactions.
Art. 462. § 1^er. For the purposes of section 461, paragraph 1^er, 1°, the Bank shall, in its capacity as coordinator, establish, in consultation with other relevant authorities and after consultation with the financial conglomerate, adequate thresholds for the identification and reporting of any significant intra-group operation. It determines the thresholds on the basis of the following two parameters or one of these parameters only: regulatory funds and technical provisions.
If no threshold has been set, intragroup transactions are deemed to be significant if they exceed 5% of the solvency requirement of the financial conglomerate in question.
§ 2. Without prejudice to the provisions of Article 461, the Bank may, in its capacity as coordinator, impose standards of limitation or other equivalent monitoring measures for the achievement of the objectives of the complementary monitoring of the conglomerate in respect of intragroup transfers. In order to oppose the bypass of sectoral regulation on intra-group transfers, it may also decide, in accordance with section 347, to apply, by analogy, the sectoral provisions on intra-group transactions at the financial conglomerate level. It consults with other relevant authorities.
Sub-section IV. - Periodic reporting
Art. 463. § 1^er. For the supplementary monitoring of the conglomerate regulated by sub-sections I, II and III of this Section, the following statements are submitted to the Bank, in its capacity as coordinator, in accordance with the terms and conditions it determines, and at least twice a year:
1° an accounting statement covering the financial situation of the financial conglomerate and comprising at least the balance sheet and the results account.
2° a statement of compliance with the standards defined by or pursuant to articles 457, paragraph 1^er, 1°, 460, § 2, and 462, § 2, as well as a state of significant risk concentrations and significant intragroup transactions referred to in Articles 459, paragraph 1^er, 1°, and 461, paragraph 1^er1°.
To this end, the Bank, in its capacity as coordinator, determines, in consultation with other relevant authorities, the categories of operations, risks and positions to be notified for the monitoring of major risk and intragroup transactions concentrations; In this regard, it may take into account the specificities of the group structure and the risk management structure of the financial conglomerate concerned.
§ 2. The statements referred to in paragraph 1^er are notified by the insurance or reinsurance company, the joint financial company, or a regulated company that is part of the financial conglomerate designated by the Bank after consultation with other relevant authorities and the financial conglomerate.
Sub-section V. - Procedures
and internal controls
Art. 464. The insurance or reinsurance companies referred to in section 451 shall ensure that the financial conglomerate has adequate risk management and internal control procedures, as well as an administrative and accounting organization.
In particular, these risk management procedures and these internal controls must be present at the consolidated and sub-consolidated level in the parent companies referred to in section 451, whether it is the insurance or reinsurance company or the mixed financial company at the head of the financial conglomerate, as well as in all regulated companies that are part of the financial conglomerate, so that the procedures of risk management and These parent companies apply these risk management procedures and internal controls also in their unregulated subsidiaries. These risk management procedures and internal controls are also coherent and well integrated, and these subsidiaries must also be able to provide the relevant data and information for monitoring.
Art. 465. § 1^er. Risk management procedures include:
1° adequate administration and management, with periodic approval and evaluation of the strategy and policy by the competent bodies, covering all significant risks at the financial conglomerate level;
2° an adequate solvency policy, which, in particular, ensures that the group anticipates the future consequences of the operating strategy followed on the group's risk profile and solvency requirements referred to in subsection I of this Section;
3° of the appropriate procedures to ensure that risk management and monitoring systems are sufficiently integrated into the organization of the group and that the systems used in the companies of the group agree with each other, so that at the level of the financial conglomerate, the risks are subject to proper identification, monitoring and control.
4° of regularly updated devices to participate in the implementation and, where appropriate, in the development of appropriate mechanisms and plans for recovery and resolution of failures.
§ 2. Internal controls include:
1° of the appropriate procedures for the monitoring of solvency at the group level, so that all significant risks are properly identified and monitored and that the equity is sufficient in relation to the risks involved;
2° Review of the adequacy of procedures and systems for the identification, measurement, monitoring and control of intragroup transactions and risk concentrations.
§ 3. The insurance or reinsurance companies referred to in section 451 have an administrative and accounting organization that ensures that the information and information provided for the further monitoring of the conglomerate and the preparation of the annual accounts is correct and in accordance with the applicable rules.
Art. 466. The insurance or reinsurance companies referred to in section 451 ensure transparency of the group's structure. The insurance or reinsurance company, the joint financial company or a regulated company that is part of the financial conglomerate that the Bank, in its capacity as coordinator, has designated, after consultation with other relevant authorities and with the financial conglomerate, as follows:
1° they regularly communicate to the Bank the particularities of their legal structure, corporate organizational structure and management structure encompassing all regulated companies, unregulated subsidiaries and significant branches;
2° they publish once a year at the level of the financial conglomerate a description of the legal structure, the corporate organizational structure and their management structure for the public and ensure that all regulated companies also publish this information either in full or in return to equivalent information.
Sub-section VI. - Resistance tests
Art. 467. The Bank, as coordinator, assesses at least once a year the need for resistance tests at the financial conglomerate level. To this end, it aligns its assessment of the resistance tests that are organized for the most important financial sector represented in the financial conglomerate and interacts with other relevant authorities.
For the application of these resistance tests, the Bank considers parameters that can identify specific risks associated with financial conglomerates.
The Bank reports the results of resistance tests to the joint committee.
Sub-section VII. - Governance
Art. 468. § 1^er. When the Bank exercises, pursuant to section 471, the additional monitoring of conglomerates on an insurance or reinsurance company referred to in section 451, the parent companies referred to in article 451 that have their head office in Belgium are responsible for the fulfilment of obligations relating to the complementary monitoring of conglomerates.
In the exercise of their coordination and control as a common business of the financial conglomerate, the parent companies referred to in paragraph 1^er enact guidelines for companies that are part of the financial conglomerate for compliance with obligations arising from the complementary monitoring of conglomerates and the obligation to ensure the stability of the financial conglomerate. These directives may not be contrary to the Company Code and its enforcement orders and may not prejudice the individual control over insurance or reinsurance companies that are part of the financial conglomerate.
§ 2. When the Bank exercises, pursuant to section 471, the additional monitoring of conglomerates on an insurance or reinsurance company referred to in section 451 whose parent company is a mixed financial company whose head office is established outside Belgium, the insurance or reinsurance company shall ensure that its parent company complies with the obligations relating to the complementary supervision of conglomerates.
The insurance or reinsurance company must obtain the cooperation of the intended parent company in order to establish an adequate management structure that helps to ensure that the complementary monitoring of conglomerates can be exercised in the most effective way possible, and ensures that the influence of the parent company is not contrary to the Code of companies and its enforcement orders and does not prejudice the individual control of the reinsurance company or
§ 3. In the internal governance memorandum required under section 42, § 3, it is necessary to establish, with respect to the level of financial conglomerate, how it is satisfied with the principles set out in paragraphs 1^er and 2.
§ 4. In the cases referred to in paragraphs 1^er and 2, the above-mentioned responsible parent companies provide the reporting required under section 463 of this Act, as well as, at the request of the Bank, all additional information relevant to the exercise of the complementary monitoring of conglomerates.
§ 5. Where the Bank exercises, under section 471, the supplementary monitoring of conglomerates in cases other than those referred to in subsections 1^er and 2, it may specify on a case-by-case basis how the principles referred to in paragraphs 1^er to 4 apply by analogy.
§ 6. For the application of paragraphs 1^er, 2 and 5, the Bank shall consult with the other competent authorities as appropriate.
§ 7. When another competent authority that the Bank exercises complementary monitoring of conglomerates on a Belgian insurance or reinsurance company, it is the responsibility of this insurance or reinsurance company to verify whether the influence of its parent company is not contrary to the Code of Companies and its enforcement orders and does not prejudice the individual control to which this insurance or reinsurance company is subject.
Art. 469. § 1^er. The steering committee, if any, the effective direction of the parent companies referred to in Article 451 of Belgian law that are included in the group control or the supplementary monitoring of the conglomerates exercised by the Bank, states that the reportings referred to in Article 468 § 4 are in accordance with accounting and inventories. For this purpose, it is required that the statements be complete, i.e. that they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, i.e. that they correspond exactly with the accounting and with the inventories on which they are established. The management committee, if any effective management, confirms that it has done the necessary to ensure that the above-mentioned statements are prepared in accordance with the applicable instructions, as well as by applying the accounting and evaluation rules for the preparation of the consolidated accounts, or, in respect of statements that do not relate to the end of the accounting year, by applying the accounting and evaluation rules that have presided over the preparation of the last consolidated accounts.
§ 2. Section 80 shall apply by analogy to the steering committee, if applicable to the effective management, of the parent enterprises referred to in paragraph 1^er with regard to the measures contained in articles 464 to 466.
Art. 470. Without prejudice to the principle set out in Article 455, and when the supplementary supervision of the conglomerate is exercised by the Bank, the following articles are applicable by analogy to the mixed financial company of Belgian law: Articles 39, 40, 41, 45, §§ 1^er, 3 and 4, 46, §§ 1^er, 3 and 4, 47, 64 to 72, 81, 82, 83, 508, § 1^erand 517.
Section III. - Exercise
Complementary Monitoring of Conglomerates
Sub-section I^re. - Determination of the coordinator
Art. 471. § 1^er. In order to ensure further monitoring of the appropriate conglomerates, the designation of a single coordinator among the competent authorities of the Member States concerned, including those of the Member State where the mixed financial company has its head office, is carried out which is responsible for the coordination and exercise of the complementary monitoring of the conglomerates.
§ 2. Complementary monitoring of conglomerates on insurance or reinsurance companies referred to in section 451, paragraph 1^er, is exercised as follows:
1° by the Bank in the case referred to in Article 451, paragraph 1^er, 1° ;
2° if the financial conglomerate is headed by a Belgian mixed financial company, by the Bank, without prejudice to points 3° to 7° :
3° if, in addition to a Belgian insurance or reinsurance company, at least another Belgian regulated company has the same Belgian mixed financial company at the head of the financial conglomerate, by the competent Belgian authority responsible for the prudential control of the Belgian regulated company whose total balance is the highest;
4° if the mixed financial company at the head of the financial conglomerate has its head office in another Member State than Belgium and has in that Member State a subsidiary which is a regulated company, by the competent authority of that country;
5° if the joint financial company at the head of the financial conglomerate has its head office in another Member State than Belgium and has in that Member State at least two subsidiaries which are regulated enterprises, with each one a competent authority different, by the competent authority of the regulated company of the most important financial sector;
6° if several mixed financial companies having their headquarters in different Member States are at the head of the financial conglomerate, and there is a regulated company in each of these Member States, by the competent authority of the regulated company having the highest balance sheet if the activities of these enterprises are in the same financial sector, or by the competent authority of the regulated company of the largest financial sector;
7° if at least two regulated companies having their head office in a Member State have the same mixed financial company as their parent company and none of these companies has an approval in the State where the mixed financial company has its head office, by the competent authority of the regulated company whose total balance sheet is the highest in the largest financial sector;
8° if the financial conglomerate is a group without a parent company at the head of the group, as well as in all cases other than the aforementioned cases, by the competent authority responsible for the control of the regulated company whose balance sheet is the highest in the most important financial sector.
Art. 472. The Bank and other relevant competent authorities may, in particular cases, agree to derogate from the rules of jurisdiction defined in Article 471, if their application, taking into account the structure of the financial conglomerate and the relative importance of the activity of the group in the various Member States, is not adequate, and appoint another competent authority to carry out the complementary monitoring of the conglomerates. They consult the financial conglomerate before making a decision on this matter.
Sub-section II. - Rights and obligations of the coordinator - College
Art. 473. § 1^er. Without prejudice to the other skills and tasks assigned to it by or under this Act as well as by Directive 2002/87/EC, the Bank's duties as coordinator include:
1° coordination of the collection and dissemination of relevant and essential information, both in business continuity and in emergency situations, including the dissemination of important information for monitoring by a competent authority under sectoral regulations;
2° the control, including the assessment, of the financial situation of the financial conglomerate;
3° the monitoring of compliance with the provisions of Articles 457 to 462 with respect to solvency, concentration of risks and intragroup transfers, and compliance with the reporting obligations referred to in Article 463;
4° control, including the assessment, structure, organization and internal controls of the financial conglomerate, as referred to in sections 464 to 466;
5° the planning and coordination of monitoring activities, both in business continuity and in emergency situations, in cooperation with other relevant authorities;
6° taking measures and penalties for the mixed financial company.
§ 2. Competent authorities may, where appropriate in consultation with other competent authorities, agree to entrust to the Bank, in its capacity as coordinator, other monitoring tasks than those provided for in paragraph 1^er.
Art. 474. § 1^er. The Bank, in its capacity as coordinator, establishes a College for Complementary Monitoring of Conglomerates in order to realize the cooperation provided for in this Chapter and the fulfilment of the coordinating missions and, where appropriate, the appropriate coordination and cooperation with the relevant supervisory authorities of third countries, in accordance with the confidentiality and law requirements of the Union.
§ 2. When relevant authorities are already participating in a college established under Article 248, paragraph 2, of Directive 2009/138/EC or Article 116 of Directive 2013/36/UC, the college will operate at the financial conglomerate level in the college established for the largest financial sector. The banking sector and the investment services sector are aggregated to this end.
The modalities of coordination referred to in paragraph 1^er are established separately in written coordination agreements established for the sectoral college. The Bank, in its capacity as coordinator, decides, as president of this sectoral college, which other competent authorities participate in a meeting or any activity of that college.
Art. 475. Without prejudice to the cooperation and coordination agreements referred to in the other provisions of this Chapter, the Bank, in its capacity as coordinator, concludes with other competent authorities the agreements that are necessary for the further monitoring of the conglomerates as defined in this Chapter. These agreements shall, as appropriate, regulate the terms and conditions for the exercise of this control, including the modalities for cooperation and exchange of information between the competent authorities. They may, in particular, settle decision-making procedures between relevant authorities.
Art. 476. The Bank, as coordinator, lists the mixed financial companies involved in the complementary monitoring of the conglomerates carried out by the Bank.
It communicates these lists to the competent authorities of the other Member States, to the EIB, to the EBA and to the European Commission.
Art. 477. Without prejudice to the delegation of specific supervisory competencies and responsibilities in accordance with sectoral regulations, the designation of the Bank as coordinator does not prejudice the tasks and responsibilities of the relevant authorities as defined by sectoral regulations.
Sub-section III. - Cooperation
and exchange of information between the competent authorities
Art. 478. The Bank, whether in its capacity as a coordinator or competent authority without being a coordinator, cooperates closely with other competent authorities, be they a coordinator or competent authority without being a coordinator.
It may communicate, on initiative or upon request, or request such competent authorities any information, including confidential information, where such information is essential or relevant to enable and facilitate the exercise of the monitoring tasks entrusted to it or entrusted to such authorities under the sectoral regulations and the complementary monitoring of conglomerates under Directive 2002/87/EC.
This cooperation covers at least the collection and exchange of information on the following:
1° the legal structure of the group, its corporate organizational structure and its management structure encompassing all regulated companies, unregulated subsidiaries and important branches within the meaning of section 354 of Regulation 2015/35 of the financial conglomerate, holders of qualified participations at the level of the parent company, as well as the competent authorities for the regulated companies of that group;
2° the strategies of the financial conglomerate;
3° the financial situation of the financial conglomerate, particularly with regard to the adequacy of equity, intragroup transactions, concentration of risks and profitability;
4° the main shareholders and the management of the financial conglomerate;
5° organization, risk management and internal control systems at the financial conglomerate level;
6° the procedures for collecting information from companies of the financial conglomerate and verifying such information;
7° the negative developments experienced by regulated companies or other financial conglomerate companies, which are likely to seriously affect the said regulated companies;
8° the significant sanctions and exceptional measures decided by the competent authorities in accordance with the sectoral regulations or Directive 2002/87/EC.
The Bank may also exchange information with the CERS regarding the exercise of control of insurance or reinsurance companies that are part of a financial conglomerate.
Art. 479. § 1^er. When the Bank, in the case of a Belgian law parent company, does not itself exercise the complementary monitoring of the conglomerates under section 471, it may be invited, by the competent authorities responsible for exercising this control, to request the parent company any relevant information for the exercise of this control, and to transmit it to them.
§ 2. Where, under Article 471, the Bank shall exercise the additional supervision of the conglomerate and the parent company shall have its head office in a Member State other than Belgium, the Bank may invite the competent authority of that Member State to request that the parent company any relevant information for the exercise of that control and to transmit it to it.
Art. 480. When a competent authority of another Member State exercises additional monitoring of conglomerates on an insurance or reinsurance company that is a subsidiary of a mixed financial company of Belgian law, the Bank shall, when so requested by that competent authority, verify how it may lend its cooperation for the application of the measures that would exist in the Member State of the competent authority for the inclusion of the mixed financial companies in the complementary supervision of the conglomerates.
Art. 481. The collection, exchange or detention of information by the Bank and the competent authorities with a view to facilitating the complementary monitoring of conglomerates with respect to the enterprises referred to in Article 483, § 1^er, do not mean that the Bank exercises a control function on these individually taken enterprises.
Sub-section IV. - Consultation between competent authorities
Art. 482. Without prejudice to its responsibilities as defined by the sectoral regulations, the Bank shall consult on the following points before making a decision in respect of the oversight missions carried out by other competent authorities:
1° of changes in the ownership, organization or management of regulated companies that are part of a financial conglomerate requiring the approval or authorization of the competent authorities;
2° the significant penalties and exceptional measures envisaged.
The Bank may decide not to consult with its counterparts in the event of an emergency or where such consultation may compromise the effectiveness of decisions. In such cases, the Bank shall promptly inform the other competent authorities.
Sub-section V. - Information to be provided for purposes
the exercise of the complementary monitoring of conglomerates
Art. 483. § 1^er. Without prejudice to the applicable periodic reporting, the Bank must have access, in its direct or indirect contacts with insurance or reinsurance companies, and the relevant mixed financial companies, their subsidiaries and all other companies included in the financial conglomerate, to any useful information for the exercise of its complementary monitoring of conglomerates.
Companies that are not included in the complementary monitoring of conglomerates in accordance with Article 458, § 2, are required to communicate to the Bank, in its capacity as coordinator, all information and information that the Bank considers necessary for its complementary monitoring of conglomerates.
Companies that control, exclusively or jointly with others, a Belgian insurance or reinsurance company, as well as the subsidiaries of these companies, are required, if these companies and subsidiaries do not fall within the scope of the complementary monitoring of conglomerates, to communicate to the Bank and other competent authorities the information and information useful to the exercise of the control of this insurance or reinsurance company.
§ 2. The Bank may require that the information referred to in paragraph 1^er concerning companies whose head office is established in a Member State other than Belgium shall be communicated to it by the insurance or reinsurance company, or the mixed financial company constituted under Belgian law, or that information relating to enterprises whose head office is established in a third country shall be communicated to it by an insurance or reinsurance company, or a mixed financial company having their head office in a Member State.
§ 3. If an insurance or reinsurance company of Belgian law is left outside the financial conglomerate by another competent authority that acts as coordinator, the Bank may require that the parent company that heads the financial conglomerate disclose to it the information and information that it considers useful for the exercise of its control of this insurance or reinsurance company.
Art. 484. Where the Bank, in the context of individual monitoring, control of groups or complementary monitoring of conglomerates, wishes to obtain information that has already been communicated in accordance with the sectoral regulations to another competent authority, it shall, to the extent possible, address this competent authority to obtain such information.
Art. 485. Without objections from private law, including confidentiality commitments or the nature of their links, companies included in the complementary monitoring of conglomerates, as well as companies belonging to a financial conglomerate that are excluded from the complementary monitoring of conglomerates in accordance with Article 458, § 2, shall mutually communicate the relevant information and information.
Art. 486. § 1^er. The Bank may conduct on-site verification of compliance with the obligations under this Chapter, as well as the correct and completeness of the information and information provided, in the enterprises referred to in Article 483, § 1^er. It may, at the expense of these undertakings, charge foreign commissioners or experts authorized by it to do so to conduct such audits.
§ 2. Where enterprises referred to in paragraph 1^er have their headquarters in another Member State, the Bank requests the competent authority of that Member State to carry out this control. The Bank itself conducts this control if it has been authorized by the competent authority of that Member State. Where the Bank wishes to carry out this control itself, or designates an approved reviser or an expert to that effect, the Bank may, if it wishes, be associated with it.
§ 3. Where enterprises referred to in paragraph 1^er have their head office in a third country, the terms of the on-site verification are regulated in cooperation agreements that the Bank has concluded with the foreign authorities concerned, if applicable in accordance with Article 36/16, § 2, of the Law of 22 February 1998 or that the European Commission has concluded in accordance with the provisions of Article 264 of Directive 2009/138/EC.
Art. 487. § 1^er. When the complementary monitoring of conglomerates is exercised by an authority that is a competent authority under a Member State, other than Belgium, insurance or reinsurance companies and the mixed financial companies and their Belgian affiliates, communicate to that competent authority the information and information that it considers useful for the exercise of the complementary monitoring of the conglomerates of which it is charged, either directly or indirectly.
Where this authority falls under the right of a third country and the obligation of information arises from cooperation agreements reached by the Bank with the relevant foreign authority, paragraph 1^er is applicable by analogy.
§ 2. Where the supplementary monitoring of conglomerates is exercised by a competent authority which is under a member State other than Belgium, that authority may, in order to verify compliance with the provisions provided for by or under this Chapter, proceed on site in the enterprises referred to in Article 483, § 1^erhaving their head office in Belgium, the verification of the information and information it has received or the loading of certified commissioners or experts approved by it to do so. The provisions of Article 485, § 2, shall apply by analogy.
When this authority falls under the law of a third country, the provisions of Article 485, § 3, are applicable by analogy.
Sub-section VI. - Revisional control
Art. 488. The provisions of sections 330 to 337 concerning the functions of a registered commissioner of an insurance or reinsurance undertaking on an individual basis shall apply by analogy with respect to the insurance or reinsurance undertakings referred to in section 451, paragraph 1^er, 1°, for the supplementary monitoring of conglomerates of insurance or reinsurance companies.
Art. 489. § 1^er. In a mixed financial company of Belgian law referred to in Article 451, paragraph 1^er, 2°, and included in the supplementary supervision of the Bank's conglomerates, the duties of commissioner referred to in the Corporate Code, are entrusted to one or more revisors or to one or more revisors, which are approved by the Bank in accordance with, as the case may be, section 327 of this Act, section 222 of the Act of 25 April 2014 or section 96 of the Act of the Bank. The College of Reviewers or reviewers, designated with a mixed financial company, must present a composition such as either individually or jointly approved in each of the financial sectors in which the financial conglomerate carries a significant activity. The Bank may, by reference to the thresholds referred to in section 452, determine what is to be heard by significant activity. The provisions of the revisoral control sector regulations are applicable by analogy.
§ 2. Approved Commissioners appointed to the mixed financial companies referred to in paragraph 1^er lend their cooperation to the complementary monitoring of the conglomerates to which the Bank is responsible, under their personal and exclusive responsibility and in accordance with this paragraph, to the rules of the profession and to the Bank ' s instructions.
Art. 490. Authorized commissioners designated in the joint financial companies referred to in section 489 assess the adequacy of the risk management procedures, internal controls, and the administrative and accounting organization referred to in sections 464 to 466 and communicate their findings in this matter to the Bank.
Art. 491. Authorized commissioners designated in a corporation referred to in section 489 report to the Bank on the results of the limited examination of the statements transmitted by the mixed financial company in accordance with section 463 to the Bank at the end of the first social semester, confirming that they are not aware of the facts of which it appears that these periodic reports arrested at the end of the semester, have not, in any significant respects, been prescribed by law
They further confirm that these statements, which were finalized at the end of the semester, are, in all significant respects, compliant with accounting and inventories, in that they are:
1° complete, i.e. they mention all the data in the accounting and in the inventories on which they are established, and
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
They also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared, with respect to the accounting data contained therein, by application of the accounting and evaluation rules that presided over the preparation of the periodic reports for the last fiscal year. The Bank may specify which periodic reports are concerned.
Art. 492. The registered commissioners designated in a business referred to in section 489 also report to the Bank on the results of the control of the periodic reports transmitted by the mixed financial company to the Bank at the end of the social year, confirming that they are, in all significant respects, established in accordance with the requirements provided by or under the law and the Bank's instructions.
In addition, they confirm that these statements that have been finalized at the end of the accounting year are, in all significant respects, compliant with accounting and inventories, in that they are:
1° complete, i.e. they mention all the data in the accounting and in the inventories on which they are established, and
2° correct, i.e. they correspond exactly with the accounting and with the inventories on which they are established.
They also confirm that the year-end periodic reports were prepared, for the accounting data contained therein, by applying the accounting and evaluation rules preside over the preparation of the annual accounts.
The Bank may specify which states are in this case.
Art. 493. The commissioners designated in a business referred to in section 489 shall, upon request, make special reports to the Bank on the aspects referred to in sections 457 to 460 and sections 490 to 492.
Art. 494. As part of their mission to the mixed financial company, or a revisoral mission to a joint financial company-related company, the certified commissioners report to the Bank as soon as they see decisions, facts or, if any, changes:
1° that significantly influence or influence the situation of the group from the financial angle or from the angle of its administrative and accounting organization or internal control;
2° that may constitute a violation of the Corporations Code, the statutes or this Act and the orders and regulations made for its execution with respect to the mixed financial company;
3° that are likely to result in refusal or reservation to certify consolidated annual accounts.
Art. 495. The costs for the preparation of these reports are borne by the mixed financial company, the insurance company or the reinsurance of Belgian law or both.
Art. 496. Authorized commissioners communicate to the executives of the insurance or reinsurance company the reports they send to the Bank in accordance with section 494. These communications are subject to section 306.
They transmit to the Bank copies of the communications they address to these leaders, which deal with issues of interest to the Bank's control.
Art. 497. No civil, criminal, or disciplinary action may be brought or any professional sanction imposed against registered commissioners who have proceeded in good faith to disclose information under section 495.
Art. 498. When the parent is a joint financial company referred to in section 451, paragraph 1^er, 2°, whose seat is established in another Member State and included in the complementary monitoring of the conglomerates exercised by the Bank, the mission defined in Articles 489, § 2, to 494 is carried out by analogy by the authorized commissioner designated with a comparable task with this mixed financial company. In the absence of such a commissioner, the mission referred to is carried out by the Commissioner-designate to a regulated Belgian law company that is under the control of the Bank and is a subsidiary of the targeted joint financial company.
Art. 499. Authorized commissioners appointed to insurance or reinsurance companies, or joint financial companies of Belgian law in accordance with sections 488 to 498, have access to and may be aware of all documents and documents emanating from the subsidiaries taken up in the financial conglomerate and from the companies referred to in section 483, § 1^erParagraph 2.
The provisions of section 35 of the Act of 22 February 1998 apply with respect to the information they have received pursuant to paragraph 1^er
Section IV. - Other financial groups
Art. 500. If, in cases other than those referred to in Article 451, a company has a stake in, or another bond in capital with, one or more other enterprises, or, apart from any participation or other bond in capital, has a significant influence on such enterprises, and that one of the above-mentioned companies is a company of insurance or reinsurance of Belgian law, the Bank may, in its capacity as competent authority under other, decide in consultation The relevant authorities jointly define the modalities of this complementary monitoring of the conglomerates, and in particular determine the articles of this Chapter concerning the supplementary monitoring of the conglomerates that are applicable. They shall take their decision in accordance with the objectives of the complementary monitoring of conglomerates as defined by this Chapter, and shall take into account in this context the international principles of complementary monitoring of conglomerates.
For the purposes of paragraph 1^er, it shall be satisfied with the conditions of Article 340, 2°, (a), (ii) and (iii), or (b), (ii) and (iii).
Art. 501. The Competent Authority for Complementary Monitoring of Conglomerates shall be designated by analogous application of the provisions of section 471.
If, by application of section 500, paragraph 1^er, it is decided to carry out additional monitoring of the conglomerates, the provisions of Article 453, § 2, are applicable by analogy.
Section V. Maternal enterprises established in a third country
Art. 502. The Belgian insurance or reinsurance companies whose parent company is a regulated company at the head of a financial conglomerate or a joint financial company with its head office in a third country, and which are not already subject to or are not yet within the scope of the complementary monitoring of conglomerates in accordance with this Chapter, carried out by the Bank or by another competent authority, are subject to further monitoring of the conglomerate.
Art. 503. § 1^er. The Bank shall verify whether the insurance or reinsurance companies referred to in section 502 are subject to control exercised by a competent authority of a third country, equivalent to the supplementary monitoring of conglomerates in accordance with the provisions of this Chapter.
It does so on its own initiative or at the request of the parent companies referred to in section 502 or the insurance or reinsurance company of Belgian law.
Before making its decision, the Bank shall consult with the other competent authorities on whether or not the control is equivalence.
With respect to this equivalency, the Bank shall take into account the guidelines established by the joint committee in accordance with Regulation 1093/2010, Regulation 1094/2010 or Regulation 1095/2010 on the supplementary monitoring of conglomerates in accordance with Directive 2002/87/EC:
§ 2. If, by analogous application of the provisions of Article 10 of Directive 2002/87/EC, another competent authority that the Bank is the coordinator, verification and consultation shall be carried out by that other competent authority, the Bank may communicate its findings and views on the equivalence referred to in paragraph 1^er.
Where the Bank has a different opinion as to a decision made by another competent authority in accordance with paragraph 1^erSection 19, as the case may be, of Regulation 1094/2010, Regulation 1093/2010 or Regulation 1095/2010 applies.
§ 3. If the procedure provided for in paragraphs 1^er and 2 makes it possible to conclude that there is no equivalence, the insurance or reinsurance companies concerned are subject to further monitoring of conglomerates by similar application of the provisions of paragraph 1^erParagraph 1^er, carried out by the Bank if it is the competent authority which would be responsible for the additional monitoring of conglomerates by similar application of the provisions of Article 471.
Derogation from paragraph 1^er, the Bank may, after consultation with other relevant authorities, also decide to apply another method of adequate control, which must meet the objectives of the provisions referred to in paragraph 2, paragraph 1^er.
In particular, the Bank may require that companies of insurance or reinsurance of Belgian law and any other regulated enterprises incorporated under the law of a Member State be included in a group headed by a mixed financial company constituted under the law of a Member State, and apply the provisions of this Chapter to the financial conglomerate having at its head this mixed financial company.
In this case, the Bank shall notify the other relevant authorities and the European Commission of any decisions taken pursuant to paragraphs 2 and 3.
For the application of paragraphs 1^er at 4, the Bank concludes the necessary agreements with the relevant authorities.
PART VI. - Insurance companies
or reinsurance in difficulty or in an irregular situation
CHAPTER I^er. - Balance of rates
Art. 504. If the Bank finds or if an insurance or reinsurance company informs the Bank that the application of one of its tariffs results in or is likely to result in losses, the Bank may require that the company balance this tariff.
The balance of the tariff may include an adaptation of the coverage conditions.
By derogation from section 41 of the Insurance Act and without prejudice to the right of termination in the head of the insurance taker, the raising of a tariff applies in respect of insurance and life insurance contracts, as provided for in section 216, § 3.
Art. 505. Where the contracts referred to in section 504 consist of non-professional health insurance contracts within the meaning of section 202 of the Insurance Act, the Bank shall consult with the FSMA before making its decision.
FSMA shall notify the Bank within one month of receipt of the notice request. If there is no notice within this period, it is considered that it has no observation to make.
Art. 506. The raising of a tariff is not subject to the obligation to report price increases under the Act of 22 January 1945 on economic regulation and prices and its enforcement orders.
Art. 507. The Bank informs the FSMA and the Commission of the prices of the decision to raise the rate of an insurance company.
The Bank also publishes an extract of the decision to the Belgian Monitor indicating the percentage of the recovery allowed.
CHAPTER II. - Recovery measures
Section I^re. - Binding measures
Art. 508. § 1^er. When the Bank finds that an insurance or reinsurance company does not operate in accordance with the provisions of this Act, the orders and regulations made for its execution or the enforcement measures of Directive 2009/138/EC, or that it has elements indicating that this undertaking may no longer operate in accordance with these provisions in the next 12 months, the Bank sets out the time limit within which it is to be remedied.
§ 2. As long as the insurance or reinsurance company has not been remedied to the situation referred to in subsection 1^er, the Bank may, at any time:
1° imposing the application of specific rules for valuation or value adjustment for the calculation of the requirements of equity provided for by or under this Act or by the enforcement measures of Directive 2009/138/EC;
2° limiting or prohibiting the distribution of profit and dividend participations or the allocation of distributed beneficiary participations, after consultation with the MSDS;
3° limit or prohibit any distribution of dividends or any payment, including interest, to shareholders or holders of base equity instruments, to the extent that the suspension of the resulting payments does not result in the opening conditions of a liquidation procedure under the provisions of the Bankruptcy Act of 8 August 1997;
4° imposing total or partial reserve of distribuable profits;
5° to limit the variable remuneration component of persons covered by the compensation policy to a percentage of the benefit;
6° impose specific liquidity standards, more restrictive than those defined by regulations, if any, adopted under this Act, including limitations on maturity asymmetries between the assets and liabilities of the insurance or reinsurance undertaking;
7° to impose that the insurance or reinsurance company reduces the risk inherent in certain activities or products or its organization, if any by imposing the transfer of all or part of its activities or network;
8° impose standards for concentration of risks or limiting exposures applicable to assets more restrictive than those defined by or under this Act;
9° impose an additional obligation of information (reporting) or impose a higher frequency of information (reporting) than that provided for by or under this Act or by the enforcement measures of Directive 2009/138/EC, including in respect of risks, equity or liquidity positions;
10° to require the publication of more comprehensive and more frequent information than those provided for by or under this Act or by the enforcement measures of Directive 2009/138/EC;
§ 3. Where the Bank considers that the measures taken by the insurance or reinsurance company within the time limit set out in subsection 1^er to remedy the situation found satisfactory, it shall, in the manner it determines, lift all or part of the measures decided under paragraph 2.
Section II. - Implementation of the recovery plan
Art. 509. As long as the insurance or reinsurance company did not remedy the situation referred to in Article 508, § 1^er, and without prejudice to the measures referred to in paragraph 2 of that Article, the Bank may at any time, and in accordance with the terms and conditions it determines, require that the enterprise implement all or part of the recovery plan developed under section 204.
Section III. - Recovery Strategy
and short-term funding plan
Art. 510. § 1^er. As soon as the Bank finds that its required solvency capital is no longer in compliance with the requirements set out in section 151 or that it may no longer be in the next three months, any insurance or reinsurance company shall immediately inform the Bank.
Within two months of the finding referred to in paragraph 1^er or the notification by the Bank that it has made such a finding, the company submits to the Bank, for approval, a realistic recovery strategy to restore the level of eligible equity covering the required solvency capital or to reduce its risk profile in order to ensure the compliance of the solvency capital required within a period not exceeding six months. The Bank may, if it considers it necessary, extend this three-month period.
§ 2. The recovery strategy includes at least three subsequent financial years, a detailed description of the following, or justifications thereof:
1° a forecasting estimate of management costs, including overhead costs and commissions;
2° an estimate of income and expenditure for both direct and reinsurance transactions and transfers;
3° a forecast balance;
4° an estimate of the financial resources to be used for the coverage of technical provisions, as well as the required solvency capital and the minimum capital requirement;
5° the general policy of subscription and pricing;
6° the general policy on reinsurance or retrocession;
7° the relevant provisions of the recovery plan established pursuant to Articles 204 to 206.
The Bank may require any additional information or justification that it considers necessary to assess the plan.
§ 3. In the event of an exceptional unfavourable situation as referred to in Article 138, paragraph 4, of Directive 2009/138/EC and declared as such by the IPOA, the Bank may extend, for the affected company, the time limit referred to in paragraph 1^er, paragraph 2, of a maximum duration of seven years, taking into account all relevant factors, including the average duration of technical provisions.
The insurance or reinsurance company concerned submits to the Bank every three months an interim report outlining the measures taken and the progress made to restore the level of eligible equity corresponding to the solvency capital required or to reduce its risk profile in order to ensure the compliance of the solvency capital required.
The extension referred to in paragraph 1^er is withdrawn when the interim report shows that no significant progress has been made by the company in relation to the objectives referred to in paragraph 2.
Art. 511. § 1^er. As soon as it finds that its minimum required capital is no longer in accordance with the requirements of section 189 or that it may no longer be required in the next three months, any insurance or reinsurance company shall immediately inform the Bank.
In the month of the finding referred to in paragraph 1^er or the notification by the Bank that it has made such a finding, the company submits to the Bank, for approval, a realistic short-term funding plan to restore, within a period not exceeding three months, the eligible base funds at least at the level of the required capital or to reduce its risk profile to ensure compliance with the required minimum capital.
§ 2. The short-term funding plan includes at least, for the following three fiscal years, a detailed description of the elements referred to in section 510, § 2, and the justifications for the short-term funding plan.
Art. 512. As long as the recovery strategy referred to in section 510 or the short-term funding plan referred to in section 511 is under way and the Bank considers that the rights of insurance licensees, insured persons or beneficiaries or the respect for rights arising from reinsurance contracts are threatened, it refrains from issuing solvency certificates referred to in section 109, paragraph 1^erand 116, paragraph 1^er.
Section IV. - Limitation of the power to dispose of assets
Art. 513. Without prejudice to other measures provided by or under the law, the Bank may restrict or prohibit the free disposition of assets of an insurance or reinsurance undertaking, regardless of location, in the following cases:
1° if the company does not comply with the provisions of articles 124 to 139 with respect to technical provisions;
2° in the exceptional circumstance where, when the company has submitted or is required to submit a recovery strategy under section 510, the Bank is of the opinion that the financial situation of the company will deteriorate further;
3° if the minimum required capital is no longer in accordance with the provisions of section 189;
4° if, despite the implementation of a recovery strategy or a short-term financing plan, the solvency of the company continues to deteriorate or the interests of insurance licensees, insured persons or beneficiaries of insurance contracts or the respect of rights arising from reinsurance contracts are threatened.
Art. 514. § 1^er. The prohibition of the free disposition of assets located in Belgium pursuant to Article 513 is governed by the following provisions:
1° Without such a communication constitutes a pre-emption, the company shall provide the Bank with a complete inventory of its assets, including assets other than those held to cover technical provisions. Any act of disposition or allocation of such assets shall be subject to the prior authorization of the Bank.
2° For assets subject to registration, the Bank orders the depositary agency to block the account. For other assets likely to be deposited, the Bank directs the company to deposit the immediate deposit on a special account materializing the blocking of assets open to a credit institution, a stock exchange corporation or a foreign investment company whose accreditation covers the receipt of assets, subject to the right of a Member State.
Depositary organizations may only return the assets they hold on behalf of the insurance or reinsurance company on the basis of the Bank's authorization. It shall inform depositary bodies of their obligations under this article. These organizations are liable for losses of value resulting from non-compliance with their obligations under this paragraph.
3° The amounts paid in Belgium in execution of the claims of the insurance or reinsurance company are paid on a special account and blocked from a Belgian credit institution or under the law of a Member State, and follow the same plan as the assets referred to in the 1st.
4° With regard to other non-reposable assets, the King may, on the advice of the Bank, set the rules on the precautionary measures to which they may be subjected.
5° Real estate assets are subject to a legal mortgage for the benefit of all insurance or reinsurance creditors.
Registration is required by the Bank under the conditions set out in sections 82 to 87 of the Mortgage Act.
Registration is terminated or reduced by the Bank's consent under the conditions set out in sections 92 to 95 of the Mortgage Act.
The fees and fees for registration, write-off and reduction are borne by the company concerned.
6° The Bank may, by registered letter addressed to mortgage preservatives, object to the cancellation or reduction of a third party mortgage for the benefit of the insurance or reinsurance business.
§ 2. Securities that are subject to the provisions of paragraph 1^er are elusive, except for the benefit of creditors with rights acquired in good faith under a formality completed prior to the assignment of these values as representative values.
Art. 515. The Bank shall inform the authorities of the control of the Member States concerned of its intention to restrict or prohibit the free disposition of the assets.
The Bank may request the control authorities of the Member States in whose territory the assets of the company are located to take the necessary measures to ensure the effectiveness of the restriction or the prohibition of the free disposition of these assets. The Bank designates the assets covered by these measures.
Art. 516. At the request of a supervisory authority of a Member State, the Bank may restrict or prohibit, in accordance with Article 513, the free disposition of assets belonging to an insurance or reinsurance company under the law of that State that are located in Belgian territory and that that authority has designated.
Section V. - Extraordinary relief measures
Art. 517. § 1^er. Without prejudice to the other provisions provided by or under this Act, where the Bank finds that an insurance or reinsurance company does not comply or cease to comply with the measures adopted pursuant to Article 508, § 2, or that at the end of the period established under Article 508, § 1^er, it did not remedy the situation, the Bank may:
1st appoint a special commissioner.
In this case, the written, general or special authorization of the company is required for all acts and decisions of all the bodies of the company and those of the persons responsible for the management; However, the Bank may limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all corporate bodies, including the General Assembly, any proposal that he considers appropriate.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the company or third parties.
If the Bank has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions submitted to the Bank's authorization, the acts and decisions taken without that authorization while required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization of the Special Commissioner is null unless the Special Commissioner ratifies it.
The remuneration of the Special Commissioner is fixed by the Bank and supported by the company.
The Bank may designate an alternate Commissioner;
2° enjoin the replacement of all or part of the members of the legal board of directors, the steering committee and/or, if any, the persons responsible for the effective management of the insurance or reinsurance company, within a time limit fixed by the board and, in the absence of such replacement within that time limit, substitute for all the administrative and management bodies of the undertaking one or more directors or managers The Bank publishes its decision to the Belgian Monitor.
Where circumstances so warrant, the Bank may appoint one or more provisional directors or managers without prior injunction to replace any or all of the company's executives.
By way of the Bank's authorization, the director(s) or provisional manager may convene a general meeting and establish its agenda.
The Bank may request, in accordance with the terms and conditions it determines, that the director(s) or provisional manager report to the Bank on the financial situation of the undertaking and on the measures taken in the course of their mission, as well as on the financial situation at the beginning and end of the mission.
The remuneration of the director(s) or provisional manager(s) is fixed by the Bank and supported by the company concerned.
The Bank may, at any time, replace the director(s) or provisional manager(s), either on its own motion or at the request of a majority of shareholders or associates where the shareholders justify that the management of the persons concerned no longer has the necessary guarantees;
3° enjoin the insurance or reinsurance company to convene, within the time it sets, a general meeting of shareholders, of which it sets the agenda;
4° suspend, for the duration it determines, the direct or indirect exercise of any or part of the activity of the enterprise or prohibit that exercise. This suspension may, to the extent determined by the Bank, involve the total or partial suspension of the performance of the existing contracts, without such suspension being able to exceed two months or constitute a cause for non-payment of the premiums due before the date of the suspension measure.
The members of the administrative and management bodies and those responsible for the management who carry out acts or make decisions in violation of the suspension or prohibition are responsible in solidarity with the resulting harm to the company or third parties.
If the Bank has issued the suspension or prohibition to the Belgian Monitor, the actions and decisions against it are null and void;
5° enjoin the insurance or reinsurance company to assign any partner rights it holds;
6° restrict or prohibit the free disposition of the assets of the insurance or reinsurance company, with sections 514 and 515 applicable;
7° enjoin the insurance or reinsurance company to transfer a portion or all of its activities, including all or part of its portfolio thus involving the assignment of rights and obligations arising out of insurance or reinsurance contracts, accrued or in progress, as well as assets held in respect of these obligations within the time limit set by the Bank. In this case Articles 102 to 106 and Article 547, § 2, 1°, are applicable;
8° revoke the approval, for one, several or all of the insurance branches for which the insurance company is registered or for all or part of the activities for which the reinsurance company is registered.
§ 2. Notwithstanding the conditions of application of paragraph 1^erin the event of extreme emergency or where the safeguarding of the rights of insurance creditors requires, the Bank may adopt the measures referred to in paragraph 1^er without a time limit being previously set.
§ 3. Bank decisions referred to in paragraph 1^er deviate their effects in respect of the undertaking on the date of their notification to the undertaking by registered letter or with acknowledgement of receipt and, in respect of third parties, on the date of their publication or formalities in accordance with the provisions of paragraph 1^er.
§ 4. The Bank may also adopt the measures referred to in this section in the event that an insurance or reinsurance company has obtained an approval by means of false statements or by any other irregular means.
§ 5. Section 508, as well as paragraph 1^er, 1°, 2°, 4° and 6° and paragraphs 2 and 3 of this article are applicable in case the Bank is aware of the fact that an insurance or reinsurance company has established a particular mechanism for the purpose or effect of promoting tax evasion by third parties.
§ 6. In case of a serious and systematic violation of the rules referred to in Article 45, § 1^erParagraph 1^er, 3°, or § 2, of the law of 2 August 2002, the Bank may revoke the approval upon request of the FSMA in accordance with the procedure and procedure established by section 36bis of that Act.
§ 7. The Court of Commerce shall decide on the application of any interested person, the invalidity provided for in paragraph 1^er, 1°, and 4°.
The nullity action is directed against the company. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the act or decision suspended or annulled has been published, the suspension order and the judgment pronouncing nullity are published in the same forms.
Where invalidity is likely to affect the rights acquired in good faith by a third party in respect of the business, the court may declare nullity in respect of such rights without prejudice to the right of the applicant to damages and interests if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
Art. 518. The Bank shall inform FSMA of the decisions taken pursuant to Articles 504 to 517 and shall keep the MSDS informed of the action taken against these decisions.
It also informs the supervisory authorities of the other Member States in which the insurance or reinsurance company has established branches or operates under the free provision of services.
CHAPTER III. - Measures to safeguard the financial system
Section I^re. - Acts of disposition
Art. 519. When one of the situations set out in Article 508, § 1^er, is likely to affect the stability of the Belgian or international financial system due to the volume of the commitments of the concerned insurance or reinsurance company or its role in the financial system, the King may, by order deliberately in the Council of Ministers, either at the request of the Bank or by initiative, after the Bank's opinion, stop any act of disposition, in favour of the State or any other person, Belgian or private act, of public law
1° of assets, liabilities or one or more branches of activity and more generally, all or part of the rights and obligations of the insurance or reinsurance enterprise concerned;
2° of securities or shares, whether or not representative of the capital, conferring or not a voting right, issued by the insurance or reinsurance company.
Art. 520. The Royal Order pursuant to section 519 defines the compensation payable to the owners of the property or to the holders of the rights under the notice provided for in the Order. If the assignee designated by the Royal Order is a person other than the State, the price due by the assignee under the agreement entered into with the State shall be paid to such owners or holders as compensation, according to the distribution key defined by the same order.
Art. 521. The royal decree taken under section 519 is notified to the insurance or reinsurance company concerned. The measures provided for by this Order are also published by notice to the Belgian Monitor. This notice is also published on the company's website.
As soon as the notification referred to in paragraph 1 was received^er, the insurance or reinsurance company loses the free disposition of the assets covered by the provisions of the Royal Decree.
Art. 522. The acts referred to in section 519 shall not be subject to inopposability under sections 17, 18 or 20 of the Bankruptcy Act of 8 August 1997 or section 1167 of the Civil Code.
Notwithstanding any conventional provision to the contrary, the measures adopted by the King pursuant to Article 519 may not have the effect of modifying the terms of a agreement between the insurance or reinsurance company and one or more third parties, or of ending such a convention, or of giving no party the right to unilaterally terminate it.
Inoperative with respect to the measures ordered by the King pursuant to section 519, any statutory or conventional clause of approval or pre-emption, any option to purchase a third party, as well as any statutory or conventional clause preventing the modification of control of the insurance or reinsurance undertaking.
The King is empowered to make any other necessary arrangements to ensure the effective implementation of the measures taken under section 519.
Art. 523. The civil liability of persons, acting on behalf of the State or at its request, acting in the course of the operations referred to in this Section, incurred as a result of or in relation to their decisions, acts or behaviours in these operations is limited to cases of dol and heavy misconduct in their head.
The existence of a heavy fault is appreciated taking into account the specific circumstances of the case of a species, including the urgency to which these people were confronted, financial market practices, the complexity of the case of a species, threats to the protection of savings and the risk of harm to the national economy that would result in the discontinuity of the insurance or reinsurance enterprise concerned.
Art. 524. All disputes to which the acts referred to in this Section, as well as the responsibility referred to in Article 523, could be brought before the exclusive jurisdiction of the Belgian courts, which will apply exclusively to Belgian law.
Art. 525. For the purposes of the Collective Labour Agreement No. 32bis entered into on June 7, 1985 in the National Labour Council, concerning the maintenance of workers' rights in the event of a change of employer as a result of a contractual transfer of business and regulating the rights of workers resumed in the event of the resumption of the assets after bankruptcy, the acts performed under section 519, 1°, are considered as acts performed by the insurance company itself.
Art. 526. Without prejudice to the general principles of law that may be invoked, the board of directors of the insurance or reinsurance company may waive statutory restrictions to its management powers when one of the situations set out in section 508, § 1^erParagraph 1^er, is likely to affect the stability of the Belgian or international financial system due to the volume of the commitments of the concerned insurance or reinsurance company or its role in the financial system. The Board of Directors shall prepare a special report justifying the use of this provision and setting out the decisions taken; this report is transmitted within two months to the General Assembly.
Section II. - Judicial oversight
Art. 527. For the purposes of this Section and the orders and regulations made for its execution, it shall be understood by:
1st Royal Decree: the Royal Decree deliberated in the Council of Ministers under Article 519;
2° the act of disposition: the decision of the assignment or the other act of disposition provided for by the royal decree;
3° the court: the court of first instance in Brussels;
4° the owners: natural or legal persons who, on the date of the royal decree, are the owners of the assets, titles or shares, or holders of the rights, subject to the act of disposition;
5° the third-party-holder: the natural or legal person other than the Belgian State who, under the Royal Decree, is called to acquire the assets, titles or shares, or rights, subject to the act of disposition;
6° compensatory allowance: the compensation provided by the Royal Decree in favour of the owners in return for the act of disposition.
Art. 528. Any act of disposition is subject to pre-trial review by the court in accordance with this Section.
The Royal Decree comes into force on the day of publication to the Belgian Monitor of the judgment referred to in Article 534.
Art. 529. § 1^er. The Belgian State shall file with the court office an application stating that the act of disposition is in accordance with the law and that the compensatory allowance appears to be fair in the light of the criteria provided for in Article 533, § 4.
§ 2. In case of invalidity, the request contains:
1° the identity of the insurance or reinsurance company concerned;
2°, if applicable, the identity of the third-party concessionaire;
3° the justification for the act of disposition under the criteria set out in section 519;
4° the compensatory allowance, the basis on which it was determined, particularly with respect to the variable part that would compose it and, where applicable, the distribution key between the owners;
5° where applicable, the authorizations of public authorities required and all other suspensive conditions to which the act of disposition is subordinate;
6° where applicable, the price agreed with the third-party-holder for the assets, securities or shares subject to the disposition and the mechanisms for the revision or adjustment of that price;
7° the indication of day, month and year;
8° the signature of the person representing the Belgian state or his lawyer.
A copy of the Royal Order is attached to the request.
§ 3. The provisions of Title Vbis of Book II of Part IV of the Judicial Code, including articles 1034bis to 1034sexies, are not applicable to the application.
Art. 530. The procedure introduced by the application referred to in section 529 excludes any other appeals or actions, whether concurrent or future, against the royal order or against the provision, except for the application referred to in section 537.
The filing of the application shall not apply to any other procedure, directed against the royal order or the act of disposition, which would have previously been introduced and would still be pending before another judicial or administrative court.
Art. 531. § 1^er. Within 24 hours of the filing of the application referred to in section 529, the President of the Court shall, by order, fix the day and time of the hearing referred to in section 533, to be held within seven days after the filing of the application. This order reproduces all the references provided for in Article 529, § 2.
§ 2. The order is notified by the Registry by judicial fold to the Belgian State, to the insurance or reinsurance company concerned and, where applicable, to the third-party concessionaire. It is simultaneously published in the Belgian Monitor. This publication shall be notified to other owners, if any, that the insurance or reinsurance company concerned.
Within 24 hours of the notification, the insurance or reinsurance company also publishes the order on its website.
Art. 532. The persons referred to in Article 531, § 2, may, until the judgment referred to in Article 534, consult the petition referred to in Article 529 free of charge and its annexes to the Registry.
Art. 533. § 1^er. At the hearing set by the president of the court and at any subsequent hearings that the court considers useful to fix, the court hears the Belgian State, the insurance or reinsurance company concerned, if any the third-party-holder and the owners who voluntarily intervene in the proceedings.
§ 2. By derogation from the provisions of Chapter II of Book II of Part IV of the Judicial Code, no person other than those referred to in the preceding paragraph may intervene in the proceedings.
§ 3. After hearing the submissions of the parties, the court shall verify whether the provision is in accordance with the law and whether the compensatory allowance is fair.
§ 4. The court shall take into account the specific situation of the insurance or reinsurance company concerned at the time of the adoption of the provision, including its financial situation as it was or would have been if the public aids, of which it was directly or indirectly, had not been granted. For the purposes of this paragraph, public aids, advances in emergency liquidity and guarantees granted by a legal entity of public law are considered.
§ 5. The court shall rule by a single judgment which shall be rendered within twenty days after the hearing appointed by the president of the court.
Art. 534. The judgment by which the court finds that the act of disposition is in accordance with the law and that the compensatory allowance appears to be fair, is translative of the property of the assets, titles or shares subject to the act of disposition, but subject to the suspensive conditions referred to in 529, § 2, 5°.
Art. 535. The judgment referred to in section 534 is not subject to appeal or opposition or third-party opposition.
It is notified by judicial fold to the Belgian State, to the insurance or reinsurance company concerned as well as, if applicable, to the third-party concessionaire, and is simultaneously published by extract to the Belgian Monitor.
This publication shall be notified to other owners, if any, that the insurance or reinsurance undertaking concerned, and shall prevail against third parties, without any other formality.
Within 24 hours of the notification, the insurance or reinsurance company concerned also publishes the judgment on its website.
Art. 536. Following the notification of the judgment referred to in Article 534, the Belgian State or, where appropriate, the third-party-holder shall deposit the compensatory allowance to the Caisse des dépôts et consignations, without any formality being required in this regard.
A notice confirming the fulfilment of the suspensive conditions referred to in Article 529, § 2, 5°, is published in the Belgian Monitor by the care of the Belgian State.
Upon the publication referred to in paragraph 2, the Caisse des dépôts et consignations is required to provide to the owners, in accordance with the terms of the King's order, the amount of the compensatory allowance recorded, without prejudice to the eventual arrests or objections regularly made on the amount recorded.
Art. 537. Owners may file an application for a review of the compensatory allowance with the court, which is only two months from the date of publication to the Belgian Monitor of the judgment referred to in Article 534. This application does not affect the transfer of ownership of the assets, securities or shares subject to the disposition.
The request for review is, for the surplus, governed by the Judicial Code. Article 533, § 4, is applicable.
PART VII. - From the end of the accreditation
CHAPTER I^er. - Radiation of accreditation
Section I^re. - Waiver of accreditation
Art. 538. § 1^er. An insurance or reinsurance company approved under this Act has the power to waive all or part of its approval.
§ 2. The application for waiver is addressed to the Bank and indicates the insurance and reinsurance branches for which the waiver is requested. The application is accompanied by a plan specifying how the company intends to proceed with the liquidation of its commitments resulting from insurance or reinsurance contracts under the activities for which the renouncing of the licence is requested.
If such a plan fails or considers that the plan referred to in paragraph 1^er fails to provide sufficient guarantees in respect of the protection of insurance or reinsurance creditors, the Bank may take any measures to ensure that the company's insurance or reinsurance commitments are properly liquidated, including any measures to safeguard the rights of insurance or reinsurance creditors. These measures include measures provided for in sections 509 to 517.
Where it considers that the plan referred to in paragraph 1^er presents sufficient guarantees in respect of the protection of insurance or reinsurance creditors, the Bank removes the approval for all or part of the branches and activities for which the waiver is requested.
§ 3. The Bank sets the date for the effects of the delisting under this section.
When it comes to an insurance company, the Bank consults with the MSDS on the presence of sufficient guarantees for the protection of insurance creditors, before setting this date. FSMA shall notify the Bank no later than twenty days from the date on which it received the notice.
§ 4. The cancellation following the waiver is posted on the Bank's website.
§ 5. The insurance or reinsurance company whose approval has been terminated under this section shall provide the Bank with an update of the plan referred to in paragraph 2, paragraph 1^er on a case-by-case basis, including frequency and content, by the Bank.
§ 6. Insurance or reinsurance companies whose approval has been terminated under this section are listed under a specific section of the list referred to in section 31. Any modification of this entry shall be brought to the attention of the supervisory authorities of the other Member States.
Section II. - Radiation for non-activity exercise
Art. 539. § 1^er. The Bank may terminate by decision notified by registered letter or with acknowledgement of receipt, the approval of insurance or reinsurance companies
1° that did not commence their activities within twelve months of the accreditation;
2° that have ceased to operate for more than 6 months;
§ 2. Paragraph 1^er is applicable to the insurance branch(s) or the reinsurance activity(s) concerned by the situation referred to in subsection 1^er.
Section III. - Radiation of right
Art. 540. The approval of insurance or reinsurance companies is de-registered in full law with respect to all insurance branches and/or reinsurance activities in the event of:
1° bankruptcy against them;
2° voluntary or judicial dissolution within the meaning of articles 181 and 182 of the Code of Companies.
CHAPTER II. - Revocation of accreditation
Art. 541. Without prejudice to the revocation of the approval made under Article 517, § 1^er, 8°, the Bank revokes the approval for all insurance or reinsurance branches and activities where an insurance or reinsurance company no longer has the required minimum capital and the Bank considers that the short-term financing plan submitted pursuant to section 511 is manifestly insufficient or that the enterprise concerned does not comply with the plan approved within three months of the minimum determination of the non-capital required.
Art. 542. When the approval is revoked under Article 517, § 1^er, 8°, or section 541 for all insurance and/or reinsurance branches, the company is dissolved in full right and enters liquidation in accordance with sections 183 et seq. of the Corporate Code.
CHAPTER III. - Common provisions
the different cases of loss of approval
Art. 543. The renunciation of the approval, deletion or revocation of the licence, total or partial, prohibits the approval of new contracts in the insurance branches and reinsurance activities affected by the loss of licence.
In accordance with paragraph 1^er, and in section 540, sections 187 of the Corporate Code and 46 of the Bankruptcy Act of 8 August 1997 only allow the execution of insurance or reinsurance contracts in progress, excluding the conclusion of any new insurance or reinsurance contracts.
Art. 544. The Bank shall inform FSMA and the supervisory authorities of other Member States where the insurance or reinsurance company carries out activities of the loss of the licence.
It calls on the latter to take appropriate measures to prevent the insurance or reinsurance company from beginning new operations in their territory.
Art. 545. Insurance or reinsurance companies that no longer have an approval under Article 517, § 1^er, 8°, or the provisions of this Title, shall remain subject to this Act and to the decrees and regulations made for its execution as well as to the provisions of the enforcement measures of Directive 2009/138/EC until all insurance or reinsurance contracts are liquidated, as well as all related obligations, unless the Bank exempts them from certain provisions.
Art. 546. The Bank may impose on the undertakings referred to in this Title, if any with the assistance of the supervisory authorities of other Member States, any measures to safeguard the rights of insurance licensees, insured persons and beneficiaries of insurance and reinsurance contracts.
In particular, it may take all measures referred to in Part IV, in particular those referred to in Article 517, § 1^er, without the prior fixing of a period required.
In case of transfer imposed on the basis of Article 517, § 1^er, 7°, the Bank can support its measurement of an adaptation, for the future, of the rate of return guaranteed by life insurance contracts, without however that such adaptation can lead to a lower rate of return than that offered in Belgium by the insurance market on the day of the Bank's decision. The Bank consults with FSMA on compliance with the above-mentioned rate of return.
The measures referred to in paragraph 1^er, also include the Bank's ability to terminate insurance and reinsurance contracts on the terms and time it determines.
Art. 547. § 1^er. The Bank may only adjust the rate of return referred to in section 546, paragraph 3, or terminate contracts as provided for in section 546, paragraph 4, if, in the absence of these measures, the fate of the insurance creditors concerned would be less favourable.
§ 2. For the purposes of, inter alia, paragraph 1^er, the measures referred to in section 546, in particular the transfer of portfolio, if any accompanied by a reduction in return rates, shall meet the following conditions:
1° the transfer of portfolio, in particular the determination of assets that accompany the assignment of insurance commitments cannot affect equality between insurance creditors. This equality requires:
(a) by separate management, a distribution of the assets referred to in section 194 prorated to the obligations assigned;
and surplus if necessary,
(b) a distribution of the other assets on the prorated basis of the commitments, not covered by (a), in relation to all insurance commitments of the insurance company,
such as these assigned commitments are assessed at the time of assignment.
2° it cannot be terminated insurance contracts or a reduction in rates can only be ordered in the case that continuity of insurance contracts would lead to a deficit liquidation. The rate reduction is, in addition, carried out in such a way that all insurance creditors under the same separate management share the loss resulting from the decrease in rates.
If notwithstanding paragraph 2, 2°, a winding-up bonus had to appear, its amount is exclusively distributed to insurance creditors on the prorated basis of the amounts to which they would have been entitled in case of continuity of their contracts.
Art. 548. In addition to the similar measures provided for in the enforcement measures of Directive 2009/138/EC, the Bank may order limitation and prohibitions of reimbursement and payment, capital or interest, with respect to the holders of basic equity instruments, pending measures to safeguard the rights of insurance creditors adopted under sections 546 and 547.
The use of the prerogative referred to in paragraph 1^er is limited to the situations referred to in section 542 and takes into account the situation of the creditors of the insurance company as a result of the application of sections 643 and 644.
Art. 549. In the event of a deterioration in the financial situation of an insurance or reinsurance company referred to in this Title, the Bank may, by derogation from section 6 of the Bankruptcy Act of 8 August 1997, initiate a summons to the Commercial Court.
Sections 545 to 548 are not applicable if an insurance or reinsurance company is registered in bankruptcy.
LIVRE III. - ENTREPRISES D'ASSURANCE
AND REASSURANCE OF RIGHT AND RIGHT
PART I^er. - Insurance companies or
the right of another Member State
CHAPTER I^er. - Exercise of activities in Belgium
by insurance companies under the law of another Member State
Section I^re. - Access to activity
Sub-section I^re. - Opening branches
Art. 550. § 1^er. Insurance companies under the right of another Member State, which are authorized under their national right to exercise in their State of origin insurance activities may, by way of establishment of branches, carry out these activities in Belgium, provided that the control authorities of that State of origin have communicated to the Bank the file containing, mutatis mutandis, the information elements referred to in Article 108, § 1^er, paragraph 2, 1°, to 4°, as well as additional information referred to in section 109.
§ 2. This file also includes:
1° in the event that the insurance company intends to have the occupational accident risks covered by its branch:
(a) evidence that the insurance company has informed of the proposed activity of the Industrial Accidents Fund;
(b) the evidence that the insurance company has committed to the Industrial Accidents Fund to establish, at the first request of the said Fund, a bank guarantee as referred to in section 60 of the Industrial Accidents Act of 10 April 1971 to provide for the repair of occupational accidents in cases where the insurance company has remained in default.
2° in the case where the insurance company intends to practise the compulsory insurance of liability for self-propelled land vehicles, excluding the liability of the carrier, a declaration that the company became a member of the Belgian Common Guarantee Fund and the Belgian Bureau.
Art. 551. The Bank shall have a period of two months from the receipt of the information referred to in Article 550 to indicate to the control authorities of the member State of origin of the undertaking concerned, the provisions of general interest referred to in Article 564.
Art. 552. The activities authorized in the head of the branch may begin in Belgium from the date on which the control authority of the Member State of origin has received the communication referred to in Article 551 and no later than the two-month period referred to in Article 551.
Art. 553. The Bank shall communicate to the MSDS within the period referred to in section 551 the information file referred to in section 550 and any subsequent changes to the information contained therein.
Art. 554. The insurance company that opened a branch in Belgium shall notify the Bank of any changes it intends to make to the information contained in the information file referred to in section 550 at least one month before the change is made.
Art. 555. The Bank sets out the list of insurance business branches referred to in section 550. This list and any changes made to it are published on its website.
Sub-section II. - Free service delivery
Art. 556. § 1^er. Insurance companies under the right of another Member State, which are empowered under their national right to exercise in their State of origin insurance activities, may carry out these activities in Belgium under the free provision of services, provided that the control authorities of that State of origin have communicated to the Bank the file containing the information elements referred to in Article 115, § 1^er, 1°, 2° and additional information referred to in Article 116.
§ 2. This file also includes:
1° in case the insurance company intends to cover the occupational accident risks:
(a) evidence that the insurance company has informed of the proposed activity of the Industrial Accidents Fund;
(b) evidence that the insurance company has committed to the Industrial Accidents Fund to establish, at the first request of the said Fund, a bank guarantee as referred to in section 60 of the Industrial Accidents Act of 10 April 1971 to provide for the repair of occupational accidents where the insurance company has remained in default;
(c) the name and address of the representative referred to in Article 557, §§ 2, and 3;
2° in the case where the insurance company intends to practise the mandatory liability insurance for self-propelled land vehicles, excluding the carrier's liability:
a) a statement that the company became a member of the Belgian Joint Guarantee Fund and the Belgian Bureau;
(b) the name and address of the Claims Settlement Representative referred to in Article 21 of Directive 2009/103/EC;
(c) the name and address of the representative referred to in Article 557, §§ 1^er and 3.
Art. 557. § 1^er. The insurance company which intends to practise in the free service of services the mandatory insurance of liability for self-propelled land vehicles, excluding the carrier's liability, ensures that persons applying for compensation for events occurring in Belgian territory are not placed in a less favorable situation because the company does not carry out its activity in Belgium through a branch.
To this end, the company designates a representative who has his or her home or habitual residence in Belgium and has an adequate professional honourability and expertise for the exercise of his or her mission.
This representative gathers all the necessary information in relation to the compensation files and has sufficient powers to represent the insurance company to persons who may claim compensation, including the payment of it, and to represent it or, if necessary, to make it represent, with respect to such claims before Belgian courts and authorities.
This representative also has the power to represent the insurance company before the competent Belgian authorities for the control of the existence and validity of contracts relating to the compulsory insurance of liability for self-propelled vehicles.
§ 2. The insurance company that intends to provide free service coverage for occupational accidents means a representative who responds, mutatis mutandis, to the conditions referred to in paragraph 1^er with respect to occupational accident insurance contracts.
§ 3. The role of the representative referred to in paragraph 1^er may be provided by the Claims Settlement Representative designated in accordance with Article 556, § 2, 2°, b), provided that the conditions referred to in paragraph 1^er be satisfied.
The designation by an insurance company of a representative pursuant to paragraphs 1^er or 2 does not in itself constitute the opening of a branch.
Art. 558. The insurance company may begin its activities in free service in Belgium from the date on which it was notified by the supervisory authorities of its Member State of origin of the communication to the Bank of the file referred to in Article 556.
Art. 559. The Bank shall communicate to FSMA the file referred to in section 556 and any subsequent changes to the information contained therein.
Art. 560. Any change that the insurance company intends to make to the information referred to in Article 556 is subject to the procedure provided for in this Section.
Art. 561. The Bank lists the insurance companies referred to in section 556. This list and any changes made to it are published on its website.
Section II. - Exercise of activity
Art. 562. § 1^er. The insurance companies referred to in this Chapter must comply with the conditions prescribed by or under sections 550, 556 and 557 of this Act.
§ 2. When the Bank has reasons to consider that the activities of the insurance company could affect its financial solidity, it informs the control authorities of the Member State of origin.
Art. 563. The insurance companies referred to in Articles 550 and 556 shall, in the course of their activities in Belgium, accompany their name of the mention of their State of origin and, in the case of Article 550, their head office.
Art. 564. § 1^er. The provisions of this Chapter shall not prejudice the respect, in the exercise of the insurance activities authorized in Belgium, of the legal and regulatory provisions applicable in Belgium to insurance companies and their operations for reasons of general interest.
In particular, insurance companies referred to in this Chapter may advertise for their services, by all available means of communication, in Belgium, provided that they comply with the rules established for reasons of general interest that govern the form and content of this advertisement.
The Bank shall provide the insurance companies referred to in section 550 with the provisions which, to its knowledge, are of this nature. To this end, it collects the opinion of FSMA.
The provisions of this Chapter do not further prejudice the respect, in the exercise of activities other than the insurance activities authorized in Belgium, of the applicable legal and regulatory provisions in Belgium for these activities.
§ 2. Sections 199 to 203 are applicable to insurance companies referred to in section 550.
Section III. - Control
Art. 565. In addition to their control under the legal or regulatory provisions governing their activities, the insurance companies referred to in this Chapter shall be subject to the Bank's control in respect of compliance with sections 550, 556 and 557.
Art. 566. Upon request from the Bank, insurance companies must submit all information and provide all documents for the control of compliance with the provisions referred to in section 562.
For the same purpose, the Bank may also conduct on-site inspections at the Belgian branch or take a copy of any information in possession of the insurance company branch.
As part of the control provided for in this Section, insurance agents, brokers or intermediaries are required to provide the Bank, upon request, with any information regarding the insurance contracts on which they have intervened as intermediaries and which are related to risks in Belgium.
In the cases referred to in paragraph 2, the Bank shall inform the authorities of control of the Member State of origin.
Art. 567. § 1^er. The control authorities of the Member State of origin are empowered, after having previously informed the Bank, to conduct on-site controls and inspections at the branches referred to in section 550 to verify or collect, if any, through the persons they mandate, the information that is necessary to ensure the control of the financial situation of the insurance company. The Bank may participate in this audit.
§ 2. The transfer of portfolios involving the assignment of rights and obligations of insurance contracts in respect of which the State of Commitment is Belgium or the risk therein, carried out by the insurance companies referred to in this Chapter, authorized by the control authorities of their Member State of origin are the subject of an advertisement in Belgium. This advertisement is, at the request of these authorities, made by the Bank in accordance with the terms set out in Article 106.
Section IV. - Exceptional measures
Art. 568. When the Bank finds that an insurance company operating under the law of another Member State operating in Belgium through a branch or under the free service plan does not comply with the provisions referred to in Articles 562 and 564, since the substances covered by these provisions fall within the Bank's jurisdiction, the Bank shall, within the time it determines, correct the situation.
The Bank informs FSMA of its intention to implement the preceding paragraph.
If, at the end of the period referred to in paragraph 1^er, it has not been remedied to the situation, the Bank informs the supervisory authorities of the Member State concerned.
Art. 569. § 1^er. In the event of persistent breaches, the Bank may take appropriate measures, including those provided for in section 517.
Where such a measure is proportionate, the Bank may also prohibit the company from entering into new insurance contracts in Belgium and, at the company's expense, from publishing the ban measure in the newspapers of its choice or in the places and for the duration it determines.
In addition, if the Bank considers that the control authority of the Member State of origin has not taken the appropriate measures to remedy the non-compliance situation referred to in Article 568, it may refer to the IOPA and request its assistance in accordance with Rule 19 1094/2010.
Article 517, § 5, is applicable.
§ 2. The Bank shall inform the control authorities of the Member State of origin before taking the measures provided for in paragraph 1^er.
Art. 570. In the event of an emergency, the Bank may take the measures referred to in Article 569, § 1^er, without a time limit being set beforehand and informing the control authorities of the Member State of origin immediately after taking such measures.
Art. 571. The Bank shall immediately inform FSMA of the measures it has taken on the basis of sections 569 and 570, as well as the Industrial Accidents Fund when these measures are taken with respect to companies that cover the risks of industrial accidents.
The Bank shall communicate to the European Commission and IAPO the number and nature of the cases in which measures have been taken in accordance with Articles 569 and 570.
Art. 572. The Bank may, at the request of the relevant Belgian authorities, apply sections 568 to 570 with respect to an insurance company referred to in this Chapter when it has carried out in Belgium, as part of its insurance activities, acts contrary to the legal or regulatory provisions of general interest as referred to in Article 564, paragraph 1^er.
Art. 573. In the event of the cancellation or revocation of the approval of the insurance company by the control authority of its member State of origin, the Bank shall, at the request of that authority, take appropriate measures to prevent the insurance company concerned from entering into new contracts or transactions in Belgium.
In particular, the Bank may order, after giving notice to that authority, the closure of the branch established by this insurance company in Belgium. It may designate a provisional manager who ensures the preservation of the assets of the branch until it is decided on their destination, and who is authorized to take all precautionary measures in the interest of insurance owners, insured persons and beneficiaries in Belgium.
The Bank shall inform FSMA of the decision to cancel or revoke the approval of the insurance company by the control authority of its Member State, as well as the measures it takes under this Article.
Art. 574. If the control authorities of the Member State of origin of an insurance company require it, the Bank may restrict or prohibit in accordance with Articles 513 to 515 the free disposition of the assets located in the Belgian territory that these authorities have designated.
CHAPTER II. - Exercise of activities in Belgium by
reinsurance companies under the law of another Member State
Section I^re. - Access to activity
Art. 575. Reinsurance companies subject to the right of a Member State other than Belgium may, by way of installation of a branch or under the free provision of services, carry out reinsurance transactions for which they have obtained approval in their Member State of origin.
Section II. - Exercise of activity
Art. 576. The provisions of this Chapter shall not prejudice, in the exercise of reinsurance activities carried out in Belgium, the legal and regulatory provisions applicable in Belgium to reinsurance companies and their operations for reasons of general interest.
The provisions of this Chapter do not further prejudice the respect, in the exercise of activities other than reinsurance activities, of the legal and regulatory provisions applicable in Belgium, to these activities.
Sections 199 to 202 apply to reinsurance companies referred to in section 575 that operate in Belgium through the installation of a branch.
Art. 577. The reinsurance companies referred to in Article 575 shall, in the course of their activities in Belgium, accompany their name of the mention of their State of origin and, when carrying out their activities through a branch, mention of their head office.
Section III. - Control
Sub-section I^re. - General
Art. 578. § 1^er. The control authorities of the Member State of origin are empowered, after having previously informed the Bank, to conduct on-site inspections and inspections at the branches referred to in Article 575 with a view to verifying or collecting, if any, through the persons they mandate, information that is necessary to ensure control of the financial situation of the reinsurance company. The Bank may participate in this audit.
§ 2. When the Bank has reasons to consider that the activities of the reinsurance company could affect its financial solidity, it informs the control authorities of the Member State of origin.
Sub-section II. - Exceptional measures
Art. 579. When the Bank finds that a reinsurance company operating under the law of another Member State operating in Belgium through a branch or under the free service regime does not comply with the legal and regulatory provisions applicable in Belgium in the area of competence of the Bank, it puts the reinsurance company to remedy, within the time it determines, the situation noted.
The Bank informs the control authorities of the Member State concerned.
Art. 580. § 1^er. In the event of persistent breaches, the Bank may take appropriate measures, including those provided for in section 517.
Where such a measure is proportionate, the Bank may also prohibit the company from entering into new reinsurance contracts in Belgium and, at the company's expense, from publishing the ban measure in the newspapers of its choice or in the places and for the duration it determines.
In addition, if the Bank considers that the control authority of the Member State of origin has not taken the appropriate measures to remedy the non-compliance situation referred to in section 26 it may refer to IAPO, and request its assistance in accordance with section 19 of Regulation 1094/2010.
Article 517, § 5, is applicable.
§ 2. The Bank shall inform the control authorities of the Member State of origin before taking the measures provided for in paragraph 1^er.
Art. 581. The Bank shall immediately inform FSMA of the measures it has taken on the basis of Articles 579 and 580.
Art. 582. In the event of the cancellation or revocation of the approval of the reinsurance company by the control authority of its original Member State, the Bank shall, at the request of that supervisory authority, take appropriate measures to prevent the reinsurance company concerned from entering into new contracts or transactions in Belgium.
In particular, it may order, after giving notice to that authority, the closure of the branch that this reinsurance company established in Belgium. It may designate a provisional manager who ensures the preservation of the assets of the branch until it is decided on their destination, and who is authorized to take all precautionary measures in the interest of reinsurance beneficiaries in Belgium.
Art. 583. If the control authorities of the Member State of origin of a reinsurance company require it, the Bank may restrict or prohibit in accordance with Articles 513 to 515 the free disposition of the assets located in the Belgian territory that these authorities have designated.
PART II. - Insurance companies or
Reinsurance under Third Country Law
CHAPTER I^er. - Branches in Belgium
third-country insurance companies
Section I^re. - Access to activity in Belgium
Art. 584. Without prejudice to the provisions of the International Treaties to which Belgium is a party, insurance companies under the law of a third country duly accredited in that country must, before opening a branch to carry out their activities in Belgium, be accredited to the Bank.
The King may, for the execution of international treaties to which Belgium is a party, specify the conditions and conditions under which insurance companies covered by these Treaties benefit from the right to establish or provide services for the exercise of their activities in Belgium.
Art. 585. § 1^er. For the purpose of granting the licence referred to in section 584, are applicable:
1° Articles 22, 23, 24, 26, 27 28, 29, 30, 32, 34, 1°, and 35, on the understanding that
(a) Article 18, paragraph 3, is not applicable;
(b) the insurance company is authorized in its country of origin to carry out the activities contained in its business program;
(c) the administrative record also includes the name, address and powers of the general representative referred to in section 593;
(d) the reference to section 23 applies to the insurance company in which the branch is located;
2° Article 31, the branches referred to in this Title being mentioned in a special section of the list;
3° Article 37, 2° and 3°;
4° sections 39 to 43, on the understanding that the reference to sections 39 and 43 applies to the insurance company under the branch and that the reference to sections 40 to 42 applies to the branch in Belgium;
5° Article 62 to the extent that the insurance company can only establish that the commitments of its Belgian branch are covered by a system of protection of insurance creditors within its country of origin to a minimum equivalent to that resulting from the systems established in Belgium, as to the types of contracts covered and the level of protection provided.
In addition to the requirement under paragraph 1^er, 3°, the company demonstrates
(a) that its branch is the subject of an eligible allocation of funds to reach half of the absolute threshold of the minimum capital required under section 189, § 1^er, 4° ;
(b) it has assets in Belgium for the amount referred to in (a) and has, in addition, deposited half of these assets with a financial intermediary in such a way as to make them unavailable. The Bank determines, by regulation made under Article 12bis, § 2, of the Act of 22 February 1998, the terms and conditions to which this non-availability must be met.
§ 2. The grant of the licence referred to in subsection 1^er is also subject to the following conditions:
1° the statutes of the insurance company concerned are not contrary to the provisions of this Act and its decrees and regulations; in particular, the statutes may not authorize an activity other than those referred to in Article 34, 1°;
2° the supervisory authority responsible for the control of the insurance company in the third country confirms that the company meets the prudential requirements applicable to it in that country.
§ 3. Without prejudice to paragraphs 1^er and 2, the granting of an approval to a branch of an insurance company under the law of a third country is also subject to the following general conditions:
1° the insurance company is subject, in its country of origin, to a prudential control of a nature equivalent to that organized by Directive 2009/138/EC and its enforcement measures;
2° the Bank signed with the authority of the third country concerned a cooperation agreement involving an exchange of information allowing it to exercise effective control of the activities of the Belgian branch. The Bank may derogate from compliance with this condition if, in the case of a species, it considers that it is not likely to substantially improve the knowledge of the insurance company, including the group to which it belongs, from the perspective of its organization and the risks generated by its activities, especially the risks to the insurance creditors of the Belgian branch.
§ 4. Without prejudice to the International Agreements binding on Belgium, the Bank may refuse to accept the branch of an insurance company under the law of a third country that does not grant the same access to its market to the Belgian legal insurance company.
§ 5. The Bank may also refuse the approval of a branch referred to in this Title if it considers that the protection of insurance licensees, insured persons and beneficiaries or the sound and prudent management of the company or the stability of the financial system requires the establishment of a Belgian legal society.
Such a decision may include the following criteria:
1° the absence of an effective exercise by the insurance company in the third country, or within the group to which the insurance company belongs, of the activities planned by the branch;
2° the importance of the branch relative to the size of the insurance company.
§ 6. Before deciding on the application for approval of the branch, the Bank shall consult with the authority of the third country concerned.
The Bank shall decide on the application for approval of the branch on the advice of the MSDS regarding the protection of insurance licensees, insured persons and beneficiaries. FSMA renders its notice within one month of the receipt of the Bank's request for notice, together with all relevant documents received from the company requesting approval. The absence of an opinion within this period is considered a positive opinion.
Section II. - Exercise of activity
Art. 586. The Belgian branches of insurance companies under the law of a third country must always meet the conditions provided by or under section 584.
Art. 587. Applicable to Section 584 branches:
1st Article 71;
2° section 83 with respect to the general representative of the branch referred to in section 593, as well as, where applicable, other persons responsible for the effective management of the branch and section 81 with respect to the same persons and, where applicable, those responsible for independent oversight functions within the branch;
3° Article 93, on the understanding that the officers of the branch are assimilated to the members of the legal body of administration;
4° Articles 36 and 38, § 1^er;
5° Articles 102, 103, 104, § 1^er, 1°, and § 2, 105 and 106, being further understood that:
(a) Article 102 (1)^er, 1°, concerns the branch in Belgium;
(b) in the cases referred to in section 102, paragraph 1^er, 3°, where the transferee is a branch of an insurance company under the law of a third country, located in the territory of another Member State, the Bank only authorizes a portfolio transfer if:
- the control authorities of the Member State concerned have given their agreement to such transfer, and
- that these authorities certify that the transferee concerned has, in the light of the proposed transfer, sufficient eligible funds to cover the solvency capital required under the law of that State;
(c) where requested by the branch referred to in section 584 as a transferring business, the authorization referred to in section 102, paragraph 1^er, 3°, can only be given if the Bank has received the agreement of the control authorities of the other Member States where the risks are located or, as the case may be, the control authorities of the Member States of the undertaking. If there is no response from the foreign authorities consulted within three months, their agreement is presumed.
Art. 588. § 1^er. Also applicable to branches referred to in section 584:
Articles 123 to 139;
2° sections 76, 199 to 203, on the understanding that for the purposes of section 76, the location of records relating to operations carried out through the branch is the seat of the branch.
§ 2. The King shall determine the obligations and terms of publication of the annual accounting situations of the branches referred to in section 584.
Art. 589. § 1^er. The branches referred to in section 584 shall be allocated a separate fund in accordance with the following rules:
1° the allocation of equity respects articles 140 to 150;
2° the allocation of equity meets the required solvency capital requirements and a minimum of required capital calculated in accordance with sections 151 to 189, on the understanding that for the purposes of these requirements, only one is taken into account, both for life insurance and for non-life insurance, the transactions carried out by the relevant branch;
3° the absolute threshold requirement corresponds to half of the amount referred to in Article 189, § 1^erFour.
The deposit made in accordance with section 585, paragraph 2 (b), shall be accounted for in eligible base funds to cover the minimum required capital.
§ 2. Section 323 is applicable on the understanding that the additional requirement applies to an additional requirement for the allocation of funds required under this section.
§ 3. Section 91 is applicable to branches referred to in section 584.
Art. 590. The branches referred to in section 584 cannot simultaneously carry out non-life and life insurance activities.
Art. 591. § 1^er. Sections 190 to 193 apply to assets held by the branch.
§ 2. Without prejudice to Article 585, § 1^erParagraph 2, sections 194 and 195 are also applicable to commitments made by the branch. The assets referred to in articles 194 and 195 shall be located in Belgium.
§ 3. By derogation from paragraph 2, assets may be located in Belgium only up to the minimum required capital and, for the surplus, within a Member State where the company demonstrates that it meets the following conditions:
1° the right of the liquidation procedures of the third country assures insurance creditors whose rights have been subscribed to the Belgian branch, a treatment that is equivalent to that of insurance creditors whose rights have been subscribed to the insurance company in the third country; and
2° in the event of an open liquidation procedure against the insurance company in the third country, the law governing this procedure grants insurance creditors whose rights have been subscribed to the Belgian branch a rank offering protection similar to that provided for in Articles 643 and 644.
Art. 592. Also applicable to branches referred to in section 584:
1°, articles 212 to 221;
2° Articles 230 and 231;
Articles 232 to 238;
4° Articles 240 and 241.
Art. 593. The branches referred to in section 584 shall designate a general agent. Sections 81, 83 and 93 apply to it.
In addition, this general agent must have his domicile or habitual residence in Belgium and must have sufficient powers to engage the insurance company with respect to third parties and to represent it in relations with Belgian authorities and courts.
In the event of a waiver of the term or revocation of the term or in the event of the death of the agent general, the insurance company shall take the necessary measures to enable the successor to be in office in the month.
Art. 594. § 1^er. Third-country insurance companies that have sought or obtained an approval in Belgium under this Chapter and in one or more other Member States for the establishment of a branch may apply for the benefit of the following particular provisions, which may only be granted jointly:
1° the solvency capital required is calculated according to the whole activity carried out within the Member States. To this end, only the operations carried out by all branches established in member states are considered for this calculation;
2° by derogation from Article 585, paragraph 2, (b), the deposit required under this provision shall be made in the Member State of the control authority referred to in paragraph 2, paragraph 2;
3° by derogation from Article 592, the representative assets of the required minimum capital may be located in one of the Member States in which they operate.
§ 2. The application referred to in paragraph 1^er shall be deposited with the Bank and the supervisory authorities of each of the other Member States concerned. In this application, the company must indicate the supervisory authority to verify the solvency of the branches established within the European Economic Area for all their operations.
The choice of control authority carried out by the company must be motivated and accepted by that authority.
§ 3. The benefit of the special provisions provided for in paragraph 1^er can only be granted to the company with the agreement of the control authorities of all the Member States concerned.
These specific provisions are applicable only on the date on which the chosen control authority confirms to the other control authorities that it accepts its designation and will verify the solvency requirements of the branches established within the European Economic Area for all of their operations.
When a control authority of another Member State is selected pursuant to paragraphs 2 and 3, the Bank shall provide the authority with the information necessary to verify the overall solvency requirements of the insurance company concerned.
The benefit of the special provisions provided for in paragraph 1^er shall be withdrawn by law in the event of a request from the Bank to the other control authorities concerned or at the request of one of them. This withdrawal is notified to the branch referred to in section 584.
§ 4. When selected pursuant to paragraphs 2 and 3, the Bank shall inform IAPO.
Section III. - Control
Art. 595. Applicable:
Articles 303 to 309;
2° articles 504 to 507;
3° sections 510, 511, 513 to 515, on the understanding that in the cases referred to in 594, the control authority responsible for verifying compliance with the solvency requirements of the branches established within different jurisdictions Member States for all their operations may also exercise the prerogatives referred to in these provisions.
Art. 596. The management of the branches referred to in this Title shall designate one or more approved revisers or one or more approved revisers in accordance with section 327. It may designate a substitute.
In the event of the designation of a reviser company, section 326 is applicable by analogy.
Articles 328, 329, subparagraphs 1^er 4, 330, paragraph 1^er, and 331 to 337 are, mutatis mutandis, applicable.
Art. 597. § 1^er. The Bank may agree, on the basis of reciprocity, with the authorities of third countries of the insurance company and with the authorities, competent and third countries, of the other branches of that undertaking established in other States than Belgium, of rules relating to obligations and prohibitions concerning the branch in Belgium, the object and terms of its supervision, as well as of the modalities of the collaboration and exchange of information with these authorities, as provided for in articles 36/17 of February 1998.
§ 2. Agreements may, with the approval of the Minister with the economy in his or her powers, waive the provisions of this Act with a view to establishing rules and procedures more appropriate to the nature and distribution of the activities of the insurance company and its control.
By means of the existence of a comprehensive control that meets the criteria prescribed by or under this Act, these conventions may exempt from the application of certain provisions of this Act and from the orders and regulations made for its enforcement.
The agreements provided for in this Article shall not include for the benefit of the branches that they relate to rules more favourable than those that apply to the branches established in Belgium as an insurance company under the law of another Member State.
Section IV. - Exceptional measures,
sanctions and end of accreditation
Art. 598. § 1^er. Sections 508 and 517 apply.
In the event of a withdrawal of approval by the Bank justified by non-compliance with the solvency requirements, the Bank shall inform the other control authorities referred to in section 594.
In the event of a withdrawal of approval by a control authority designated under Article 594, §§ 2, and 3, the Bank also withdraws the approval referred to in Article 585.
§ 2. The Bank may still revoke the approval of a branch referred to in this Chapter if it considers that the protection of insurance creditors or the sound and prudent management of the insurance company or the stability of the financial system requires the establishment of a Belgian legal society. The Bank may make use of the criteria referred to in Article 585 § 4.
The Bank shall inform FSMA of the decisions made pursuant to paragraph 1^er.
Art. 599. Articles 538 to 541, 543, paragraph 1^er, and 544 to 547 are applied.
CHAPTER II. - Activities in Belgium, by branch or free service, by reinsurance companies under the law of third countries
Art. 600. Reinsurance companies that fall under the law of a third country and whose solvency regime to which they are subject under this legislation is, pursuant to Article 172, paragraph 3, of Directive 2009/138/EC, considered equivalent to that established by this directive for enterprises under the law of a Member State, are authorized to exercise in Belgium, by way of installation of a branch or under the regime of free service
To this end, the provisions of Chapter II of Title I are, mutatis mutandis, of application.
Art. 601. Reinsurance companies that fall under the law of a third country and whose solvency regime to which they are subject under this legislation is not, pursuant to Article 172, paragraph 3, of Directive 2009/138/EC, considered to be equivalent to that established by this directive for enterprises under the law of a member State, are authorized to exercise in Belgium, by way of installation of a branch, reinsurance transactions^er of this Title.
LIVRE IV. - ASTREINTS
AND OTHER COERCITIVE MEASURES
Art. 602. Without prejudice to the other measures provided for in this Act, the Bank may publish that an insurance or reinsurance company, an insurance holding company, a joint financial company or a joint holding company of insurance under Belgian law or foreign law has not complied with the injunctions that have been made to comply with within the time limit that it determines the provisions of this Act or any orders or regulations made for its execution or of the other measures of regulation 2015/35
Art. 603. § 1^er. Without prejudice to the other measures provided for in this Act, the Bank may set an insurance or reinsurance company, an insurance holding company, a joint financial company or a joint holding company of insurance under Belgian law or foreign law, a period in which:
1° it shall comply with specified provisions of this Act, any decrees or regulations made for its execution or Regulation 2015/35 or any other enforcement measures of Directive 2009/138/EC or
2° it must bring the necessary adaptations to its corporate organisation system or its policy regarding its own fund needs and the management of its risks. This injunction is applicable to the insurance or reinsurance branches of another Member State only in respect of a breach of any of the obligations referred to in 564, paragraph 1^er and 576, paragraph 1^er;
§ 2. If the company remains in default on the expiry of the period, the Bank may, the enterprise heard or at least summoned, charge it with a maximum amount of Euro2,500 000 per offence and not more than Euro50,000 per day of delay.
§ 3. The amount of the stay is fixed, taking into account in particular
1° the severity of the deficiencies encountered and, where appropriate, the potential impact of these breaches on the stability of the financial system;
2° of the financial base of the company in question, such as its turnover.
§ 4. The breaches imposed pursuant to paragraph 2 are recovered for the benefit of the Treasury by the Administration of the Cadaster, the Recording and the Domains.
V. - SANCTIONS
PART I^er. - Administrative fines
Art. 604. § 1^er. Without prejudice to other measures set out in this Act and without prejudice to the measures provided for by other laws or regulations, the Bank may, when it finds an offence to the provisions of this Act, to the measures taken pursuant to this Act or to Regulation 2015/35 or to any other enforcement measures of Directive 2009/138/EC, shall impose an administrative fine to an insurance or reinsurance company,
§ 2. The amount of the administrative fine imposed on the entity referred to in subsection 1^er, for the same fact or for the same set of facts, is not less than 1% and not more than 10% of the entity's technical and financial products in the previous year.
The amount of the administrative fine imposed on a natural person, for the same fact or for the same set of facts, is at least 5,000 euros and not more than 5,000 euros.
§ 3. Fines imposed by the Bank pursuant to paragraph 1^er are recovered for the benefit of the Treasury by the Administration of Cadaster, Recording and Domains.
§ 4. The amount of the fine is determined in particular
1° of the severity and duration of failures;
2° the degree of responsibility of the person involved;
3° of the financial base of the person in question, such as the total turnover of the corporation in question or the annual income of the natural person in question;
4° any benefits or profits derived from such breaches;
5° of injury suffered by third parties due to breaches, to the extent that it may be determined;
6° the degree of cooperation with the competent authorities shown by the natural or legal person in question;
7° of prior failures committed by the person in question;
8° the potential negative impact of breaches on the stability of the financial system.
§ 5. When the Bank makes public the measures imposed in accordance with this Article, it shall at the same time inform the EPOA and the supervisory authority of the Member State concerned if it is an insurance or reinsurance undertaking operating in another Member State.
PART II. - Criminal sanctions
Art. 605. § 1^er. Are punished by imprisonment from one month to one year and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who do not comply with Article 16;
2° those who exercise the activity of an insurance or reinsurance company referred to in section 17 or Book III, Part II without the approval of that undertaking or the approval of the undertaking was terminated or revoked;
3° those who knowingly refrain from making the notifications provided for in sections 64 and 68, those who pass over to the opposition referred to in article 66, paragraph 2 or those who pass over to the suspension referred to in article 72, paragraph 1^er, 1° ;
4° the members of the legal body of administration and other persons referred to in Article 83 who contravene the provisions of this Article;
5° the members of the legal body of administration or steering committee or the persons in charge of the effective management who contravene sections 93, 102, 2° and 3°, 426, 428, 483 or 486;
6° members of the legal board of directors or steering committee or persons in charge of the effective management of an insurance or reinsurance company that, abroad, open a branch or undertake services without having made notifications under sections 108, 113, 115 or 120 or that do not comply with sections 112, 119 or 122;
7° the members of the legal body of administration or steering committee or the persons in charge of the effective management of an insurance or reinsurance company that contravene the orders or regulations referred to in Articles 199, 201, 342, 564, § 2, 576, paragraph 3 or 588, § 1^er2°;
8° members of the legal board of directors or steering committee or persons in charge of the effective management of an insurance or reinsurance company that do not comply with sections 201 or 202.
9° those who perform acts or operations without obtaining the authorization of the Special Commissioner provided for in section 517, § 1^er, 1°, or against a decision of suspension made in accordance with Article 517, § 1^er, 4°, which does not conform to the application of article 568, paragraph 1^eror 579, paragraph 1^eror measures taken under articles 569, § 1^erParagraph 1^er, 580, § 1^er, 573 or 582.
10° those who, as a Commissioner, a Certified Reviewer or an Independent Expert, have certified, approved or confirmed accounts, annual accounts, results accounts or consolidated accounts of companies or periodic reports or information where the provisions of this Act or the orders and regulations made for its execution or the enforcement measures of Directive 2009/138/EC were not complied with, or knowing that they were not satisfied
11° those who are obstructing inspections and verifications to which they are held in the country or abroad or refusing to provide information that they are required to provide under this Act and the enforcement measures of Directive 2009/138/EC or knowingly giving inaccurate or incomplete information;
12° Directors and managers who do not comply with the provisions of Articles 325, § 1^erParagraphs 1^er and 596;
§ 2. Any offence under the prohibition referred to in section 41 is punishable by imprisonment from three months to two years and a fine of 1,000 euros to 10,000 euros.
Art. 606. The provisions of Book I^er the Criminal Code, without exception of Chapter VII and Article 85, shall apply to criminal offences punishable by this Act.
Art. 607. Insurance or reinsurance companies are civilly liable for fines to which their members of the legal board of directors or steering committee are sentenced, persons in charge of the effective management or their agents under the provisions of this Title.
Art. 608. Any information of the head of offence under this Act or any of the legislation referred to in section 20 of the Act of 25 April 2014 against members of the legal body of administration or steering committee, persons in charge of the effective management, agents or authorized commissioners of an insurance or reinsurance enterprise and any information of the head of offence under this Act against any other person
Any criminal action by the head of the offences referred to in paragraph 1^er must be brought to the attention of the Bank and FSMA, each in its area of competence, at the diligence of the Public Prosecutor's Office.
Art. 609. The Bank and the MSDS are empowered to intervene in any event before the repressive court that has been charged with an offence punishable by this Act, without having to justify damage.
The intervention follows the rules applicable to the civil party.
VI. - OF INTERNATIONAL LAW REGULATIONS ON THE MATTER OF ASSESSMENT MEASURES AND LIQUIDATION PROCEDURES AGAINST ASSURANCE
PART I^er. - Sanitation measures
CHAPTER I^er. - Rule of jurisdiction
and receipt of foreign measures
Art. 610. Subject to Articles 598 and 614, the Belgian remediation authorities are only competent to adopt remediation measures with respect to Belgian legal insurance companies. These measures are implemented and are effective in accordance with Belgian legislation, subject to the details and exceptions provided for in this Act. In particular, the Belgian remediation authorities cannot adopt a remediation measure for an insurance company under the law of another Member State, including with respect to the branch of such a company located in Belgium.
Art. 611. Notwithstanding the publicity they may be subject to in Belgium, the remediation measures decided by the remediation authorities of another Member State concerning an insurance company under the law of that State produce their effects in Belgium according to the legislation of that State as soon as they produce their effects in the Member State where they have been adopted. These measures do not require formality in Belgium.
CHAPTER II. - Concertation and information
Section I^re. - Belgian legal insurance companies
Art. 612. The King shall promptly inform the Bank of its decision to adopt a remediation measure pursuant to section 519, if possible before the adoption of the remediation or, if not, immediately thereafter.
The Bank shall immediately bring to the attention of FSMA and the control authorities of all other Member States, by all means, the adoption of any remediation measures and the concrete effects that these measures may have. To this end, the King shall keep the Bank informed of the developments relating to the implementation of Article 519.
Art. 613. When the implementation of a remediation measure taken in accordance with Article 610 is likely to affect the rights of third parties in another Member State where the insurance company has a branch or provides services, and that an appeal is open against the measure, the Bank or, in the case of dispositions referred to in Article 519, the King, shall ensure the publicity of the decision in accordance with the legal provisions in force This advertisement is without impact on the effects of the remediation measure, particularly with respect to the creditors of the insurance company. She mentions at least:
1 the object and legal basis of the decision taken with the mention that the measure is governed by Belgian law;
2° the remediation authorities and, where appropriate, the designated remediation Commissioner;
3° the time limits of appeal and the contact information of the competent authority to determine the appeal.
The appeal period for the adoption of a remediation measure shall take place, in respect of third parties having their domicile or habitual residence in another Member State, on the date of publication in the Official Journal of the European Union.
Section II. - Insurance companies
under the law of a third country
Art. 614. The Bank shall inform, without delay and by any means, the supervisory authorities of the other Member States where the insurance company under the law of a third country also has a branch of its decision to adopt a remediation measure under section 598, and the concrete effects of that measure, to the extent possible before the adoption of the measure or, if not, immediately thereafter. The Bank strives to coordinate its action with the control, remediation and, where appropriate, liquidation of insurance companies of other Member States.
PART II. - Bankruptcy and other procedures
insolvency-based liquidation
CHAPTER I^er. - Rule of jurisdiction
and receipt of foreign procedures
Art. 615. The Commercial Court is competent to decide on the opening of a bankruptcy only with respect to Belgian legal insurance companies. In particular, the Commercial Court cannot open a bankruptcy in respect of an insurance business under foreign law, including in respect of the branch of such a business located in Belgium.
Art. 616. The liquidation procedures whose opening is decided by the liquidation authorities of another Member State concerning an insurance company under the law of that State are recognized in Belgium without any formality and produce their effects as soon as they produce their effects in the Member State where they have been opened.
Art. 617. A foreign court decision regarding a liquidation procedure based on insolvency of an insurance company under third-country law may only be recognized and enforced in Belgium if the following conditions are met:
1° the law of insolvency proceedings of the third country ensures to insurance creditors who have entered into their contract with the Belgian branch, a treatment that is equivalent to that of insurance creditors who have entered into their contract with the insurance company in the third country;
2° the law governing insolvency proceedings in the third country grants insurance creditors who have entered into their contract with the Belgian branch similar protection to that provided for in 643 and 644.
CHAPTER II. - Belgian legal insurance companies
Section I^re. - Concertation and information
Art. 618. Without prejudice to Article 640, the Commercial Court shall promptly inform the Bank of its decision to open a bankruptcy procedure and the concrete effects of bankruptcy, to the extent possible before the opening of the bank or otherwise immediately thereafter. The Bank shall promptly and by any means inform FSMA and the supervisory authorities of all other Member States.
Art. 619. The curators or curators designated in accordance with Article 11 of the Bankruptcy Act of 8 August 1997 shall ensure the advertisement referred to in Article 38 of the Act, also by the publication of the extract in the Official Journal of the European Union. A form bearing in all official languages of the European Union the title "Invitation to produce a debt. Time to respect" is used for this purpose.
The advertisement mentions at least:
1° that the liquidation procedure is governed by Belgian law;
2° the coordinates of the competent court and the designated curator.
Art. 620. When the individual warning of creditors referred to in Article 62 of the Bankruptcy Act of 8 August 1997 concerns creditors having their domicile or habitual residence in another Member State, the circular also indicates, in addition to the information mentioned in the extract referred to in Article 619, the obligation for creditors enjoying a lien or a security right to declare their receivables as well as the consequences related to the failure to comply with Article 72 In the case of insurance claims, the circular also mentions the general effects of the liquidation procedure on insurance contracts, in particular the date on which insurance contracts or transactions cease to produce their effects and the rights and obligations of the insured with respect to the contract or transaction.
The circular referred to in article 62 of the Bankruptcy Act of 8 August 1997, written in the language of the proceedings or, for creditors holding an insurance claim and having their habitual residence, domicile or statutory seat in another Member State, in an official language of that Member State, bears, in all official languages of the European Union, the title "Invitation to produce a receivable - Time to be respected".
Section II. - Rules of procedure and applicable law
Art. 621. The bankruptcy procedure for a Belgian legal insurance company is governed by Belgian law, subject to the details and exceptions provided for in this Act.
Art. 622. § 1^er. Creditors with their domicile or habitual residence in another Member State may declare their claims and submit their observations in an official language of that State accompanied by the mention "Producing claims" or "Presentation of claims" in the language of the proceedings in Belgium. Section 63 of the Bankruptcy Act of 8 August 1997 is applicable. However, the privilege granted to insurance claims under 643 and 644 must not be mentioned.
§ 2. The receivables of creditors with their domicile or habitual residence in another Member State shall be paid the same treatment and, in particular, the same level as the equivalent claims that may be declared by creditors with their domicile or habitual residence in Belgium. To this end, claims submitted by creditors of the same nature are considered equivalent claims.
Paragraph 1^er is also applicable in respect of creditors having their domicile or habitual residence in a third country, provided that the law applicable in that State does not permit the commencement of insolvency proceedings against the insurance company concerned and that the procedure opened in Belgium can produce its effects in that State. If not, these creditors are considered to be chemographary creditors for the purposes of the procedure opened in Belgium.
Art. 623. The trustee(s) designated in accordance with Article 11 of the Bankruptcy Act of 8 August 1997 shall regularly inform creditors, in the form they consider most appropriate, of the proceedings.
At the request of the supervisory authorities of other Member States, the Bank provides information on the course of the liquidation process. To this end, the Commercial Court shall keep the Bank informed of the evolution of the proceedings.
CHAPTER III. - Insurance companies
under the law of a third country
Art. 624. When an insurance company under the law of a third country has branches in Belgium and other Member States, the Bank, as well as the liquidation authorities and the supervisory authorities of these Member States, endeavour to coordinate their actions.
PART III. - Non-insolved liquidation procedures for third-country insurance companies
Art. 625. When a third-country company is subject to write-off, revocation of approval or renouncing approval for all of its operations in Belgium, the Bank may appoint a liquidator to carry out all of the company's assets in Belgium and to liquidate all the commitments entered into in Belgium.
Without prejudice to Article 599, the King shall determine, on the advice of the Bank, the powers and obligations of such a liquidator.
The liquidation costs are borne by the company concerned.
The provisions of this Article shall not apply where an insurance company under the law of a third country is subject to a liquidation procedure based on insolvency in that State at the time of the revocation of the licence.
Art. 626. § 1^er. A winding-up decision not based on insolvency of an insurance company under third-country law may only be recognized and enforced in Belgium if the following conditions are met:
1° the law of the third country governing the liquidation procedure shall ensure to the insurance creditors who have entered into their contract with the Belgian branch that is equivalent to that of the insurance creditors who have entered into their contract with the insurance company in the third country;
2° the law governing the liquidation procedure in the third country grants insurance creditors who have entered into their contract with the Belgian branch similar protection to that provided for in Articles 643 and 644.
§ 2. Article 625 is not applicable where a liquidation procedure not based on insolvency of an insurance company under the law of third countries is recognized and made enforceable in Belgium in accordance with paragraph 1^er.
Art. 627. When a third-country insurance company has branches in Belgium and other Member States, the Bank, as well as the liquidation authorities and control authorities of these Member States, shall endeavour to coordinate their actions. Potential liquidators also strive to coordinate their actions.
PART IV. - The liquidation of special heritages
Art. 628. § 1^er. Without prejudice to Article 631 and Article 195, paragraph 2, the fate of an asset referred to in Article 194 subject to a real right shall be determined in accordance with Belgian law under lex fori concursus.
§ 2. Without prejudice to section 632, the fate of an asset referred to in section 194 subject to a retention-of-title clause is determined in accordance with Belgian law under lex fori concursus.
§ 3. Without prejudice to section 633 and the obligation for an insurance company to assess claims on a third party deducted from debts to that third party for the valuation of its assets referred to in section 194, the fate of such an asset subject to legal or conventional compensation is determined in accordance with Belgian law under the terms of lex fori concursus.
§ 4. For the purposes of this article, Belgian law includes its provisions of material law arising from the transposition of European directives governing the substances referred to in paragraphs 1^er 3.
Art. 629. The composition of the assets in the permanent inventory in accordance with Article 195, at the time of the decision to commence the liquidation procedure, cannot be changed at that time; no modification may be made to the permanent inventory, except for the correction of purely material errors, except authorization of the liquidation authorities.
Notwithstanding paragraph 1^er, the liquidator adds to the said assets their financial product, as well as the amount of the premiums (pure awards) paid in the separate management concerned for the period between the opening of the liquidation procedure and the payment of insurance claims or to the transfer of portfolio.
If the proceeds of realizing the assets are less than their valuation as shown in the permanent inventory, the liquidator is required to provide the Bank with the rationale.
PART V. - Common rules
remediation measures and liquidation procedures
CHAPTER I^er. - Exceptions and temperaments
to the application of the Belgian law as the law of the procedure
Art. 630. By derogation from sections 610 and 621, the effects of a remediation measure or liquidation procedure on:
1° Work contracts and labour relations shall be governed exclusively by the law of the Member State applicable to the contract or employment relationship;
2° the contract giving the right to enjoy a real estate or to acquire it is exclusively governed by the law of the Member State in whose territory this building is located. This law determines whether the property is furniture or building;
3° the rights of the insurance company on a real property, a ship or an aircraft, which are subject to registration in a public register, are governed by the law of the Member State under the authority of which the register is held;
4° transactions in a foreign regulated market within the meaning of section 2, 6°, of the Act of August 2, 2002 on financial sector surveillance and financial services are governed exclusively by the law applicable to the market;
5° an ongoing proceeding concerning an asset or a right whose insurance company is dived is governed exclusively by the law of the Member State in which the proceeding is underway.
The King may, on the advice of the Bank, extend the rule referred to in paragraph 1^er, 4°, to transactions in financial instrument markets organized under section 15 of the Act of 2 August 2002.
Art. 631. § 1^er. The implementation of a remediation measure or the opening of a bankruptcy procedure does not affect the real right of a creditor or a third party to tangible or intangible property, furniture or immovables - both of the specified property and of the undetermined set of assets whose composition is subject to change - belonging to the insurance company and which are, at the time of the implementation of such measures
§ 2. The rights referred to in paragraph 1^er include:
1° the right to realise or enforce the property and to be disinterested by the product or income of that property, in particular by virtue of a pledge or mortgage;
2° the exclusive right to recover a receivable, in particular under the assignment or assignment of that receivable as a guarantee;
3° the right to claim the property and/or claim restitution in the hands of any person who holds it or enjoys it against the will of the person entitled to it;
4° the real right to perceive the fruits of a good.
§ 3. Is assimilated to a real right the right, registered in a public register and opposable to third parties, allowing for a real right within the meaning of paragraph 1^er.
Art. 632. The implementation of a remediation measure or the opening of a bankruptcy procedure against an insurance company buying a property does not affect the rights of the seller based on a reservation of property when this property is, at the time of the implementation of such measures or the opening of such a procedure, on the territory of a Member State other than the State in which such measures are implemented in the course of such proceedings.
The implementation of a remediation measure or the opening of a bankruptcy procedure against an insurance company having the quality of the seller, after the delivery of the property being the subject of the sale, does not constitute a cause of resolution or termination of the sale and does not constitute an obstacle to the acquisition by the purchaser of the property sold, when such property is at the time of the implementation of the State
Art. 633. The implementation of a remediation measure or the opening of a bankruptcy procedure does not affect the right of a creditor to invoke compensation for his debt with the debt of the insurance company, where such compensation is permitted by the law applicable to the debt of the insurance company.
Art. 634. Without prejudice to Article 630, paragraph 1^er, 1°, 3°, and subject to Article 635, Articles 631, § 1^er632 and 633 do not impede the application of sections 17 to 20 of the Bankruptcy Act of 8 August 1997.
Section 1167 of the Civil Code and sections 17 to 20 of the Bankruptcy Act of 8 August 1997 are not applicable where the beneficiary of an act referred to in the said provisions demonstrates that the act is subject to the law of a Member State other than the Belgian law and that this law does not provide, in this case, any means to challenge this act.
Art. 635. By derogation from Article 517, § 1^ershall, 1°, and 4° and 16 of the law of August 8, 1997 on bankruptcy, and notwithstanding articles 17 to 20 of the latter law, if the insurance company has in an expensive capacity, after the adoption of a remediation measure or the opening of a bankruptcy, property, ship or aircraft registered in a public register
CHAPTER II. - Information
Art. 636. Without prejudice to Articles 610 and 615, where the supervisory authorities of the member State of origin of an insurance company inform the Bank of the decision to initiate a liquidation procedure or adopt a remediation measure, the Bank shall inform FSMA. The Bank and FSMA may issue a notice to the Belgian Monitor and in two regionally broadcast daily or periodicals.
This notice contains at least one extract of this decision and mentions the competent authorities to adopt a remediation measure or to initiate a liquidation procedure, the law governing these measures or procedures and, as the case may be, the liquidator or the designated remediation commissioner, and is published at least in one of the official languages in Belgium.
CHAPTER III. - Sanitation Commissioners and Liquidators
Section I^re. - Receiving foreign measures and procedures
Art. 637. The appointment of a remediation commissioner or liquidator by an authority of another Member State shall be determined by the presentation of a certified copy in accordance with the original of the decision that appoints it or by any other certificate established by that authority.
Without any legalization or similar formality required, it will nevertheless be established a translation of the document referred to in paragraph 1^er in the language or language of the linguistic region in the territory of which the remediation commissioner or liquidator wishes to act.
Art. 638. § 1^er. The remediation commissioners and liquidators appointed by an authority of another Member State may exercise in Belgium all the powers they are entitled to exercise in the territory of that other State.
The same applies to persons whom they have designated, in accordance with the law of that State, with a view to assisting or representing them in the course of a remediation or liquidation procedure.
§ 2. In the exercise of their powers in Belgium, remediation commissioners and liquidators referred to in paragraph 1^er respect Belgian legislation, in particular with regard to the modalities for the realization of goods and the information of workers. Their powers cannot include the use of force or the right to rule on a dispute or dispute.
§ 3. Sanitation Commissioners and Liquidators referred to in paragraph 1^er communicate to the Banque-Carrefour referred to in Article 3 of the Act of 16 January 2003 establishing a Banque-Carrefour des Entreprises, modernization of the register of trade, creation of a registered business window and bearing various provisions, remediation measures and liquidation procedures decided by an authority of another Member State for registration.
Section II. - Belgian salvage and liquidators
Art. 639. The curators or curators designated in accordance with Article 11 of the Bankruptcy Act of 8 August 1997 shall take all necessary measures to ensure the registration of a liquidation procedure in a public register of another Member State when such registration is made compulsory under the law of that State.
Fees arising from registration in a public register of another Member State are considered to be costs of the proceedings, whether registration is compulsory or is the result of the initiative of the persons referred to in paragraph 1^er.
LIVRE VII. - LAW ASPECTS
MATERIAL OF LIQUIDATION PROCEDURES
PART I^er. - Special rules in case of bankruptcy proceedings
Art. 640. § 1^er. Except as to the case of a summons made under section 549, paragraph 1^er, the opening of a bankruptcy proceeding or a provisional divestiture within the meaning of section 8 of the Bank's Consistent Notice of Bankruptcy Act of August 8, 1997.
§ 2. Bank referral is written. It is accompanied by the necessary documents for its information.
The Bank renders its notice within fifteen days of receipt of the notice request. The Bank may, in the case of an insurance or reinsurance business proceeding that may, according to its assessment, present important systemic implications or that requires first coordination with foreign authorities, render its notice within a longer period of time, but the total time limit may not exceed 30 days. When the Bank considers it necessary to make use of this exceptional period, the Bank shall notify the court to decide. The time limit available to the Bank to render its notice suspends the period in which the court must decide. In the absence of a Bank response within the time limit, the court may decide.
The Bank's opinion is written. It is transmitted by any means to the Clerk, who gives it to the President of the Commercial Court and to the King's Prosecutor. The notice is placed on file.
Art. 641. The curator(s) referred to in section 27 of the Bankruptcy Act of 8 August 1997 and the assistant persons pursuant to section 27, paragraph 4, shall be designated on the Bank's notice.
PART II. - Special rules in case of proceedings
liquidation within the meaning of section 183 of the Corporate Code
Art. 642. § 1^er. Except as to the dissolutions of the right under section 542, any dissolutions of an insurance or reinsurance company, whether voluntary or legal, and the subsequent liquidation within the meaning of the Code of Companies, require the Bank's consistent opinion.
Before a decision is taken on a cause of judicial dissolution under the Code of Companies in respect of an insurance or reinsurance business, the Commercial Court shall apply to the Bank for an opinion in accordance with the procedure provided for in Article 640, § 2.
§ 2. In the event of voluntary dissolution or dissolution under section 542 of the insurance or reinsurance company, the liquidator, which is designated in accordance with the statutory or legal rules, shall be appointed only with the approval of the Bank.
Without prejudice to the legal provisions applicable to commercial corporations and section 545, the King shall, on the advice of the Bank, determine the powers and obligations of the liquidator, especially with regard to the liquidation of insurance claims. In any event, the liquidator is required to respond to requests for information from the Bank and must also inform the Bank of the evolution of its mission.
§ 3. The Bank shall promptly inform the supervisory authorities of all other Member States and, in the case of an insurance company, the MSDS, of any dissolution and of its possible concrete effects.
PART III. - Provisions common to different
liquidation and other competitive arrangements
Art. 643. All assets referred to in section 194 shall form, by separate management referred to in section 230, a special asset reserved for the performance of commitments to insurance licensees, insured persons or beneficiaries of insurance under that management, by absolute priority in relation to any other claims on the insurance business.
The special heritage of each separate management is constituted by the content of the permanent inventory prescribed by section 195.
Art. 644. Any liquidation of special assets must be made taking into account the rights of creditors holding an insurance claim and creditors referred to in paragraph 2 by respecting equality between all creditors of the same rank.
By derogation from article 643, paragraph 1^er, the liquidator may collect on each special heritage his or her remuneration, that of his or her staff and all other liquidation costs as they have taken advantage of the liquidation of this heritage.
If the liquidation of a special heritage leaves a positive balance, this balance is shared among other special heritages, prorated by the deficits of these special heritages.
If, after the liquidation of all special assets, there is still a balance available, the balance is attributed to the creditors' mass.
In the event of a lack of special assets to completely disinterest creditors holding an insurance claim, they retain a privileged debt for the surplus against the company. This privilege is general; It is awarded by special privileges as well as by the general privileges of employee, treasury and social organizations and insurers, as well as by the exercise of real rights.
LIVRE VIII. - FINAL PROVISIONS,
MODIFICATIVES, TRANSITOIRS AND ABROGATOIRS
PART I^er. - Transitional provisions
Art. 645. The registered insurance companies, on the date of coming into force of this Act, to the list of insurance companies referred to in section 4 of the Act of 9 July 1975 relating to the control of insurance companies are of full right, as such, for the purposes of this Act.
Insurance companies under the right of a Member State registered on the lists referred to in section 66 of the Act of 9 July 1975 relating to the control of insurance companies are registered, as appropriate, on the list provided for in section 555 or 561.
Art. 646. § 1^er. The insurance companies referred to in section 275 that carried out their activities on the date of entry into force of this Act are provisionally listed in section 275, § 2, paragraph 5.
These companies shall be granted a period of four months from the date of entry into force of this Act to apply to the Bank for registration referred to in section 275, § 2.
§ 2. The insurance companies referred to in section 276 shall be within one year of the coming into force of this Act to comply with the provisions of sections 276 to 293.
§ 3. The local insurance companies referred to in section 294 who carried out their activities on the day this Act came into force are provisionally listed in section 296.
These undertakings shall be granted a period of four months from the date of entry into force of this Act to apply to the Bank for registration referred to in section 296.
Art. 647. § 1^er. Royal decrees, Bank regulations and any other regulatory acts adopted pursuant to the Act of 9 July 1975 on the control of insurance companies remain applicable to the extent that the provisions of this Act provide for the legal, general or specific authorizations necessary for such regulatory acts and that their content is not contrary to this Act.
§ 2. The authorizations and exemptions given by the Bank as well as any individual acts adopted previously on the basis of the Act of 9 July 1975 on the control of insurance companies or regulatory acts adopted for its execution, shall remain in force, except for their revocation or amendment decided in accordance with this Act.
Art. 648. The registered reinsurance companies, on the date of entry into force of this Act, to the list of reinsurance companies referred to in section 11 of the Reinsurance Act of 16 February 2009, are fully entitled, as such, to the application of this Act.
Art. 649. The registered insurance companies, on the date of coming into force of this Act, to the list of insurance companies referred to in section 4 of the Act of 9 July 1975 relating to the control of insurance companies and which, on that same date, carried out a reinsurance activity, are entitled to full right as a reinsurance company for the purposes of this Act.
Art. 650. § 1^er. Royal decrees, Bank regulations and any other regulatory acts adopted pursuant to the Reinsurance Act of 16 February 2009 shall remain applicable to the extent that the provisions of this Act provide for the legal, general or specific authorizations necessary for these regulatory acts and that their content is not contrary to this Act.
§ 2. The authorizations and derogations given by the Bank and any individual acts adopted previously on the basis of the Act of 16 February 2009 on reinsurance or regulatory acts adopted for its execution, shall remain in force, except for their revocation or amendment decided in accordance with this Act.
Art. 651. By derogation from Article 40, § 1^erParagraph 1^er, legal persons who, as of May 7, 2014, acted as a member of the legal body of administration of an insurance or reinsurance business are authorized to continue the exercise of their current mandate until the expiry of their current term. Until the expiry of the terms of reference referred to in this Article, Article 40 § 1^erParagraph 2 shall apply to the permanent representative of the legal person.
Art. 652. § 1^er. By derogation from sections 48, 50, 51, insurance or reinsurance companies shall be granted a period of six months from the coming into force of this Act to meet the requirement to establish a compensation committee and a risk committee.
§ 2. By derogation from section 56, insurance or reinsurance companies shall be granted a period of six months from the coming into force of this Act to meet the requirement to establish a risk management function in accordance with that section 56.
§ 3. The loans, credits, guarantees or insurance contracts granted prior to the coming into force of this Act and which do not comply with the requirements of section 93, must be terminated by 30 June 2016.
Art. 653. By derogation from Article 96, § 4, even if all of the solvency capital required under Article 96, § 1^er, 5°, b), is published, the additional capital requirement or the effect of the specific parameters that the insurance or reinsurance undertaking is required to use under section 166 do not have to be subject to separate disclosure during a transitional period ending December 31, 2020.
Art. 654. § 1^er. Until 31 December 2017, insurance or reinsurance companies shall apply the percentages referred to in section 189, § 3, exclusively to the solvency capital required of the company calculated according to the standard formula provided for in sections 153 to 166.
§ 2. By derogation from sections 511 and 541, insurance or reinsurance companies that, as of December 31, 2015, met the credit margin requirements set out in or under the Act of July 9, 1975 relating to the control of insurance companies or by or under the Act of February 16, 2009 relating to reinsurance and which, at the date of entry into force of this Act, do not have a minimum amount of equity eligible for reinsurance
Companies that, upon expiry of the period provided for in paragraph 1^er, do not have an adequate amount of eligible base funds to cover the minimum required capital shall be withdrawn under Article 517 § 1^er8°.
Art. 655. As long as the maximum rates of reference for life insurance transactions have not been fixed pursuant to section 216, the maximum correlative rates established under section 19, §§ 2, and 3, of the Act of 9 July 1975 on the control of insurance companies or section 24 of the Royal Decree of 14 November 2003 on life insurance activity, remain in application.
Art. 656. By derogation from section 224, paragraph 2, but without prejudice to sections 224, paragraph 3, and 225 to 229, the undertakings referred to in section 223 that also carry out life and non-life reinsurance activities may, until December 31, 2019, manage all of these reinsurance activities in a joint manner with either their life insurance activities or their non-life insurance activities.
The Bank withdraws the benefit of paragraph 1^er to an insurance company that does not meet the requirements of section 224, paragraph 3.
Art. 657. Mutual insurance associations referred to in Article 244 formally adapt, for 31 December 2017, their statutes, insurance contracts and all documents to the public, with regard to the indication of their legal form.
Art. 658. By derogation from articles 538, §§ 1^er, 2, 3 and 545, insurance or reinsurance companies that, at 1^er January 2016, without liquidation within the meaning of sections 183 and following of the Corporations Code, ceased to enter into new contracts and only administer their existing portfolio with a view to ending their business are exempted from the provisions of Book II of this Act if all of the following conditions are met:
1° the company has committed to the Bank to terminate the activities under way for 1^er January 2019 or is subject to remediation measures and a provisional administrator or manager has been designated pursuant to Article 517, § 1^er2°;
2° the undertaking is not part of a group unless all the companies of the group have ceased their activities in accordance with this article or the national provisions transposing Article 308ter, paragraphs 1^er to 3 of Directive 2009/138/EC;
3° the company shall notify the Bank, by 15 January 2016, of its intention to benefit from the provisions of this Article;
4° the company submits to the Bank a plan specifying how the company intends to proceed with the liquidation of its commitments.
The Bank shall withdraw the benefit of the provisions of this Article:
- 1^er January 2019 for companies that have committed to cease their activities on that date;
- 1^er January 2021 for remediated enterprises;
or a previous date if the Bank considers that the progress made towards the termination of the business activity is insufficient.
Failure of the plan referred to in paragraph 1^er, 4°, or where the Bank considers that this plan does not provide sufficient guarantees with respect to the protection of insurance and reinsurance creditors, the Bank may take all measures to regulate a correct liquidation of the insurance and reinsurance commitments of the company and, in particular, any measures to safeguard the rights of insurance and reinsurance creditors. These measures include measures under sections 504 to 517, 546 and 547.
The insurance or reinsurance companies referred to in this section annually provide the Bank with an update of the plan referred to in paragraph 1^erFour. The Bank also determines, on a case-by-case basis, the content of the updated plan.
Art. 659. § 1^er. For a period not exceeding four years from 1^er January 2016, the maximum period in which insurance or reinsurance companies are required to provide the information referred to in section 312, according to an annual or less frequent periodicity, is fixed at twenty weeks from the closing of the company's accounting year ended June 30, 2016 to June 1, 2016^er January 2017. This period decreases by two weeks each accounting year to fourteen weeks from the closing of the accounting year of the business ended between June 30, 2019 and June 1^er January 2020.
§ 2. For a period not exceeding four years from 1^er January 2016, the maximum period in which insurance or reinsurance companies must provide the information referred to in section 312, according to a quarterly periodicity, is fixed to eight weeks from any quarter ended between 1^er January 2016 and 1^er January 2017. This period decreases from one week to each accounting year to be fixed at five weeks from any quarter ended between June 30, 2019 and June 1^er January 2020.
Art. 660. For a period not exceeding four years from 1^er January 2016, the maximum period in which insurance or reinsurance companies are required to provide the information referred to in sections 95 and 96, is set at twenty weeks from the closing of the accounting year of the business closed between June 30, 2016 and June 1^er January 2017. This period decreases by two weeks each accounting year to fourteen weeks from the closing of the accounting year of the business ended between June 30, 2019 and June 1^er January 2020.
Art. 661. Sections 659 and 660 apply by analogy with respect to the information obligations set out in sections 93, 94 and 307 to participating insurance or reinsurance companies, insurance holding companies and mixed financial companies, provided that the time limits set out in sections 659 and 660 are extended, each time, by six weeks.
Art. 662. § 1^er. Notwithstanding section 147, the core equity elements are included in the level 1 core funds for a maximum period of ten years after 1^er January 2016 if these elements:
1° were issued before January 18, 2015;
2° could, as of December 31, 2015, taking into account their characteristics, be used to meet the solvency margin available in a proportion not exceeding 50% of the solvency margin in accordance with the provisions of the Act of July 9, 1975 on the control of insurance companies or the Act of February 16, 2009 on reinsurance and their orders and enforcement regulations;
§ 2. Elements of base equity that may be classified at level 2 under section 147 do not benefit from the assimilation provided for in paragraph 1^er.
Art. 663. § 1^er. By derogation from section 147, the core equity elements are included in the level 2 core funds for a maximum period of ten years after 1^er January 2016 if these elements:
1° were issued before January 18, 2015;
2° could, as of December 31, 2015, taking into account their characteristics, be used to meet the solvency margin available in a proportion not exceeding 25% of the solvency margin in accordance with the provisions of the Act of July 9, 1975 on the control of insurance companies or the law of February 16, 2009 on reinsurance and their orders and enforcement regulations.
Art. 664. For insurance or reinsurance companies that invest in negotiable securities or other financial instruments based on reconditioned borrowings that were issued before 1^er January 2011, the requirements set out in Regulation 2015/35 apply only if underlying exhibitions were replaced or supplemented by new exhibitions after December 31, 2014.
Art. 665. Notwithstanding articles 74, 151, § 2, paragraph 2, and § 3, and 154, the following rules are applicable:
1° until 31 December 2017, the standard parameters to be used to calculate the concentration risk submodule and the submodule "risk of margin - spread risk" according to the standard formula are the same, for exhibitions on the central administrations and central banks of the Member States which are labeled and financed in the national currency of a Member State, as those which would apply to such exhibitions labeled and financed in euros;
2° in 2018, the standard parameters to be used to calculate the concentration risk submodule and the submodule "Land risk - spread risk" according to the standard formula are reduced by 80% for exposures on central administrations and central banks of the Member States that are labeled and financed in the national currency of a Member State;
3° in 2019, the standard parameters to be used to calculate the concentration risk submodule and the submodule "latitude risk - spread risk" according to the standard formula are reduced by 50% for exposures on central administrations and central banks of the Member States that are labeled and financed in the national currency of a Member State;
4° from 1^er January 2020, the standard parameters to be used to calculate the concentration risk submodule and the "spread risk" submodule according to the standard formula are not reduced for exposures on the central administrations and central banks of the Member States that are labeled and financed in the national currency of any other Member State.
Art. 666. Notwithstanding articles 74, 151, § 2, paragraphs 2 and § 3, and 154, the standard parameters to be used for shares acquired by the company no later than 1^er January 2016 when calculating the "risk on shares" submodule according to the standard formula without making use of the possibility under section 162, equivalent to the weighted averages:
(a) the standard parameter to be used for the calculation of the submodule "risk on shares" in accordance with Article 162; and
(b) the standard parameter to be used for the calculation of the submodule "risk on shares" according to the standard formula without the possibility provided under section 162.
The coefficient assigned to the parameter referred to in paragraph 1^er, b), grows at least linear at the end of each year, by 0% for the year beginning 1^er January 2016 up to 100% from 1^er January 2023.
Art. 667. Notwithstanding Article 510, §§ 1^er and 2 and without prejudice to subsection 3 of the said section, where the insurance or reinsurance companies that comply with the solvency margin requirement set out in the Act of 9 July 1975 relating to the control of insurance companies or the Act of 16 February 2009 relating to reinsurance and their decrees and enforcement regulations, but do not meet the solvency capital requirement required during the first year of application of this Act, the Bank concerned
The relevant insurance or reinsurance company submits to the Bank every three months an interim report outlining the measures taken and the progress made to establish the level of eligible equity corresponding to the required solvency capital or to reduce its risk profile in order to ensure the compliance of the required solvency capital.
The benefit of the extension provided for in paragraph 1^er is withdrawn when the interim report shows that no significant progress has been made by the company in order to restore the eligible level of equity corresponding to the required solvency capital or to reduce the risk profile in order to ensure the compliance of the required solvency capital, between the date of the non-compliance of the required solvency capital and the date of delivery of the interim report.
Art. 668. § 1^er. By derogation from sections 126 to 131, the Bank may authorize insurance or reinsurance companies to apply, on a transitional basis, a derogatory plan to the relevant curve of risk-free interest rates for life insurance and life reinsurance commitments that meet the following conditions:
1° the insurance or reinsurance obligations derive from contracts that were entered into before 1^er January 2016, excluding renewals of contracts from that date;
2° to 1^er January 2016, the technical provisions for insurance and reinsurance commitments were determined in accordance with the provisions of the Act of 9 July 1975 on the control of insurance companies or the Act of 16 February 2009 on reinsurance and their enforcement orders and regulations;
3° the equalizer adjustment referred to in section 129 is not applied to insurance and reinsurance commitments.
§ 2. The transitional derogatory regime referred to in paragraph 1^er allows, in each currency, to calculate the adjustment as a part of the difference between:
1° the interest rate determined by the insurance or reinsurance company in accordance with the provisions of the Act of 9 July 1975 relating to the control of insurance companies or the law of 16 February 2009 relating to reinsurance and their orders and enforcement regulations as of 31 December 2015; and
2° the effective annual rate, calculated as the single discount rate that, if applied to the cash flow of the insurance and reinsurance portfolio meeting the conditions referred to in paragraph 1^er, would give equal value to the value of the best estimate of the portfolio of these insurance and reinsurance commitments for which the temporal value of the money is taken into account by following the relevant curve of the unsafe interest rates referred to in section 126, § 2.
When insurance or reinsurance companies make use of the volatility correction referred to in section 131, the relevant curve of the non-risk interest rates referred to in paragraph 1^er, 2° is the relevant curve of the riskless interest rates referred to in section 131.
In the event of the Bank's authorization pursuant to paragraph 3, the portion referred to in paragraph 1^er decreases in a linear way at the end of each year, 100% for the first year starting at 1^er January 2016 up to 0% at 1^er January 2032.
§ 3. The Bank's authorization referred to in paragraph 1^erParagraph 1^er, may be given only if the company demonstrates, on the basis of a record of which the Bank determines the content, that it is, on the basis of credible projections of market conditions and its limits of risk tolerance, able to meet the solvency requirements, throughout the transitional period, taking into account the application of the linear decrease terms referred to in paragraph 2, paragraph 3.
The Bank acknowledges receipt of the record referred to in paragraph 1^er and, within fifteen days of receipt of the file, tells the company whether the file is complete for examination or if it requires additional information.
The Bank shall decide on the application for authorization within two months of the introduction of a complete file and not later than three months of receipt of the application.
§ 4. In addition to the requirement under section 670, insurance or reinsurance companies that apply, as a transitional measure, the derogatory regime to the relevant curve of the risk-free interest rates in accordance with this section:
- does not include eligible insurance and reinsurance commitments in computing the volatility correction referred to in section 131;
- indicate in their report on their creditworthiness and financial situation referred to in sections 95 and 96 that they apply the transient risk-free interest curve and quantify the impact on their financial situation resulting from a non-application of this transitional measure.
Art. 669. § 1^er. By derogation from sections 124 to 139, the Bank may authorize insurance or reinsurance companies to apply, on a transitional basis, with respect to existing insurance or reinsurance obligations as of 1^er January 2016, a deduction to their technical provisions. This deduction may be applied to the homogeneous risk groups referred to in section 135.
The deduction referred to in paragraph 1^er corresponds to the difference between
1° the amount of technical provisions, after deduction of claims arising from reinsurance contracts and securitization vehicles, calculated as 1^er January 2016 pursuant to articles 124 to 139, and
2° the amount of technical provisions, after deduction of claims arising from reinsurance contracts, calculated in accordance with the provisions of the Act of 9 July 1975 relating to the control of insurance companies or the law of 16 February 2009 relating to reinsurance and their orders and enforcement regulations.
When insurance or reinsurance companies make use of section 131, the calculation of the amount referred to in paragraph 2, 1°, is calculated with the correction for volatility at 1^er January 2016.
In the event of the Bank's authorization pursuant to paragraph 2, the maximum deductible share of technical provisions decreases in a linear manner at the end of each year, by 100% for the first year beginning at 1^er January 2016 up to 0% at 1^er January 2032.
Subject to prior approval or on the Bank's initiative, the amounts of technical provisions, including, where applicable, the amount of the volatility correction, which is included in the calculation of the transitional deduction determined in accordance with this paragraph, may be recalculated every twenty-four months or more frequently in the event of a significant change in the company's risk profile following an acquisition or assignment of insurance or reinsurance commitments^er January 2016.
§ 2. The Bank's authorization referred to in paragraph 1^erParagraph 1^er, may only be given if the company demonstrates, on the basis of a record of which the Bank determines the content, that it is, on the basis of credible projections of market conditions and its limits of risk tolerance, able to meet, throughout the transitional period, the terms and conditions of linear reduction of the deduction as referred to in paragraph 1^erParagraph 4.
The Bank acknowledges receipt of the record referred to in paragraph 1^er and, within fifteen days of receipt of the file, tells the company whether the file is complete for examination or if it requires additional information.
The Bank shall decide on the application for authorization within two months of the introduction of a complete file and not later than three months of receipt of the application.
The Bank may limit the deduction referred to in paragraph 1^er if its application is likely to result in less requirements for financial resources applicable to the company than those calculated in accordance with the provisions of the Act of 9 July 1975 on the control of insurance companies or the Act of 16 February 2009 on reinsurance and their decrees and enforcement regulations as of 31 December 2015.
In order to ensure compliance by the company with the terms and conditions of linear decrease of the deduction as referred to in paragraph 1^er, paragraph 4, the Bank may also include its authorization of terms and conditions that the Bank may not comply with in this section.
In case of Bank authorization granted after 1^er January 2016, the insurance or reinsurance company must respect the linearity of the deductible portion referred to in subsection 1^er, paragraph 4 as if the authorization was granted to 1^er January 2016.
§ 3. In addition to the requirement under section 670, insurance or reinsurance companies that apply, in accordance with this section, the transitional deduction to technical provisions indicates in their report on their creditworthiness and financial situation referred to in sections 95 and 96 that they apply this transitional deduction scheme and quantify the impact on their financial situation that would result from non-implementation of this transitional measure.
Art. 670. Insurance or reinsurance companies may not be granted cumulatively an authorization under section 668 and an authorization given under section 669 for the same commitments under the branches listed in Appendix II.
Art. 671. § 1^er. Insurance or reinsurance companies that benefit from the transitional measures referred to in section 668 or 669 shall submit annually to the Bank a report describing the measures taken and the progress made to ensure compliance with the solvency capital requirement at the end of the transition period. The Bank withdraws the authorization to apply the transitional measure when it appears from this interim report that compliance with the solvency capital requirement at the end of the transition period is an unrealistic prospect.
Insurance or reinsurance companies that benefit from the transitional measures referred to in sections 668 or 669, further inform the Bank as soon as they find that they would not meet the solvency capital requirement without the application of these transitional measures. The Bank requires the relevant insurance or reinsurance company to take the necessary measures to ensure compliance with the solvency capital requirement at the end of the transition period.
Within two months of the finding of non-compliance with the solvency capital requirement without the benefit of the transitional measures referred to in 668 or 669, the insurance or reinsurance company concerned presents to the Bank a phased implementation plan setting out the measures planned to establish the level of eligible equity corresponding to the solvency capital required or to reduce its risk profile in order to ensure compliance with the transitional capital requirement. The insurance or reinsurance company concerned may update the progressive implementation plan during the transition period. Companies with the transitional measure referred to in Article 669 shall submit, in addition, annually a report describing the measures taken and the progress made in the phased implementation plan referred to in this paragraph.
§ 2. Up to 1^er January 2021, the Bank provides the following information on an annual basis to IAPO:
1°, the availability of long-term guarantees of insurance products on the national market and the practices of insurance and reinsurance companies as long-term investors;
2° the number of insurance and reinsurance companies that apply the equalizer adjustment, the correction for volatility and the extension of the recovery period pursuant to Article 510, § 3, the submodule "risk on shares" based on the duration and transitional measures set out in Articles 668 and 669;
3° the effects, on the financial situation of insurance and reinsurance companies, of equalizing adjustment, of correction for volatility, of the symmetrical adjustment mechanism of the capital requirement for shares, of the submodule "risk on shares" based on the duration and transitional measures set out in sections 668 and 669, at the national level and under conditions made anonymous for each company;
4° the effect of equalizing adjustment, correction for volatility, the symmetrical adjustment mechanism of the capital requirement for shares and the submodule "risk on shares" based on the duration on the investment practices of insurance and reinsurance companies and whether or not these measures result in an undue reduction in the requirements of equity;
5° the effect of any extension of the recovery period granted in accordance with Article 510, § 3, on the efforts of insurance and reinsurance companies to restore the level of eligible equity covering the solvency capital required or reduce the risk profile to ensure compliance with the solvency capital requirement;
6° where insurance and reinsurance companies apply the transitional measures set out in sections 668 and 669, the compliance by these companies of the gradual implementation plans referred to in paragraph 1^er this section and the prospects for a reduction in reliance on these transitional measures, including measures that have been taken or should be taken by companies and the Bank, taking into account the applicable legal framework.
Art. 672. § 1^er. Notwithstanding Article 357, § 2, the transitional provisions provided for in Articles 661 to 665 and 668 to 671, § 1^er, apply mutatis mutandis at group level.
Notwithstanding section 357, §§ 2, and 3, the transitional provisions provided for in section 667 apply mutatis mutandis at the group level when participating insurance or reinsurance companies or insurance or reinsurance companies owned by a group complied with the adjusted solvency requirement set out in Chapter VIIbis of the Act of 9 July 1975 relating to the control of enterprises but did not comply with the applicable solvency requirement of capital
§ 2. By derogation from section 373, the upper parent company may request, before March 31, 2022, to be authorized to apply an internal group model only to a part of the group provided that, at the same time, the insurance or reinsurance company and the upper parent company are located in the same member State and that this part constitutes a separate part with a risk profile substantially different from that of the rest of the group.
Art. 673. Until December 31, 2020, section 600 is applicable to reinsurance companies under the law of a third country that are listed under Article 172, paragraph 4, paragraph 3, of Directive 2009/138/EC.
Art. 674. Insurance companies formally adapt the contracts under branch 27 referred to in Appendix II by 1^er January 2019.
PART II. - Final and other provisions
Art. 675. Article 2, § 1^erquater of the law of 9 July 1975 relating to the control of insurance companies, inserted by section 30, 2°, of the law of 26 April 2010, as it existed before its repeal by section 757 of this Act, must be interpreted in that the mutual insurance associations and cooperative societies that restrict their insurance activity to the common premises of their headquarters or to that of
Art. 676. Without prejudice to the obligations imposed on Belgium by the law of the Union, the King may determine, by order deliberately in the Council of Ministers, the special rules applicable to insurance companies with regard to the granting of extra-legal benefits to wage workers covered by Royal Decree No. 50 of 24 October 1967 relating to the retirement and survival pension of workers and to persons referred to in Article 32, paragraph 1^er, 1°, and 2° of the Code of Taxes on Income 1992, occupied outside a contract of work.
Art. 677. Without prejudice to the provisions of Directive 2009/138/EC and its enforcement measures, the King may, by Royal Decree deliberated in the Council of Ministers and on the advice of the Bank or FSMA, each in its area of competence, and the mutuality control office, exempt mutual insurance companies from the application of certain provisions of this Act and specify the rules that may be applicable to them in place and place.
Art. 678. The amounts denominated in euros in this Act are subject to a revision in accordance with the revision published in the Official Journal of the European Union by the European Commission pursuant to Article 300 of the Directive. The revision provided for in this article shall be effected within six months of the publication.
Art. 679. The Royal Decree of 11 June 2015 appointing the competent authority in charge of the approval and supervision of the central securities depositaries is confirmed with effect on 19 June 2015.
PART III. - Amendments
CHAPTER I^er. - Amendment of the Act of 12 July 1957
pension and employee survival
Art. 680. In Article 22, § 2, of the Act of 12 July 1957 on the retirement and survival pension of employees, last amended by the Act of 28 April 2003, the words "within a company or an insurance agency referred to in Article 2, § 1^er and § 3, 5°, of the Act of 9 July 1975 relating to the control of insurance companies, provided that they have been approved by the King, under the conditions it determines." are replaced by the words "within an insurance company referred to in Article 5, paragraph 1^er, 1°, of the Act of XXX relating to the status and control of insurance or reinsurance companies. ".
CHAPTER II. - Amendment of the Act of 10 April 1971
on Industrial Accidents
Art. 681. In section 48ter, paragraph 1^er, of the Act of 10 April 1971 on Industrial Accidents, last amended by the Act of 10 August 2001, the words "seen to article 80 of the Act of 9 July 1975 on the control of insurance companies" are replaced by the words "seen to article 24, § 1^er, 1°, of the Act of XXX relating to the status and control of insurance or reinsurance companies,".
Art. 682. In section 49, paragraph 1^er, 1°, of the same law, the words "in accordance with the law of 9 July 1975 relating to the control of insurance companies" are replaced by the words "in accordance with the law of XXX. relating to the status and control of insurance or reinsurance companies".
Art. 683. In article 52 of the same law, the words "see Article 68, § 1^er, 5°, of the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words "in accordance with Article 556, § 2, 1°, of the Law of XXX relating to the status and control of insurance or reinsurance companies".
Art. 684. Section 54bis of the Act, inserted by the Act of 10 August 2008, is replaced by the following:
"When, in the assignments referred to in Article 102, paragraph 1^er, 3°, of the Law of XXX on the Status and Control of Insurance or Reinsurance Companies, an insurance company exercising legal insurance against industrial accidents is concerned, the National Bank of Belgium can only grant authorization after notice of the Management Committee of the Industrial Accidents Fund.
If such an insurance company is concerned by a restructuring of companies referred to in Book XI of the Law of 7 May 1999 containing the Code of Companies, the National Bank of Belgium shall inform the Industrial Accidents Fund without delay.".
Art. 685. In Article 88quater, § 1^erin the same Act, inserted by the Act of 13 July 2006, the following amendments are made:
1° 1°, is replaced by the following:
"1°, at the National Bank of Belgium;"
2° it is inserted a 1bis° written as follows:
"1bis° to the Autorité des services et marchés financiers;"
Art. 686. In section 91, § 2, of the same law, last amended by the Act of 21 December 2013, the second is replaced by the following:
"2°, ask the National Bank of Belgium and the Authority of Financial Services and Markets to apply the measures referred to, for the National Bank of Belgium, to Articles 517 or 569 of the Law of XXX relating to the status and control of insurance or reinsurance companies and, for the Authority of Financial Services and Markets, to Articles 36bis, § 2, of the Law of 2 August 2002 on the supervision of the financial sector and services of April 2014 If necessary, the Minister who has the Social Affairs in his or her responsibilities asks the National Bank of Belgium or the Autorité des services et marchés financiers to take such measures without delay.
Without prejudice to paragraph 1^er, the Industrial Accidents Fund informs the National Bank of Belgium and the Autorité des services et marchés financiers of the breaches found in an insurance company that falls under the right of a Member State of the European Union other than Belgium, with a view to the application, by the National Bank of Belgium, in particular, of Articles 566 to 574 of the Law of XXX relating to the status and control of insurance or reinsurance companies, ".
CHAPTER III. - Amendments to the Act of 6 August 1990
on mutuality and national mutuality unions
Art. 687. In Article 9, § 1^erSevenies, paragraph 5, of the Act of 6 August 1990 on mutuality and national mutuality unions, inserted by the Act of 26 April 2010, the words "to the Act of 9 July 1975 on the control of insurance companies," are replaced by the words "to the Act of XXX on the status and control of insurance or reinsurance companies,".
Art. 688. In section 43ter of the Act, inserted by the Act of 22 February 1998, the following amendments are made:
1° to paragraph 1^er, the words "of a banking product within the meaning of the Act of 22 March 1993 relating to the status and control of credit institutions" are replaced by the words "of a banking product as part of an activity referred to in Article 4 of the Act of 25 April 2014 relating to the status and control of credit institutions";
2° to paragraph 2, the words "in the sense of the Act of 22 March 1993 relating to the Status and Control of Credit Institutions" are replaced by the words "in the sense of Article 4 of the Act of 25 April 2014 relating to the Status and Control of Credit Institutions".
Art. 689. In section 52, 11°, of the same Act, inserted by the Act of April 26, 2010, the words "in accordance with the provisions of the Acts of July 9, 1975 relating to the control of insurance companies," are replaced by the words "in accordance with the provisions of the laws of the XXX relating to the status and control of insurance or reinsurance companies,".
Art. 690. In section 62quater of the Act, inserted by the Act of 26 April 2010, the words "of the Act of 9 July 1975 on the control of insurance companies" are replaced by the words "of the Act of XXX on the status and control of insurance or reinsurance companies".
Art. 691. In Article 75, § 1^er, of the same law, the third is repealed.
CHAPTER IV. - Amendment of the law
25 June 1992 on the land insurance contract
Art. 692. In section 140, paragraph 4, of the Act of 25 June 1992 on the land insurance contract, last amended by the Act of 30 July 2013, the words "of section 21octies of the Act of 9 July 1975 on the control of insurance companies" are replaced by the words "of section 504 of the Act of XXX on the status and control of insurance or reinsurance companies".
CHAPTER V. - Amendments to the Law of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism
Art. 693. In Article 2, § 1^erthe Act of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and the Financing of Terrorism, last amended by the Act of 25 April 2014, the following amendments are made:
1° to 6°, the words "in accordance with the law of 9 July 1975 on the control of insurance companies;" are replaced by the words "in accordance with the law of XXX on the status and control of insurance or reinsurance companies;"
2° to 7°, the words "seen by the law of 9 July 1975 relating to the control of insurance companies;" are replaced by the words "seen by the law of XXX relating to the status and control of insurance or reinsurance companies;".
CHAPTER VI. - Amendments to the Act of 6 April 1995
relating to the status and control of investment companies
Art. 694. In Article 45, § 1^er, of the Act of 6 April 1995 relating to the Status and Control of Investment Companies, last amended by the Act of 25 April 2014, the 2° is replaced by the following:
"2° to insurance and reinsurance companies referred to in Books II and III of the Act of XXX relating to the status and control of insurance or reinsurance companies".
Art. 695. In Article 95bis, § 1^erin the same Act, last amended by the Act of 25 April 2014, the following amendments are made:
1° to 3°, the words "or an insurance company as defined in section 91bis, 1°, and 2°, of the law of 9 July 1975 relating to the control of insurance companies, or a reinsurance company as defined in section 82, 3° and 4°, of the law of 16 February 2009 relating to reinsurance" are replaced by the words "or an insurance company or a re-insurance company
2° to 4°, b), the words "insurance company within the meaning of section 91bis, 9°, of the same law;" are replaced by the words "insurance holding company within the meaning of section 338, 5°, of the law of XXX relating to the status and control of insurance or reinsurance companies; ";
3° to 6°, the words "in chapter VIIbis of the law of 9 July 1975 or in section 82 of the law of 16 February 2009 relating to reinsurance" are replaced by the words "in Book II, Title V, Chapter III, of the law of XXX relating to the status and control of insurance or reinsurance companies. ".
CHAPTER VII. - Amendments to the Act of 22 February 1998
establishing the organic status of the National Bank of Belgium
Art. 696. In section 35 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium, last amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° paragraph 2 is repealed;
2° Article 35, as amended by 1°, of this article and the current text of which will form paragraph 1^er, is supplemented by paragraphs 2 and 3 as follows:
"§2. Notwithstanding paragraph 1^er, the Bank may disclose confidential information:
1° in cases where such information is provided or authorized by or under the law;
2° to report criminal offences to the judicial authorities;
3° in the context of administrative or judicial remedies against the acts or decisions of the Bank or in any other proceeding to which the Bank is a party;
4° in summary or aggregate form so that individual natural or legal persons cannot be identified.
The Bank may make public the decision to denounce criminal offences to the judicial authorities.
§ 3. Within the limits of European Union law and any restrictions expressly provided for by or under a law, the Bank may make use of the confidential information it holds within the framework of its legal missions for the fulfilment of its duties referred to in Articles 12, § 1^er, 12ter, 36/2, 36/3 and his missions within the SEBC."
Art. 697. In Chapter IV of the Act, an article 35/1 is inserted as follows:
"Art. 35/1. § 1^er. By derogation from Article 35 and within the limits of European Union law, the Bank may disclose confidential information:
1° received as part of its mission under section 39 of the Act of 11 January 1993 on the prevention of the use of the financial system for the purposes of money laundering and the financing of terrorism,
a) the authorities of the European Union and others Member States of the European Economic Area and the authorities of third States which exercise jurisdiction comparable to that referred to in Article 39 of the aforementioned Law of 11 January 1993;
(b) the competent authorities of the European Union and others Member States of the European Economic Area and the competent authorities of third States which exercise one or more competences comparable to those referred to in Articles 36/2 and 36/3, as well as the European Central Bank with regard to the missions entrusted to it by Regulation (EU) No 1024/2013 of the Council of 15 October 2013 entrusting the European Central Bank with specific missions relating to the prudential supervision policies of credit institutions;
2° as part of the exercise of his mission referred to in Article 12ter, § 1^erand for the purpose of carrying out this mission,
a) the European Union resolution authorities and others Member States of the European Economic Area, as well as the authorities of third States responsible for missions equivalent to those referred to in Article 12ter, § 1^er;
(b) persons or authorities referred to in Article 36/14, § 1^er, 1°, 2°, 3°, 4°, 5°, 8°, 11°, 18° and 19° ;
(c) to the Minister of Finance;
(d) any person, whether in Belgian law or under foreign law, when necessary for the planning or implementation of a resolution action, and in particular,
- to special administrators appointed under Article 281, § 2, of the Law of 25 April 2014 on the Status and Control of Credit Institutions;
- the body responsible for the resolution financing arrangements;
- to auditors, accountants, legal and professional advisors, reviewers and other experts directly or indirectly engaged by the Bank, a resolution authority, a competent department or a potential buyer;
- an establishment referred to in section 260 of the Act of 25 April 2014 relating to the status and control of credit institutions or to an asset management structure referred to in section 265 of the Act;
- persons or authorities referred to in Article 36/14, § 1^er, 6°, 7°, 9°, 10°, 12°, 15° and 20° ;
- potential buyers of securities or assets issued or detained by the institution under resolution procedure, respectively.
(e) without prejudice to points (a) to (d), to any person or authority invested in a position or mission under the Directive 2014/59/EU of the European Parliament and the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment companies, where the disclosure of confidential information concerning a person referred to in Article 1^erparagraph 1^er, point (a), (b), (c) or (d) of the said Directive has been previously approved by that person or by the authority performing a mission identical to those referred to in articles 12, § 1^er and 12ter in respect of that person, when the information comes from that person or authority.
§ 2. The Bank cannot disclose confidential information under paragraph 1^er provided that they are intended for the performance of the duties of the authorities, agencies or persons who are the recipients and that the information is in their leader covered by a duty of professional secrecy equivalent to that provided for in Article 35. In addition, information from an authority of another Member State may only be disclosed to an authority of a third State with the explicit agreement of that authority and, if necessary, for the purposes for which that authority has signed its agreement. Similarly, information from an authority of a third State may only be disclosed with the explicit agreement of that authority and, where appropriate, for the purposes for which that authority has signed its agreement.
The Bank cannot disclose confidential information under paragraph 1^er only to third State authorities with which it has entered into a cooperation agreement providing for an exchange of information.
§ 3. Without prejudice to the stricter provisions of the specific laws governing them, Belgian individuals, authorities and bodies are held in professional secrecy under section 35 with respect to the confidential information they receive from the Bank pursuant to paragraph 1^er"
Art. 698. In section 36/1 of the Act, last amended by the Act of 25 April 2014, the following amendments are made:
1° 6° is replaced by the following:
"6° "insurance or reinsurance": any enterprise referred to in Article 5, paragraph 1^er, 1°, or 2°, of the law of XXX. relating to the status and control of insurance or reinsurance companies; ";
2° 7° is repealed.
Art. 699. In section 36/2 of the Act, last amended by the Act of 25 April 2014, the following amendments are made:
1° a paragraph 2 is inserted as follows:
"With respect to the control of insurance companies, the Bank designates a representative in the management committee or among staff who sits with an advisory voice on the management committee and certain technical committees of the Industrial Accidents Fund. ";
2° to paragraph 2, whose current text will form paragraph 3 pursuant to 1°, of this article, the words "in the preceding paragraph" are replaced by the words "in paragraph 1^er,"
3° paragraph 4, (a), whose current text will form paragraph 5, (a) pursuant to 1°, this article, is supplemented by the words "and the European Insurance and Professional Pension Authority";
4° to paragraph 4, (b), whose current text will form paragraph 5, (b), pursuant to 1°, of this article, the words "and by the European Insurance and Professional Pension Authority" are inserted between the words "by the European Banking Authority" and the words "and, if it does not,".
Art. 700. In article 36/3, § 2, of the same law, last amended by the law of April 25, 2014, the words "and insurance and reinsurance companies" are inserted between the words "with the exception of credit institutions" and the words ", those who must be considered systemic".
Art. 701. In section 36/6 of the Act, last amended by the Act of 25 April 2014, subsection 2 is replaced by the following:
"§2. The Bank also provides the following information on its website:
1° In addition to the legislation relating to the status and control of credit institutions and stock exchange companies and the legislation relating to the status and control of insurance and reinsurance companies, as well as the decrees, regulations and circulars made pursuant to or pursuant to these laws or the regulations of the European Union law relating to these matters, a table for the transfer of the provisions of the European directives relating to the prudential supervision of credit institutions and insurance companies
2° the objectives of the control it carries out in accordance with the laws referred to in 1°, and the functions and activities carried out in this capacity, in particular the verification criteria and methods it uses to carry out the assessment referred to in section 142 of the Act of 25 April 2014 relating to the status and control of credit institutions and to sections 318 to 321 of the Act of XXX relating to the status and control of insurance companies and
3° of aggregate statistical data on the main aspects relating to the application of the legislation referred to in 1°;
4° any other information prescribed by the decrees and regulations made pursuant to this Act.
The information referred to in paragraph 1^er are published according to the guidelines established, if any, by the European Commission, the European Banking Authority or the European Insurance and Professional Pension Authority. The Bank regularly updates the information provided on its website.
The Bank also publishes any other information required under the European Union law acts applicable in the area of control of credit institutions and exchange companies and in the area of control of insurance and reinsurance companies.
The Bank may publish, in accordance with the terms and conditions it determines and in accordance with European Union law, the results of resistance tests conducted in accordance with European Union law. ".
Art. 702. Section 1^re, of the same law, an article 36/7/1 is inserted as follows:
"Art. 36/7/1. A staff member of a financial institution referred to in section 36/2 who informed the Bank, in good faith, of an alleged or proven offence under the laws and regulations governing the status and control of such financial institutions, shall not be subject to any civil, criminal or disciplinary action or be subject to any professional sanction, which would be brought or pronounced because of the fact that the information was made.
Any unfavourable or discriminatory treatment with respect to that person and any breach of the working relationship as a result of the report to which that person proceeded is prohibited.
In the event of a breach of subparagraphs 1^er and 2, the Bank may impose an administrative penalty pursuant to the administrative sanctions provisions contained in the laws governing the status and control of the institutions referred to in section 36/2."
Art. 703. Section 36/13 of the Act is repealed.
Art. 704. In section 36/14 of the Act, last amended by the Act of 25 April 2014, the following amendments are made:
1° in paragraph 1^er5°, the words "depository or investor protection system" are replaced by the words "deposit, investor or life insurance system;"
2° paragraph 1^er, 12°, is replaced by the following:
"12° within the limits of European Union law, to the Belgian Autorité de la concurrence; ";
3° in paragraph 1^er, it is inserted a 21°, written as follows:
"21° to the Office for the Control of Mutuals and National Unions of Mutuals, for the exercise of its legal tasks referred to in Article 303, § 3, of the Law of XXX on the Status and Control of Insurance or Reinsurance Enterprises, with respect to the mutualist companies referred to in Article 43bis, § 5, or Article 70, §§ 6, 7 and 8, of the Law of the Mutuals of 6 August
4° in paragraph 1^er, it is inserted a 22° written as follows:
"22° within the limits of European Union law, the resolution authorities referred to in Article 3 of the Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment companies, to the authorities of third States responsible for missions equivalent to those referred to in Article 12ter, § 1^er with which the Bank has entered into a cooperation agreement that provides for an exchange of information, as well as the relevant ministries of the Member States of the European Economic Area, where it is necessary for the planning or implementation of a resolution action. ";
5° in paragraph 3, the word "persons" is inserted between the words "who governs them," and the words "Belgian authorities and bodies".
Art. 705. In section 36/16 of the Act, last amended by the Royal Decree of 12 November 2013, the following amendments are made:
1° paragraph 1^er is supplemented by a paragraph that reads as follows:
" Similarly, in accordance with European Union law, the Bank cooperates with the European Banking Authority, the European Insurance and Professional Pension Authority, the European Financial Markets Authority, as well as the European Central Bank with regard to the missions entrusted to it by Regulation (EU) No 1024/2013 of the Council of 15 October 2013 entrusting the European Central Bank with specific missions relating to the prudential supervision policies of the institutions. ";
2° in paragraph 2, the words ", paragraph 1^er," are inserted between the words "seen in § 1^er"and the words "agreements";
Paragraph 3 is repealed.
Art. 706. In Article 36/24, § 1^er, 1°, of the same law, last amended by the law of April 25, 2014, the words "to the law of July 9, 1975 relating to the control of insurance companies," are replaced by the words "to the law of XXX relating to the status and control of insurance or reinsurance companies".
CHAPTER VIII. - Amendments to the Act of 2 August 2002
Financial Sector Monitoring and Financial Services
Art. 707. In Article 45, § 1^er, 3°, f, of the Act of 2 August 2002 relating to the supervision of the financial sector and financial services, last amended by the Act of 25 April 2014, the words "Article 14bis of the Act of 9 July 1975 relating to the control of insurance companies," are replaced by the words "Article 42 of the Act of XXX relating to the status and control of insurance or reinsurance companies".
Art. 708. In Article 121, § 1^er, 4°, of the same law, last amended by the law of 19 April 2014, the words "of Article 82, § 1^erParagraph 1^er, of the Act of 9 July 1975 relating to the control of insurance companies, are replaced by the words "Articles 294, § 1^er, 1°, 295, § 1^er, 1°, 299, § 1^er and 300, § 1^er of the Insurance Act of 4 April 2014".
CHAPTER IX. - Amendments to the Program (I) Act
24 December 2002: Act on Supplementary Pensions for Independents
Art. 709. In section 42 of the Program (I) Act of 24 December 2002, last amended by the Act of 15 May 2014, the following amendments are made:
1° to 2°, the words "vised in Article 2, § 1^er or § 3, 5°, of the Act of 9 July 1975 relating to the control of insurance companies," are replaced by the words "in the words "in the words of Books II and III of the Act of XXX relating to the status and control of insurance and reinsurance companies,"
2° to 12°, the words "the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words "the Act of XXX relating to the status and control of insurance or reinsurance companies".
Art. 710. Section 81 of the Act is repealed.
CHAPTER X. - Amendment of the Act of 28 April 2003 on supplementary pensions and the tax system of supplementary pensions and certain additional benefits in social security
Art. 711. In Article 3, § 1^er, the Act of 28 April 2003 on supplementary pensions and the tax system of supplementary pensions and certain additional social security benefits, as amended lastly by the Act of 18 December 2015, the following amendments are made:
1° to 16°, the words "an organization referred to in Article 2, § 1^er or § 3, 5°, of the law of 9 July 1975" are replaced by the words "an organization referred to in Books II and III of the law of XXX. relating to the status and control of insurance or reinsurance enterprises";
2° to 20°, the words "the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words "the Act of XXX relating to the status and control of insurance or reinsurance companies".
CHAPTER XI. - Amendments to the Act of 27 October 2006
on the control of professional pension institutions
Art. 712. In Article 3, § 1^er, of the Act of 27 October 2006 on the Control of Professional Pension Institutions, the 3rd is replaced by the following:
"3° an insurance company referred to in Books II and III of the Act of XXX relating to the status and control of insurance or reinsurance companies. "
Art. 713. In section 5, paragraph 2, of the Act, the 6th is replaced by the following:
"6° of the Insurance Commission established by Article 301 of the Insurance Act of 4 April 2014. ".
Art. 714. In section 139, paragraph 1^er, 2nd dash, of the same law, the words "seen to Article 2, § 1^er, of the Act of 9 July 1975 on the Control of Insurance Businesses;" are replaced by the words "reviewed to Books II and III of the Act of XXX on the Status and Control of Insurance or Reinsurance Businesses;".
Art. 715. Section 227 of the Act is repealed.
Art. 716. In Article 228, § 3, of the same Law, the words "incorporated by Article 41 of the Act of 9 July 1975 on the control of insurance companies" are replaced by the words "incorporated by Article 301 of the Act of 4 April 2014 on insurances".
CHAPTER XII. - Amendments to the Act of 3 August 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and debt-referral institutions
Art. 717. In section 3 of the Act of 3 August 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and debt-taking institutions, last amended by the Act of 25 April 2014, the following amendments are made:
1° the 45° is replaced by the following:
"45° by "law of ...": the law of XXX relating to the status and control of insurance or reinsurance companies; ";
2° the 55° is repealed.
Art. 718. In section 241 of the Act, last amended by the Act of April 25, 2014, the following amendments are made:
1° in paragraph 1^er2°, the words "of Article 91octies decies of the Law of 9 July 1975 or of Article 98 of the Law of 16 February 2009;" are replaced by the words "of Article 338, 7°, of the Law of XXX;"
2° in paragraph 1^er, 3°, paragraph 2, the words "of Chapter VIIbis of the Law of 9 July 1975 or Title VIII of the Law of 16 February 2009" are replaced by the words "of Title V, Chapter II of the Law of XXX."
3° in paragraph 5, the words "of section 98 of the Act of 16 February 2009 or of section 91octiesdecies of the Act of 9 July 1975," are replaced by the words "of Title V, Chapter III of the Act of XXX,".
CHAPTER XIII. - Amendment of the Act of 26 December 2013
various provisions concerning thematic loans
Art. 719. In Article 2, 6°, of the Act of 26 December 2013 on various provisions concerning the thematic loans, the words "accredited on the basis of Article 2bis of the law of 9 July 1975 relating to the control of the insurance companies" and the words "on the basis of Chapter Vter of the law of 9 July 1975 referred to above;" are replaced by the words "accredited on the basis of the insurance^er the Act of XXX referred to above; "
CHAPTER XIV. - Amendments to the law
of 4 April 2014 on insurance
Art. 720. In section 5 of the Insurance Act of April 4, 2014, the following amendments are made:
1° the 40° is replaced by the following:
"40° "reinsurance company": a company as defined in Article 5, paragraph 1^er, 2°, of the Act of XXX relating to the status and control of insurance or reinsurance companies; ";
2° the 42° is replaced by the following:
"42° "the law of XXX": the law of XXX relating to the status and control of insurance or reinsurance companies;".
Art. 721. In section 7 of the same law, the words ", of the law of July 9, 1975," are replaced by the words ", of the law of XXX,".
Art. 722. In article 17 of the same law, the words "seen to article 78 of the law of 9 July 1975" are replaced by the words "seen to articles 106 or 567, § 2, of the law of XXX".
Art. 723. In Article 18, § 1^er, of the same law, the words "seen to article 78 of the law of 9 July 1975" are replaced by the words "seen to articles 106 or 567, § 2, of the law of XXX".
Art. 724. In section 22 of the Act, the following amendments are made:
1° in paragraph 1^erthe words "or the provisions of the law of 9 July 1975" and the words "or with the provisions of the law of 9 July 1975" are replaced respectively by the words "or the provisions of the law of XXX" and by the words "or with the provisions of the law of XXX";
2° Paragraph 2 is repealed.
Art. 725. In Article 33, § 2, of the same Law, the words "as referred to in Article 68 of the Law of 9 July 1975" are replaced by the words "as referred to in Article 557 of the Law of XXX".
Art. 726. In article 34, paragraph 1^er, b) of the same law, the words "as referred to in section 68 of the Act of 9 July 1975" are replaced by the words "as referred to in section 557 of the Act of XXX".
Art. 727. In Article 41 of the Act, the words "in accordance with Article 21octies, § 2, paragraphs 1^er and 2, of the law of 9 July 1975" are replaced by the words "in accordance with section 504 of the law of XXX".
Art. 728. In section 204 of the Insurance Act of April 4, 2014, amended by the Act of October 26, 2015, the following amendments are made:
Paragraph 2 is replaced by the following:
"§2. The premium, deductible and/or benefit may be adapted to the date of the annual premium maturity based on the Consumer Price Index. ";
2° paragraph 3, paragraph 1^er, is replaced by the following:
"The premium, the deductible and/or the benefit may be adapted, on the date of the annual premium maturity and on the basis of one or more specific indices, to the costs of services covered by private health insurance contracts if and to the extent that the evolution of this or these indices exceeds that of the consumer price index. ";
Paragraph 3 is supplemented by the following paragraphs:
"Each insurance company automatically adapts the indexing clauses and terms in contracts, in accordance with this paragraph and the enforcement orders, including their subsequent amendments. It is adapted within a period of 2 years from the coming into force of these Orders and any subsequent amendments thereof. The insurance company shall inform the insurance owner of the amended indexing method and its terms by means of a reference to the notice of maturity.
The amendments resulting from the adaptation of existing contracts to this Act and its enforcement orders cannot justify the termination of the contract by the insurance licensee. ".
4° in paragraph 4 the words "no to Article 21octies of the Law of 9 July 1975." are replaced by the words "no to Article 504 of the Law of XXX 2015".
Art. 729. In Article 267, § 1^er, paragraph 4, of the same Act, the words "an insurance company subject to supplementary supervision on insurance companies within the meaning of section 91ter of the Act of 9 July 1975" are replaced by the words "an insurance company subject to group control within the meaning of Book II, Title V, Chapter III of the Law of XXX".
Art. 730. In article 297, § 2, of the same law, the words "in the sense given to them in the law of 9 July 1975." are replaced by the words "in the sense given to them in the law of XXX."
Art. 731. In article 302, § 2, 1°, of the same law, the words "or the law of 9 July 1975" are replaced by the words "or the law of XXX".
CHAPTER XV. - Amendments to the Act of 25 April 2014
Status and control of credit institutions
Art. 732. In section 2, 2°, of the Act of 25 April 2014 relating to the status and control of credit institutions, the words "regulated by the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words "regulated by the law of XXX relating to the status and control of insurance or reinsurance companies. ".
Art. 733. In section 3 of the Act, the following amendments are made:
1° the 26° is replaced by the following:
"26° the concepts of control, participation, link of participation, parent company, subsidiary, consortium and related company, the meaning conferred upon them by the decrees of execution of Article 106, § 1^erof this Act;"
2° on 31°, is replaced by the following:
"31° insurance company, a business referred to in Article 5, paragraph 1^er, 1°, of the Act of XXX relating to the status and control of insurance or reinsurance companies; ";
3° the 32° is replaced by the following:
"32° reinsurance company, a company referred to in Article 5, paragraph 1^er, 2°, of the Act of XXX relating to the status and control of insurance or reinsurance companies; ";
4° the 43° is replaced by the following:
"43° insurance holding company, an insurance holding company within the meaning of Article 338, 5°, of the Law of XXX relating to the status and control of insurance or reinsurance companies; ";
5° the 44° is replaced by the following:
"44° joint insurance holding company, a joint insurance holding company within the meaning of section 338, 6°, of the XXX statute and control of insurance or reinsurance companies;" .
Art. 734. In section 9 of the Act, the following amendments are made:
1° the sentence "If there is no qualified participation, the communication concerns the identity of the twenty main shareholders and their quotity in capital." is repealed;
2° Article 9, as amended by 1°, of this article and the current text of which shall form paragraph 1^er, is supplemented by a paragraph 2 which reads as follows:
"In the absence of qualified participation, the communication referred to in paragraph 1^er deals with the identity of the twenty main shareholders and their quotity in capital.".
Art. 735. In Article 20, § 1^erthe following amendments are made to the Act:
1° to 2°, the n) is replaced by the following:
"(n) to sections 83 and 87 of the Act of 9 July 1975 on the control of insurance companies; ";
2° the 2° is completed by a z/5 written as follows:
"z/5) to section 605 of the Act of XXX on the control of insurance or reinsurance companies; ";
3° to 3°, a d) written as follows is inserted:
"(d) to the articles referred to in section 605 of the Act of XXX relating to the control of insurance or reinsurance companies;".
Art. 736. In Article 72, § 1^er, 2°, of the same law, amended by the law of XXX, the words ", paragraph 1^er"are inserted between the words "to persons referred to in Article 9" and the words "and to the members of their different bodies".
Art. 737. In Article 164, § 3, 7°, of the same Law, the following amendments are made:
1° the words ", the law of July 9, 1975 relating to the control of insurance companies," are replaced by the words ", the law of XXX relating to the status and control of insurance or reinsurance companies,"
2° the words "the law of February 16, 2009 on reinsurance" are repealed.
Art. 738. In section 170 of the Act, the following amendments are made:
1° in paragraph 1^erParagraph 3 is repealed;
2° in paragraph 1^er, former paragraph 4, becoming paragraph 3, is replaced by the following:
"For the purposes of this paragraph, the control authority, in its capacity as a consolidated monitoring authority, obtains the agreement of the relevant authorities responsible for the control of the subsidiaries and the controller of the group in the insurance sector. ";
3° in paragraph 1^er, former paragraph 5 is repealed;
4° a paragraph 1/1 is inserted as follows:
§ 1/1. Without prejudice to the application of paragraph 2, where a credit institution at the head of a financial conglomerate or a joint financial company under Belgian law is subject to equivalent provisions of this Chapter, which deal on the one hand with the consolidated control on the basis and on the other hand with the complementary monitoring of conglomerates, and more particularly when these provisions relate to the control based on risks, the supervisory authority may decide not to apply ";
5° to paragraph 2, 1°, the words "and which constitutes the financial conglomerate," are inserted between the words "the group, as defined in Article 164, § 3," and the words "will be taken into consideration by derogation";
6° in paragraph 3, 2nd sentence, the words "The supervisory authority is concerted for this purpose" are repealed;
7° a paragraph 4 is inserted as follows:
§ 4. The supervisory authority, in its capacity as a consolidated monitoring authority, shall inform the EBA and the European Insurance and Pension Authority of the agreement obtained under paragraph 1^er, paragraph 3, of the decision taken under paragraph 1/1, and of the regulation of coordination made under § 3.".
Art. 739. In article 171, § 2, of the same law, between paragraph 3 and paragraph 4, a paragraph shall be inserted as follows:
"Without prejudice to Article 212, where the supervisory authority has been or is designated, under Article 111, paragraph 5 of Directive 2013/36/EU, as a consolidated supervisory authority for the exercise of the consolidated control in respect of an establishment of credit that falls under another Member State and whose parent company is a financial company or a consolidated financial company of Belgian law, without a figure of credit ".
Art. 740. In Book II, Title III, Chapter IV, Section II, Sub-section III, of the same Act, an article 183/1 is inserted as follows:
"Art. 183/1. A Belgian legal credit institution that constitutes a consortium with one or more other companies is subject to a consolidated control that applies to all the companies of the consortium and their subsidiaries. The provisions applicable to credit institutions referred to in section 165, 2°, shall apply in this case. ".
Art. 741. In the Dutch text of Article 194, § 2, of the same Law, the 4th is replaced by the following provision: "4° regelmatig geactualiseerde regelingen om bij te dragen tot de verwezenlijking en, in voorkomend geval, de ontwikkeling van passende herstel- en afwikkelingsmechanismen en -
Art. 742. In section 196, § 2, of the Act, the following amendments are made:
1° to 3°, the words "competent Belgian control authority" are replaced by the words "competent control authority";
2° to 5°, the words "and that Member State has" are replaced by the words "and has in this Member State".
Art. 743. In Article 196, § 3, of the same Law, the following amendments are made:
1° the words "paragraph 1^er"are replaced by the words "paragraph 2";
2° a paragraph 2 is inserted as follows:
"When the supervisory authority is designated, under Article 11, paragraph 3 of Directive 2002/87/EC, as coordinator for the exercise of the complementary supervision of the conglomerates in respect of a credit institution that falls under another Member State and whose parent company is a mixed financial company of Belgian law, without a Belgian credit institution or another regulated company of Belgian law subject to control^er, 2°, are applicable by analogy to the above-mentioned company, except for the derogatory provisions in the agreement between competent authorities referred to in Article 11, paragraph 3 of Directive 2002/87/EC.".
Art. 744. In Article 210, § 1^er, 2°, of the same law, the words ", in section 40 of the Act of 9 July 1975 on the control of insurance companies, in section 42 of the Act of 16 February 2009 on reinsurance" are replaced by the words ", in section 327 of the Act of XXX on the status and control of insurance or reinsurance companies".
Art. 745. In Article 213, § 1^er, paragraph 3, of the same law, the words "and these subsidiaries" between the words "if these companies" and the words "do not fall" are repealed.
Art. 746. In Article 217, § 1^erParagraph 1^er, of the same law, the words "as well as the mixed financial companies and their subsidiaries" are replaced by the words "as well as the mixed companies and their subsidiaries".
Art. 747. In article 219, § 4, paragraph 5, of the same law, the words "with the competent authorities concerned" are replaced by the words "with the relevant authorities".
Art. 748. In Article 3, § 1^er, paragraph 2 of Schedule VI to the Act, the words "the credit margin imposed by sections 15 and 91nonies of the Act of 9 July 1975 relating to the control of insurance companies." are replaced by the words "the solvency requirements in accordance with sections 151 and 358 of the Act of XXX relating to the status and control of insurance or reinsurance companies. ".
CHAPTER XVI. - Amendments to the Economic Law Code
Art. 749. In Article I.9, 72°, of the Economic Law Code, the words "seen to Article 2, § 1^er, of the Act of 9 July 1975 on the Control of Insurance Businesses;" are replaced by the words "in accordance with Article 5, paragraph 1^er, 1°, of the Act of XXX relating to the status and control of insurance or reinsurance companies;".
Art. 750. In Article VII.119, § 1^er, 2°, of the same Code, inserted by the law of 19 April 2014, the following amendments are made:
1° the words "by the King" are repealed;
2° the words "in accordance with the Act of 9 July 1975 on the control of insurance companies;" are replaced by the words "in accordance with the Act of XXX on the status and control of insurance or reinsurance companies;".
Art. 751. In section VII.173 of the same Code, inserted by the Act of 19 April 2014, the words "or insurance companies on the list provided for in section 4 of the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words "or as insurance companies on the list provided for in section 31 of the Act of XXX relating to the status and control of insurance or reinsurance companies".
Art. 752. In Article VII.176, § 3, of the same Code, inserted by the Act of 19 April 2014, the words "in Articles 4 and 66 of the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words "in Articles 31 and 555 of the Act of XXX relating to the status and control of insurance or reinsurance companies".
Art. 753. In Article XI.250, paragraph 2, of the same Code, inserted by the Act of 19 April 2014, the following amendments are made:
1° to 2°, the o) is replaced by the following:
"(o) to sections 83 to 87 of the Act of 9 July 1975 on the control of insurance companies; ";
2° the 2° is completed by a s) written as follows:
"(s) to section 605 of the XXX Act relating to the status and control of insurance or reinsurance companies;".
Art. 754. In Article XII.4, paragraph 1^er, of the same Code, inserted by the Act of 15 December 2013, the words "chapters IIIbis, IIIter, Vbis and Vter of the Act of 9 July 1975 relating to the control of insurance companies remain in application." are replaced by the words "Book II, Part II, Chapter V, Section 2 to 4, and Book III, Part I^er the Act of XXX relating to the status and control of insurance or reinsurance companies are applicable.".
CHAPTER XVII. - Other provisions
Art. 755. In laws that include references to Appendix I of the Royal Decree of 22 February 1991 on the general regulation of the control of insurance companies, these references must be read as references to Appendix I of the Act of XXX on the status and control of insurance or reinsurance companies, with respect to the "non-life" activity group and as references to Appendix II of the Act.
Art. 756. Without prejudice to the amendments made by sections 680 to 684, 686, 687 tot 696, 698, 699, 704 to 733, 735, 737, 744 and 748 to 754, in the laws including references to the Act of 9 July 1975 or to the Royal Decree of 22 February 1991 concerning the general regulation of insurance companies, these references must be read, if any, as
PART IV. - Abrogatory provisions
Art. 757. The Act of 9 July 1975 on the control of insurance companies is repealed.
Art. 758. The Reinsurance Act of February 16, 2009 is repealed.
LIVRE IX. - BACKGROUND
Art. 759. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 13 March 2016.
PHILIPPE
By the King:
Minister of Economy and Consumers,
K. PEETERS
The Minister of the Interior,
J. JAMBON
Minister of Finance,
J. VAN OVERTVELDT
Minister of Justice,
K. GEENS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives:
(www.lachambre.be)
Documents: 54-1584 - 2015/2016
Full report: February 18, 2016.

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