Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (recast) (Text with EEA relevance)
Statement of investment policy principles
Member States shall ensure that every IORP registered or authorised in their territories prepares and, at least every three years, reviews a written statement of investment-policy principles. That statement is to be revised without delay after any significant change in the investment policy. Member States shall provide for this statement to contain, at least, such matters as the investment risk measurement methods, the risk-management processes implemented and the strategic asset allocation with respect to the nature and duration of pension liabilities and how the investment policy takes environmental, social and governance factors into account. The statement shall be made publicly available.
CHAPTER 2 Outsourcing and investment management
Article 31
Outsourcing
Member States may permit or require IORPs registered or authorised in their territories to entrust any activities including key functions and the management of those IORPs, in whole or in part, to service providers operating on behalf of those IORPs.
Member States shall ensure that IORPs remain fully responsible for compliance with their obligations under this Directive when they outsource key functions or any other activities.
Outsourcing of key functions or any other activities shall not be undertaken in such a way as to lead to any of the following:
- (a) impairing the quality of the system of governance of the IORP concerned;
- (b) unduly increasing the operational risk;
- (c) impairing the ability of the competent authorities to monitor the compliance of the IORP with its obligations;
- (d) undermining continuous and satisfactory service to members and beneficiaries.
IORPs shall ensure the proper functioning of the outsourced activities through the process of selecting a service provider and the ongoing monitoring of the activities of that service provider.
Member States shall ensure that IORPs outsourcing key functions, the management of those IORPs, or other activities covered by this Directive enter into a written agreement with the service provider. Such agreement shall be legally enforceable and shall clearly define the rights and obligations of the IORP and the service provider.
Member States shall ensure that IORPs notify competent authorities in a timely manner of any outsourcing of the activities covered by this Directive. Where the outsourcing relates to the key functions or management of IORPs, this shall be notified to competent authorities before the agreement in respect of any such outsourcing enters into force. Member States shall also ensure that IORPs notify competent authorities of any subsequent important developments with respect to any outsourced activities.
Member States shall ensure that competent authorities have the power to request information from IORPs and from service providers about outsourced key functions or any other activities at any time.
Article 32
Investment management
Member States shall not restrict IORPs from appointing, for the management of the investment portfolio, investment managers established in another Member State and duly authorised for this activity, in accordance with Directives 2009/65/EC, 2009/138/EC, 2011/61/EU, 2013/36/EU and 2014/65/EU, as well as the authorised entities referred to in Article 2(1) of this Directive.
CHAPTER 3 Depositary
Article 33
Appointment of a depositary
In the case of an occupational pension scheme where members and beneficiaries fully bear the investment risk, the home Member State may require the IORP to appoint one or more depositaries for the safe-keeping of assets and oversight duties in accordance with Articles 34 and 35. The host Member State may require such IORPs to appoint one or more depositaries for the safe-keeping of assets and oversight duties in accordance with Articles 34 and 35 when carrying out cross-border activity in accordance with Article 11, provided that the appointment of a depositary is required under its national law.
For occupational pension schemes in which the members and beneficiaries do not fully bear the investment risk, the home Member State may require the IORP to appoint one or more depositaries for safe-keeping of assets or for safe-keeping of assets and oversight duties in accordance with Articles 34 and 35.
Member States shall not restrict IORPs from appointing depositaries established in another Member State and duly authorised in accordance with Directive 2013/36/EU or Directive 2014/65/EU, or accepted as a depositary for the purposes of Directive 2009/65/EC or Directive 2011/61/EU.
Member States shall take the necessary steps to enable competent authorities under their national law to prohibit, in accordance with Article 48, the free disposal of assets held by a depositary or custodian located within their territory at the request of the competent authority of the IORP's home Member State.
The depositary shall be appointed by means of a written contract. The contract shall stipulate the transmission of the information necessary for the depositary to perform its duties as set out in this Directive and in other relevant laws, regulations or administrative provisions.
When carrying out the tasks laid down in Articles 34 and 35, the IORP and the depositary shall act honestly, fairly, professionally, independently and in the interest of the scheme's members and beneficiaries.
A depositary shall not carry out activities with regard to the IORP which may create conflicts of interest between the IORP, the scheme's members and beneficiaries and itself, unless the depositary has functionally and hierarchically separated the performance of its depositary tasks from its other potentially conflicting tasks, and the potential conflicts of interest are properly identified, managed, monitored and disclosed to the scheme's members and beneficiaries and to the administrative, management or supervisory body of the IORP.
Where no depositary is appointed, IORPs shall make arrangements to prevent and resolve any conflict of interest in the course of tasks otherwise performed by a depositary and an asset manager.
Article 34
Safekeeping of assets and depositary liability
Where the assets of an IORP relating to a pension scheme consisting of financial instruments which can be held in custody are entrusted to a depositary for safekeeping, the depositary shall hold in custody all financial instruments which can be registered in a financial instruments account opened in the depositary's books and all financial instruments which can be physically delivered to the depositary.
For those purposes, the depositary shall ensure that the financial instruments which can be registered in a financial instruments account opened in the depositary's books are registered in the depositary's books within segregated accounts in accordance with the rules laid down in Directive 2014/65/EU, opened in the name of the IORP, so that they can be clearly identified as belonging to the IORP or the pension scheme's members and beneficiaries at all times.
Where the assets of an IORP relating to a pension scheme consist of other assets than those referred to in paragraph 1, the depositary shall verify that the IORP is the owner of the assets and shall maintain a record of those assets. The verification shall be carried out on the basis of information or documents provided by the IORP and, where available, on the basis of external evidence. The depositary shall keep its record up-to-date.
Member States shall ensure that a depositary is liable to the IORP and the members and beneficiaries for any loss suffered by them as a result of its unjustifiable failure to perform its obligations or its improper performance of them.
Member States shall ensure that a depositary's liability, as referred to in paragraph 3, shall not be affected by the fact that it has entrusted to a third party all or some of the assets in its safe-keeping.
Where no depositary is appointed for the safe-keeping of assets, IORPs shall, at least be required to:
- (a) ensure that financial instruments are subject to due care and protection;
- (b) keep records that enable the IORP to identify all assets at all times and without delay;
- (c) take the necessary measures to avoid conflicts of interest in relation to the safe-keeping of assets;
- (d) inform the competent authorities, upon request, about the manner in which assets are kept.
Article 35
Oversight duties
In addition to the tasks referred to in Article 34(1) and (2), the depositary appointed for oversight duties shall:
- (a) carry out instructions of the IORP, unless they conflict with national law or the IORP's rules;
- (b) ensure that in transactions involving the assets of an IORP relating to a pension scheme any consideration is remitted to the IORP within the usual time limits; and
- (c) ensure that income produced by assets is applied in accordance with the rules of the IORP.
Notwithstanding paragraph 1, the home Member State of the IORP may establish other oversight duties to be performed by the depositary.
Where no depositary is appointed for oversight duties, the IORP shall implement procedures which ensure that the tasks, otherwise subject to oversight by depositaries, are being duly performed within the IORP.
TITLE IV INFORMATION TO BE GIVEN TO PROSPECTIVE MEMBERS, MEMBERS AND BENEFICIARIES
CHAPTER 1 General provisions
Article 36
Principles
Taking into account the nature of the pension scheme established, Member States shall ensure that every IORP registered or authorised in their territories provides to:
- (a) prospective members: at least the information set out in Article 41;
- (b) members: at least the information set out in Articles 37 to 40, 42 and 44; and
- (c) beneficiaries: at least the information set out in Articles 37, 43 and 44.
The information referred to in paragraph 1 shall be:
- (a) regularly updated;
- (b) written in a clear manner, using clear, succinct and comprehensible language, avoiding the use of jargon and avoiding technical terms where everyday words can be used instead;
- (c) not misleading, and consistency shall be ensured in the vocabulary and content;
- (d) presented in a way that is easy to read;
- (e) available in an official language of the Member State whose social and labour law relevant to the field of occupational pension schemes is applicable to the pension scheme concerned; and
- (f) made available to prospective members, members and beneficiaries free of charge through electronic means, including on a durable medium or by means of a website, or on paper.
Member States may adopt or maintain further provisions on information to be given to prospective members, members and beneficiaries.
Article 37
General information on the pension scheme
Member States shall, in respect of every IORP registered or authorised in their territories, ensure that members and beneficiaries are sufficiently informed about the respective pension scheme operated by the IORP, in particular concerning:
- (a) the name of the IORP, the Member State in which the IORP is registered or authorised and the name of its competent authority;
- (b) the rights and obligations of the parties involved in the pension scheme;
- (c) information on the investment profile;
- (d) the nature of financial risks borne by the members and beneficiaries;
- (e) the conditions regarding full or partial guarantees under the pension scheme or of a given level of benefits or, where no guarantee is provided under the pension scheme, a statement to that effect;
- (f) the mechanisms protecting accrued entitlements or the benefit reduction mechanisms, if any;
- (g) where members bear investment risk or can take investment decisions, information on the past performance of investments related to the pension scheme for a minimum of five years, or for all the years that the scheme has been operating where this is less than five years;
- (h) the structure of costs borne by members and beneficiaries, for schemes which do not provide for a given level of benefits;
- (i) the options available to members and beneficiaries in receiving their retirement benefits;
- (j) in case a member has the right to transfer pension rights, further information about the arrangements relating to such a transfer.
For schemes in which members bear an investment risk and which provide for more than one option with different investment profiles, the members shall be informed of the conditions regarding the range of investment options available, and, where applicable, the default investment option and, the pension scheme's rule to allocate a particular member to an investment option.
Members and beneficiaries or their representatives shall receive within a reasonable time, any relevant information regarding changes to the pension scheme rules. In addition, IORPs shall make available to them an explanation of the impact on members and beneficiaries of significant changes to technical provisions.
IORPs shall make available the general information on the pension scheme set out in this Article.
CHAPTER 2 Pension Benefit Statement and supplementary information
Article 38
General provisions
Member States shall require IORPs to draw up a concise document containing key information for each member taking into consideration the specific nature of national pension systems and of relevant national social, labour and tax law (‘Pension Benefit Statement’). The title of the document shall contain the words ‘Pension Benefit Statement’.
The exact date to which the information in the Pension Benefit Statement refers to shall be stated prominently.
Members States shall require that the information contained in the Pension Benefit Statement is accurate, updated and made available to each member free of charge through electronic means, including on a durable medium or by means of a website, or on paper, at least annually. A paper copy shall be provided to members on request in addition to any information through electronic means.
Any material change to the information contained in the Pension Benefit Statement compared to the previous year shall be clearly indicated.
Member States shall set out rules to determine the assumptions of the projections referred to in point (d) of Article 39(1). Those rules shall be applied by IORPs to determine, where relevant, the annual rate of nominal investment returns, the annual rate of inflation and the trend of future wages.
Article 39
Pension Benefit Statement
The Pension Benefit Statement shall include, at least, the following key information for members:
- (a) personal details of the member, including a clear indication of the statutory retirement age, the retirement age laid down in the pension scheme or estimated by the IORP, or the retirement age set by the member, as applicable;
- (b) the name of the IORP and its contact address and identification of the pension scheme of the member;
- (c) where applicable, information on full or partial guarantees under the pension scheme and if relevant, where further information can be found;
- (d) information on pension benefit projections based on the retirement age as specified in point (a), and a disclaimer that those projections may differ from the final value of the benefits received. If the pension benefit projections are based on economic scenarios, that information shall also include a best estimate scenario and an unfavourable scenario, taking into consideration the specific nature of the pension scheme;
- (e) information on the accrued entitlements or accumulated capital taking into consideration the specific nature of the pension scheme;
- (f) information on the contributions paid by the sponsoring undertaking and the member into the pension scheme, at least over the last 12 months, taking into consideration the specific nature of the pension scheme;
- (g) a breakdown of the costs deducted by the IORP at least over the last 12 months;
- (h) information on the funding level of the pension scheme as a whole.
In accordance with Article 60, Member States shall exchange best practices with regard to the format and the content of the Pension Benefit Statement.
Article 40
Supplementary information
The Pension Benefit Statement shall specify where and how to obtain supplementary information including:
- (a) further practical information about the member's options provided under the pension scheme;
- (b) the information specified in Articles 29 and 30;
- (c) where applicable, information about the assumptions used for amounts expressed in annuities, in particular with respect to the annuity rate, the type of provider and the duration of the annuity;
- (d) information on the level of benefits, in case of cessation of employment.
For pension schemes where members bear investment risk and where an investment option is imposed on the member by a specific rule specified in the pension scheme, the Pension Benefit Statement shall indicate where additional information is available.
CHAPTER 3 Other information and documents to be provided
Article 41
Information to be given to prospective members
Member States shall require IORPs to ensure that prospective members who are not automatically enrolled in a pension scheme are informed, before they join that pension scheme, about:
- (a) any relevant options available to them including investment options;
- (b) the relevant features of the pension scheme including the kind of benefits;
- (c) information on whether and how environmental, climate, social and corporate governance factors are considered in the investment approach; and
- (d) where further information is available.
Where members bear investment risk or can take investment decisions, prospective members shall be provided with information on the past performance of investments related to the pension scheme for a minimum of five years, or for all the years that the scheme has been operating where this is less than five years and information on the structure of costs borne by members and beneficiaries.
Member States shall require IORPs to ensure that prospective members who are automatically enrolled in a pension scheme are promptly after their enrolment, informed about:
- (a) any relevant options available to them including investment options;
- (b) the relevant features of the pension scheme including the kind of benefits;
- (c) information on whether and how environmental, climate, social and corporate governance factors are considered in the investment approach; and
- (d) where further information is available.
Article 42
Information to be given to members during the pre-retirement phase
In addition to the Pension Benefit Statement, IORPs shall provide each member, in due time before the retirement age as specified in point (a) of Article 39(1), or at the request of the member, with information about the benefit pay-out options available in taking their retirement benefits.
Article 43
Information to be given to beneficiaries during the pay-out phase
Member States shall require IORPs to periodically provide beneficiaries with information about the benefits due and the corresponding pay-out options.
IORPs shall inform beneficiaries without delay after a final decision has been taken resulting in any reduction in the level of benefits due, and three months before that decision is implemented.
When a significant level of investment risk is borne by beneficiaries in the pay-out phase, Member States shall ensure that beneficiaries receive appropriate information regularly.
Article 44
Additional information to be given on request to members and beneficiaries
On request of a member, a beneficiary or their representatives, the IORP shall provide the following additional information:
- (a) the annual accounts and the annual reports referred to in Article 29, or where an IORP is responsible for more than one scheme, those accounts and reports relating to their particular pension scheme;
- (b) the statement of investment policy principles, referred to in Article 30;
- (c) any further information about the assumptions used to generate the projections referred to in point (d) of Article 39(1).
TITLE V PRUDENTIAL SUPERVISION
CHAPTER 1 General rules on prudential supervision
Article 45
Main objective of prudential supervision
The main objective of prudential supervision is to protect the rights of members and beneficiaries and to ensure the stability and soundness of the IORPs.
Member States shall ensure that the competent authorities are provided with the necessary means, and have the relevant expertise, capacity, and mandate to achieve the main objective of supervision referred to in paragraph 1.
Article 46
Scope of prudential supervision
Member States shall ensure that IORPs are subject to prudential supervision including the supervision of the following where applicable:
- (a) conditions of operation;
- (b) technical provisions;
- (c) funding of technical provisions;
- (d) regulatory own funds;
- (e) available solvency margin;
- (f) required solvency margin;
- (g) investment rules;
- (h) investment management;
- (i) system of governance; and
- (j) information to be provided to members and beneficiaries.
Article 47
General principles of prudential supervision
The competent authorities of the home Member State shall be responsible for the prudential supervision of IORPs.
Member States shall ensure that supervision is based on a forward-looking and risk-based approach.
Supervision of IORPs shall comprise an appropriate combination of off-site activities and on-site inspections.
Supervisory powers shall be applied in a manner which is timely and proportionate to the size, nature, scale and complexity of the activities of the IORP.
Member States shall ensure that the competent authorities duly consider the potential impact of their actions on the stability of the financial systems in the Union, in particular in emergency situations.
Article 48
Powers of intervention and duties of the competent authorities
The competent authorities shall require every IORP registered or authorised in their territories to have sound administrative and accounting procedures and adequate internal control mechanisms.
Without prejudice to the supervisory powers of competent authorities and the right of Member States to provide for and impose criminal sanctions, Member States shall ensure that their competent authorities may impose administrative sanctions and other measures applicable to all infringements of the national provisions implementing this Directive, and shall take all measures necessary to ensure that they are implemented. Member States shall ensure that their administrative sanctions and other measures are effective, proportionate and dissuasive.
Member States may decide not to lay down rules on administrative sanctions under this Directive for infringements which are subject to criminal sanctions under their national law. In that case, Member States shall communicate to the Commission the relevant criminal law provisions.
Member States shall ensure that the competent authorities publish any administrative sanction or other measure that has been imposed for breaches of the national provisions implementing this Directive and against which no appeal was lodged in time, without undue delay, including information on the type and nature of the breach and the identity of persons responsible for it. However, where the publication of the identity of the legal persons, or identity or personal data of natural persons, is considered by the competent authority to be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data or where publication jeopardises the stability of financial markets or an ongoing investigation, the competent authority may decide to defer publication, not to publish, or to publish the sanctions on an anonymous basis.
Any decision to prohibit or restrict the activities of an IORP shall contain detailed reasons and be notified to the IORP in question. That decision shall also be notified to EIOPA which shall communicate it to all competent authorities in the case of cross-border activity as referred to in Article 11.
Competent authorities may also restrict or prohibit the free disposal of the IORP's assets when, in particular:
- (a) the IORP has failed to establish sufficient technical provisions in respect of the entire business or has insufficient assets to cover the technical provisions;
- (b) the IORP has failed to hold the regulatory own funds.
In order to safeguard the interests of members and beneficiaries, the competent authorities may transfer the powers which the persons running an IORP registered or authorised in their territories hold in accordance with the law of the home Member State wholly or partly to a special representative who is fit to exercise those powers.
The competent authorities may prohibit or restrict the activities of an IORP registered or authorised in their territories in particular if:
- (a) the IORP fails to protect adequately the interests of scheme members and beneficiaries;
- (b) the IORP no longer fulfils the conditions of operation;
- (c) the IORP fails seriously in its obligations under the rules to which it is subject;
- (d) in the case of cross-border activity, the IORP does not respect the requirements of social and labour law of the host Member State relevant to the field of occupational pension schemes.
Member States shall ensure that decisions taken in respect of an IORP under laws, regulations and administrative provisions adopted in accordance with this Directive are subject to a right of appeal to the courts.
Article 49
Supervisory review process
Member States shall ensure that competent authorities have the necessary powers to review the strategies, processes and reporting procedures which are established by IORPs to comply with the laws, regulations and administrative provisions adopted pursuant to this Directive, taking into account the size, nature, scale and complexity of the activities of the IORP.
That review shall take into account the circumstances in which the IORPs are operating, and, where relevant, the parties carrying out outsourced key functions or any other activities for them. The review shall comprise the following elements:
- (a) an assessment of the qualitative requirements relating to the system of governance;
- (b) an assessment of the risks the IORP faces;
- (c) an assessment of the ability of the IORP to assess and manage those risks.
Member States shall ensure that competent authorities have monitoring tools, including stress-tests, that enable them to identify deteriorating financial conditions in an IORP and to monitor how a deterioration is remedied.
The competent authorities shall have the necessary powers to require IORPs to remedy weaknesses or deficiencies identified in the supervisory review process.
The competent authorities shall establish the minimum frequency and the scope of the review laid down in paragraph 1 having regard to the size, nature, scale and complexity of the activities of the IORP concerned.
Article 50
Information to be provided to the competent authorities
Member States shall ensure that the competent authorities, in respect of any IORP registered or authorised in their territories, have the necessary powers and means to:
- (a) require the IORP, the administrative, management or supervisory body of the IORP or the persons who effectively run the IORP or carry out key functions to supply at any time information about all business matters or forward all business documents;
- (b) supervise relationships between the IORP and other companies or between IORPs, when IORPs outsource key functions or any other activities to those other companies or IORPs and all subsequent re-outsourcing, influencing the financial situation of the IORP or being in a material way relevant for effective supervision;
- (c) obtain the following documents: the own-risk assessment, the statement of investment-policy principles, the annual accounts and the annual reports, and all other documents necessary for the purposes of supervision;
- (d) lay down which documents are necessary for the purposes of supervision, including:
- (i) internal interim reports;
- (ii) actuarial valuations and detailed assumptions;
- (iii) asset-liability studies;
- (iv) evidence of consistency with the investment-policy principles;
- (v) evidence that contributions have been paid in as planned;
- (vi) reports by the persons responsible for auditing the annual accounts referred to in Article 29;
- (e) carry out on-site inspections at the IORP's premises and, where appropriate, on outsourced and all subsequent re-outsourced activities to check if activities are carried out in accordance with the supervisory rules;
- (f) request information from IORPs about outsourced and all subsequent re-outsourced activities at any time.
Article 51
Transparency and accountability
Member States shall ensure that the competent authorities conduct the tasks laid down in this Directive in a transparent, independent and accountable manner with due respect for the protection of confidential information.
Member States shall ensure that the following information is publicly disclosed:
- (a) the texts of laws, regulations, administrative rules and general guidance in the field of occupational pension schemes, and information about whether the Member State chooses to apply this Directive in accordance with Articles 4 and 5;
- (b) information regarding the supervisory review process as set out in Article 49;
- (c) aggregate statistical data on key aspects of the application of the prudential framework;
- (d) the main objective of prudential supervision and information on the main functions and activities of the competent authorities;
- (e) the rules on administrative sanctions and other measures applicable to breaches of national provisions adopted pursuant to this Directive.
Member States shall ensure that they have in place and apply transparent procedures regarding the appointment and dismissal of the members of the governing and managing bodies of their competent authorities.
CHAPTER 2 Professional secrecy and exchange of information
Article 52
Professional secrecy
Member States shall lay down rules to ensure that all persons who are working or who have worked for the competent authorities, as well as auditors and experts acting on behalf of those authorities, are bound by the obligation of professional secrecy. Without prejudice to cases covered by criminal law, those persons shall not divulge confidential information received by them in the course of their duties to any person or authority, except in summary or aggregate form ensuring that individual IORPs cannot be identified.
By derogation from paragraph 1, where a pension scheme is being wound up, Member States may allow confidential information to be divulged in civil or commercial proceedings.
Article 53
Use of confidential information
Member States shall ensure that competent authorities which receive confidential information under this Directive use it only in the course of their duties and for the following purposes:
- (a) to check that the conditions for taking up occupational retirement provision business are met by IORPs before commencing their activities;
- (b) to facilitate the monitoring of the activities of IORPs, including the monitoring of the technical provisions, the solvency, the system of governance, and the information provided to members and beneficiaries;
- (c) to impose corrective measures, including administrative sanctions;
- (d) where permitted by national law, to publish key performance indicators for all individual IORPs, which may assist members and beneficiaries in taking financial decisions regarding their pension;
- (e) in appeals against decisions of the competent authorities taken in accordance with the provisions transposing this Directive;
- (f) in court proceedings regarding the provisions transposing this Directive.
Article 54
European Parliament right of inquiry
Articles 52 and 53 shall be without prejudice to the right of inquiry conferred on the European Parliament by Article 226 of the Treaty on the Functioning of the European Union.
Article 55
Exchange of information between authorities
Articles 52 and 53 shall not preclude any of the following:
- (a) the exchange of information between competent authorities in the same Member State in the discharge of their supervisory functions;
- (b) the exchange of information between competent authorities in different Member States in the discharge of their supervisory functions;
- (c) the exchange of information, in the discharge of their supervisory functions, between competent authorities and any of the following which are situated in the same Member State:
- (i) authorities responsible for the supervision of financial sector entities and other financial organisations and the authorities responsible for the supervision of financial markets;
- (ii) authorities or bodies charged with responsibility for maintaining the stability of the financial system in Member States through the use of macro-prudential rules;
- (iii) bodies involved in the winding up of a pension scheme and in other similar procedures;
- (iv) reorganisation bodies or authorities aiming at protecting the stability of the financial system;
- (v) persons responsible for carrying out statutory audits of the accounts of IORPs, insurance undertakings and other financial institutions;
- (d) the disclosure, to bodies which administer the winding up of a pension scheme, of information necessary for the performance of their duties.
The information received by the authorities, bodies and persons referred to in paragraph 1 shall be subject to the rules on professional secrecy laid down in Article 52.
Articles 52 and 53 shall not preclude Member States from authorising exchanges of information between the competent authorities and any of the following:
- (a) the authorities responsible for overseeing the bodies involved in the winding up of pension schemes and other similar procedures;
- (b) the authorities responsible for overseeing the persons charged with carrying out statutory audits of the accounts of IORPs, insurance undertakings and other financial institutions;
- (c) independent actuaries of IORPs carrying out supervision of those IORPs and the bodies responsible for overseeing such actuaries.
Article 56
Transmission of information to central banks, monetary authorities, European Supervisory Authorities and the European Systemic Risk Board
Articles 52 and 53 shall not prevent a competent authority from transmitting information to the following entities for the purposes of the exercise of their respective tasks:
- (a) central banks and other bodies with a similar function in their capacity as monetary authorities;
- (b) other public authorities responsible for overseeing payment systems, where appropriate;
- (c) the European Systemic Risk Board, EIOPA, the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council ([^E0009]) and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council ([^E0010]).
Articles 55 to 58 shall not prevent the authorities or bodies referred to in points (a), (b) and (c) of paragraph 1 of this Article from communicating to the competent authorities such information as the competent authorities may need for the purposes of Article 53.
Information received in accordance with paragraphs 1 and 2 shall be subject to professional secrecy requirements at least equivalent to those as set out in this Directive.
Article 57
Disclosure of information to government administrations responsible for financial legislation
Articles 52(1), 53 and 58(1) shall not preclude Member States from authorising the disclosure of confidential information between competent authorities and other departments of their central government administrations responsible for the enforcement of legislation on the supervision of IORPs, credit institutions, financial institutions, investment services and insurance undertakings, or inspectors acting on behalf of those departments.
That disclosure shall be made only where necessary for reasons of prudential control, and prevention and resolution of failing IORPs. Without prejudice to paragraph 2 of this Article, persons having access to the information shall be subject to professional secrecy requirements at least equivalent to those set out in this Directive. Member States shall, however, provide the information received under Article 55, and information obtained by means of on-site verification may only be disclosed with the express consent of the competent authority from which the information originated or of the competent authority of the Member State in which the on-site verification was carried out.
Member States may authorise the disclosure of confidential information relating to the prudential supervision of IORPs to parliamentary enquiry committees or courts of auditors in their Member State and other entities in charge of enquiries in their Member State, where all of the following conditions are fulfilled:
- (a) the entities have the competence under national law to investigate or scrutinise the actions of authorities responsible for the supervision of IORPs or for laws on such supervision;
- (b) the information is strictly necessary for fulfilling the competence referred to in point (a);
- (c) the persons with access to the information are subject to professional secrecy requirements under national law at least equivalent to those set out in this Directive;
- (d) if the information originates from another Member State, that information is disclosed with the explicit agreement of the originating competent authorities and solely for the purposes for which those authorities gave their agreement.
Article 58
Conditions for the exchange of information
For exchanges of information under Articles 55, transmission of information under Article 56 and disclosure of information under Article 57, Member States shall require that at least the following conditions are met:
- (a) the information shall be exchanged, transmitted or disclosed for the purpose of carrying out oversight or supervision;
- (b) the information received shall be subject to the obligation of professional secrecy laid down in Article 52;
- (c) where the information originates from another Member State, it shall not be disclosed without the express agreement of the competent authority from which it originates and, where appropriate, solely for the purposes for which that authority gave its agreement.
Article 53 shall not preclude Member States from authorising, with the aim of strengthening the stability, and integrity, of the financial system, the exchange of information between the competent authorities and the authorities or bodies responsible for the detection and investigation of breaches of company law applicable to sponsoring undertakings.
Member States which apply the first subparagraph shall require that at least the following conditions are met:
- (a) the information must be intended for the purpose of detection, and investigation and scrutiny as referred to in point (a) of Article 57(2);
- (b) information received must be subject to the obligation of professional secrecy laid down in Article 52;
- (c) where the information originates from another Member State, it shall not be disclosed without the express agreement of the competent authority from which it originates and, where appropriate, solely for the purposes for which that authority gave its agreement.
Where, in a Member State, the authorities or bodies referred to in the first subparagraph of paragraph 2 perform their task of detection or investigation with the aid of persons appointed, in view of their specific competence, for that purpose and not employed in the public sector, the possibility of exchanging information provided for in Article 57(2) shall apply.
Article 59
National provisions of a prudential nature
Member States shall report to EIOPA their national provisions of a prudential nature relevant to the field of occupational pension schemes, which are not covered by national social and labour law on the organisation of pension systems as referred to in Article 11(1).
Member States shall update that information on a regular basis and at least every two years and EIOPA shall make that information available on its website.
TITLE VI FINAL PROVISIONS
Article 60
Cooperation between Member States, the Commission and EIOPA
Member States shall ensure, in an appropriate manner, the uniform application of this Directive through regular exchanges of information and experience with a view to developing best practices in this sphere and closer cooperation with the involvement of the social partners where applicable, and by so doing, preventing distortions of competition and creating the conditions required for unproblematic cross-border membership.
The Commission and the competent authorities of the Member States shall collaborate closely with a view to facilitating supervision of the operations of IORPs.
The competent authorities of the Member States shall cooperate with EIOPA for the purposes of this Directive, in accordance with Regulation (EU) No 1094/2010 and shall without delay provide EIOPA with all information necessary to carry out its duties under this Directive and under Regulation (EU) No 1094/2010, in accordance with Article 35 of that Regulation.
Each Member State shall inform the Commission and EIOPA of any major difficulties to which the application of this Directive gives rise. The Commission, EIOPA and the competent authorities of the Member States concerned shall examine such difficulties as quickly as possible in order to find an appropriate solution.
Article 61
Processing of personal data
With regard to the processing of personal data within the framework of this Directive, IORPs and competent authorities shall carry out their tasks for the purposes of this Directive in accordance with Regulation (EU) 2016/679. With regard to the processing of personal data by EIOPA within the framework of this Directive, EIOPA shall comply with Regulation (EC) No 45/2001.
Article 62
Evaluation and review
By 13 January 2023, the Commission shall review this Directive and report on its implementation and effectiveness to the European Parliament and to the Council.
The review referred to in paragraph 1 shall in particular consider:
- (a) the adequacy of this Directive from a prudential and governance point of view;
- (b) cross-border activity;
- (c) the experience acquired in applying this Directive and its impact on the stability of IORPs;
- (d) the Pension Benefit Statement.
Article 63
Amendment of Directive 2009/138/EC
Directive 2009/138/EC is amended as follows:
- (1) in Article 13, point (7) is replaced by the following: ‘(7)“reinsurance” means one of the following:
- (a) the activity consisting in accepting risks ceded by an insurance undertaking or third-country insurance undertaking, or by another reinsurance undertaking or third-country reinsurance undertaking;
- (b) in the case of the association of underwriters known as Lloyd's, the activity consisting in accepting risks, ceded by any member of Lloyd's, by an insurance or reinsurance undertaking other than the association of underwriters known as Lloyd's; or
- (c) the provision of cover by a reinsurance undertaking to an institution that falls within the scope of Directive (EU) 2016/2341 of the European Parliament and of the Council ([^E0011]);
- (2) in Article 308b, paragraph 15 is replaced by the following: ‘15. Where, on the entry into force of this Directive, home Member States applied provisions referred to in Article 4 of Directive (EU) 2016/2341, those home Member States may continue to apply the laws, regulations and administrative provisions that had been adopted by them with a view to complying with Articles 1 to 19, Articles 27 to 30, Articles 32 to 35 and Articles 37 to 67 of Directive 2002/83/EC as in force on 31 December 2015 for a transitional period expiring on 31 December 2022. Where a home Member State continues to apply those laws, regulations and administrative provisions, insurance undertakings in that home Member State shall calculate their solvency capital requirement as the sum of the following:
- (a) a notional solvency capital requirement with respect to their insurance activity, calculated without the occupational retirement provision business under Article 4 of Directive (EU) 2016/2341;
- (b) the solvency margin with respect to the occupational retirement provision business, calculated in accordance with the laws, regulations and administrative provisions that have been adopted to comply with Article 28 of Directive 2002/83/EC. By 31 December 2017, the Commission shall submit a report to the European Parliament and to the Council, on whether the period referred to in the first subparagraph should be extended, taking account of changes to Union or national law resulting from this Directive.’.
Article 63a
Accessibility of information on the European single access point
From 10 January 2030, Member States shall ensure that, when making public any information referred to in Article 23(2), Article 29 and Article 30 of this Directive, IORPs submit that information at the same time to the relevant collection body referred to in paragraph 3 of this Article for the purpose of making it accessible on the European single access point (ESAP) established under Regulation (EU) 2023/2859 of the European Parliament and of the Council ([^E0012]).
Member States shall ensure that the information complies with the following requirements:
- (a) be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859 or, where required by Union law, in a machine-readable format, as defined in Article 2, point (4), of that Regulation;
- (b) be accompanied by the following metadata:
- (i) all the names of the IORP to which the information relates;
- (ii) the legal entity identifier of the IORP, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859;
- (iii) the size of the IORP by category, as specified pursuant to Article 7(4), point (d), of that Regulation;
- (iv) the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation;
- (v) an indication of whether the information contains personal data.
For the purposes of paragraph 1, point (b)(ii), Member States shall ensure that IORPs obtain a legal entity identifier.
By 9 January 2030, for the purpose of making the information referred to in paragraph 1 of this Article accessible on ESAP, Member States shall designate at least one collection body as defined in Article 2, point (2), of Regulation (EU) 2023/2859 and notify ESMA thereof.
From 10 January 2030, Member States shall ensure that the information referred to in Article 48(4) of this Directive is made accessible on ESAP. For that purpose, the collection body as defined in Article 2, point (2), of Regulation (EU) 2023/2859 shall be the competent authority.
Members States shall ensure that the information complies with the following requirements:
- (a) be submitted in a data extractable format as defined in Article 2, point (3), of Regulation (EU) 2023/2859;
- (b) be accompanied by the following metadata:
- (i) all the names of the person on whom the administrative sanction or other measure was imposed to which the information relates;
- (ii) where available, the legal entity identifier of the person on whom the administrative sanction or other measure was imposed, as specified pursuant to Article 7(4), point (b), of Regulation (EU) 2023/2859;
- (iii) the type of information, as classified pursuant to Article 7(4), point (c), of that Regulation;
- (iv) an indication of whether the information contains personal data.
For the purpose of ensuring the efficient collection and management of information submitted in accordance with paragraph 1, EIOPA shall develop draft implementing technical standards to specify the following:
- (a) any other metadata to accompany the information;
- (b) the structuring of data in the information;
- (c) for which information a machine-readable format is required and, in such cases, which machine-readable format is to be used.
For the purposes of point (c), EIOPA shall assess the advantages and disadvantages of different machine-readable formats and conduct appropriate field tests.
EIOPA shall submit those draft implementing technical standards to the Commission.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1094/2010.
Where necessary, EIOPA shall adopt guidelines to ensure that the metadata submitted in accordance with paragraph 5, first subparagraph, point (a), are correct.
Article 64
Transposition
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 13 January 2019. They shall immediately communicate the text of those measures to the Commission.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 65
Repeal
Directive 2003/41/EC, as amended by the Directives listed in Annex I, Part A, is repealed with effect from 13 January 2019 without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and the dates of application of the Directives set out in Annex I, Part B.
References to the repealed Directive 2003/41/EC shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 66
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 67
Addressees
This Directive is addressed to the Member States.
ANNEX I
PART A
Repealed Directive with list of its successive amendments
(referred to in Article 65)
| Directive 2003/41/EC of the European Parliament and of the Council (OJ L 235, 23.9.2003, p. 10). | |
| Directive 2009/138/EC of the European Parliament and of the Council (OJ L 335, 17.12.2009, p. 1). | Article 303 only |
| Directive 2010/78/EU of the European Parliament and of the Council (OJ L 331, 15.12.2010, p. 120). | Article 4 only |
| Directive 2011/61/EU of the European Parliament and of the Council (OJ L 174, 1.7.2011, p. 1). | Article 62 only |
| Directive 2013/14/EU of the European Parliament and of the Council (OJ L 145, 31.5.2013, p. 1). | Article 1 only |
PART B
List of time-limits for transposition into national law and application
(referred to in Article 65)
| Directive | Time-limit for transposition | Date of application |
|---|---|---|
| 2003/41/EC | 23.9.2005 | 23.9.2005 |
| 2009/138/EC | 31.3.2015 | 1.1.2016 |
| 2010/78/EU | 31.12.2011 | 31.12.2011 |
| 2011/61/EU | 22.7.2013 | 22.7.2013 |
| 2013/14/EU | 21.12.2014 | 21.12.2014 |
ANNEX II
Correlation Table
| Directive 2003/41/EC | This Directive |
|---|---|
| Article 1 | Article 1 |
| Article 2 | Article 2 |
| Article 3 | Article 3 |
| Article 4 | Article 4 |
| Article 5 | Article 5 |
| Article 6(a) | Article 6(1) |
| Article 6(b) | Article 6(2) |
| Article 6(c) | Article 6(3) |
| Article 6(d) | Article 6(4) |
| Article 6(e) | Article 6(5) |
| Article 6(f) | Article 6(6) Article 6(7) |
| Article 6(g) | Article 6(8) |
| Article 6(h) | Article 6(9) |
| Article 6(i) | Article 6(10) |
| Article 6(j) | Article 6(11) Article 6(12) to (19) |
| Article 7 | Article 7 |
| Article 8 | Article 8 |
| Article 9(1)(a) | Article 9 |
| Article 9(1)(c) | Article 10(1)(a) |
| Article 9(1)(e) | Article 10(1)(b) |
| Article 9(2) | Article 10(2) |
| Articles 20, 9(5) | Article 11 Article 12 |
| Article 15(1) to (5) | Article 13(1) to (5) |
| Article 15(6) | |
| Article 16 | Article 14 |
| Article 17 | Article 15 |
| Article 17a(1) to (4) | Article 16(1) to (4) |
| Article 17a(5) | |
| Article 17b | Article 17 |
| Article 17c | |
| Article 17d | Article 18 |
| Article 18 | Article 19 Article 20 Article 21 |
| Article 9(1)(b) | Article 22(1) Article 22(2) to (7) Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 |
| Article 10 | Article 29 |
| Article 12 | Article 30 |
| Article 9(4) | Article 31(1) Article 31(2) to (7) |
| Article 19(1) | Article 32 |
| Article 19(2) second subparagraph | Article 33(1) Article 33(2) |
| Article 19(2) first subparagraph | Article 33(3) |
| Article 19(3) | Article 33(4) Article 33(5) to (8) Article 34 Article 35 Article 36 |
| Article 9(1)(f) | Article 37(1) |
| Article 11(4)(c) | Article 37(2) |
| Article 11(2)(b) | Article 37(3) Article 37(4) Article 38 Article 39 Article 40(1)(a) to (c) |
| Article 11(4)(b) | Article 40(1)(d) Article 40(2) Article 41 Article 42 |
| Article 11(5) | Article 43 |
| Article 11(2)(a) | Article 44(a) |
| Article 11(3) | Article 44(b) Article 44(c) Article 45 Article 46 Article 47 |
| Article 14(1) | Article 48(1) |
| Article 14(2) first subparagraph | Article 48(2) Article 48(3) to (5) |
| Article 14(2) second subparagraph | Article 48(6) |
| Article 14(3) to (5) | Article 48(7) to (9) Article 49 |
| Article 13(1) | Article 50 |
| Article 13(2) | |
| Article 51 Article 52 Article 53 Article 54 Article 55 Article 56 Article 57 Article 58 | |
| Article 20(11) first subparagraph | Article 59(1) |
| Article 20(11) second subparagraph | Article 59(2) |
| Article 20(11) third and fourth subparagraphs | |
| Article 21 | Article 60 Article 61 Article 62 Article 63 |
| Article 22 | Article 64 Article 65 Article 66 Article 67 |
[^E0001]: Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1).
[^E0002]: Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).
[^E0003]: Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).
[^E0004]: Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
[^E0005]: Directive 2013/36/EU of European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
[^E0006]: Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
[^E0007]: Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies (OJ L 302, 17.11.2009, p. 1).
[^E0008]: Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014, and (EU) 2016/1011 (OJ L 333, 27.12.2022, p.1).
[^E0009]: Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12).
[^E0010]: Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
[^E0011]: Directive (EU) 2016/2341 of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (OJ L 354, 23.12.2016, p. 37)’;
[^E0012]: Regulation (EU) 2023/2859 of the European Parliament and of the Council of 13 December 2023 establishing a European single access point providing centralised access to publicly available information of relevance to financial services, capital markets and sustainability (OL L, 2023/2859, 20.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2859/oj).
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