Key Benefits:
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Proposal for Law No 326 /XII
Exhibition of Motives
This Law transposes to the internal legal order the Directive No 2009 /138/CE, of the
European Parliament and of the Council of November 25, 2009 on access to
insurance and reinsurance activity and to your exercise (Solvency II), amended by the Directives
n. points 2011 /89/UE, of the European Parliament and of the Council of November 16, 2011,
2012 /23/UE, of the European Parliament and of the Council of September 12, 2012,
2013 /23/UE, of the Council of May 13, 2013, 2013 /58/UE, of the European Parliament
and of the Council, of December 11, 2013, and 2014 /51/UE, of the European Parliament and of the
Council, of April 16, 2014.
The Solvency II regime, which turns out to be transposing, connates a new paradigm of
regulation and supervision of the insurer and reinsurer activity, intended to strengthen the
financial soundness of insurance and reinsurance companies, stability and competitiveness
of the insurer sector and the proper functioning of the internal market, having as a corollary to
protection of policyholders, insured persons and beneficiaries.
In addition to consigning a new regime, the Directive Solvency II has reshaped and consolidated
in a single articulated 13 directive applicable to the insurer sector, repealed with effect to 1
of January 2016.
In this context, the transposition in appreciation justifies and imposes a general review of the regime
legal of the access and exercise of the insurer and reinsurer activity, approved by the
Decree-Law No 94-B/98 of April 17. This Law thus constitutes a milestone in the
consolidation of a new legal regime applicable to the insurer sector, pese though the
legislation and regulation in force have already anticipated and introduced fastedly, in the
Portuguese legal planning, some of the principles inherent in the Solvency II regime.
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The new rules advocate for a holistic and integrated view of the risks so as to allow
identify, measure, monitor, manage and correctly communicate the different risks to
that insurance and reinsurance companies are or may come to be exposed. For the
Effect, the scheme is based on three distinct pillars: quantitative requirements (Pilar I),
qualitative requirements and supervisory process (Pilar II), and reporting to the authority of
supervision and public disclosure of information (Pilar III).
With regard to the quantitative requirements, the economic evaluation of the
elements of the asset and the liability, highlighting in the latter scope the evaluation of the
technical provisions by means of the calculation, separately, of the best estimate and margin of
risk or, if applicable, the respect assessment as a whole. Regarding the funds
own, which cover the basic own funds and supplementary own funds,
it determines the classification of the respects elements on three levels, depending on
ability to absorb losses, both in the event of liquidation, and in situation of
continuity of activity.
Two capital requirements are established-the solvency capital requirement and the
minimum capital requirement. The solvency capital requirement reflects a level of funds
eligible own intended to allow the absorption of significant losses, conferring a
reasonable assurance that the company's obligations will be fulfilled as it is
win. A standard forex is set for the calculation of this requirement, allowing, in
alternative, the use by the companies of partial or total internal models, by
prior authorization from the Insurance Supervision Authority and Pension Funds (ASF).
For its part, the minimum capital requirement guarantees a minimum level of own funds
of eligible basis below which one considers that the protection of the specific creditors of
insurance is clearly insufficient.
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On qualitative requirements, partially already laid down in the legal order
national, insurance and reinsurance companies are expected to implement systems of
effective governance, including risk management and internal control systems, in a way
to ensure a sound and prudent management of its activities. The fulfilment of requirements of
qualification and idoneity is chargeable to all persons who drive effectively the
company, to scrutinize or exercise other key functions in the same, understanding
in this latter category the risk management function, the verification function of the
compliance, the internal audit function and the actuarial function. As specificity
national, sign up for the maintenance of the requirement for the designation of a responsible actuary,
now with characteristics and functions that reserve you a certification role
independent. In addition, it is established that insurance and reinsurance companies
must carry out periodically, and whenever a significant change is found to your
risk profile, a self-assessment of risk and solvency that covers all risks
relevant, communicating the results of this evaluation to ASF. Still in the framework of this pillar,
it is premised that investments should be carried out under the " manager principle
prudent ".
In line with the remaining principles underlying the scheme, the process of supervision should
be structured according to a prospetive and risk-based approach, assuming,
therefore, a markedly preventative character. In this way, the supervision covers the
assessment of the quantitative requirements, qualitative requirements and procedures of
provision of information from insurance and reinsurance companies. It remains the regime of
verification of the accounting regime, as well as verification of the performance of the said
companies in their relationship with policyholders, insured persons and beneficiaries,
whose protection constitutes the paramount objective of supervision, reflection of the importance
assigned, in the national and international context, to the subjects relating to market conduct.
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Still in the framework of supervision, avulta, as a measure of last resort, the possibility of
imposition of an addition of the solvency capital requirement by ASF, should it consider
that the standard formula or the internal model does not adequately reflect the risk profile
of the company or that the system of governance significantly defaults on the legal regime.
The convergence of procedures, instruments and supervisory practices at European level
constitutes another central element of the scheme, strengthened through the participation of the
supervisory authorities in the activities of the European Insurance and Pensions Authority
Supplementary Reform (EIOPA), whose guidelines and recommendations should be taken
into consideration.
Finally, in the framework of the Pilar III, a set of reporting obligations are established before
the ASF, owing to the insurance and reinsurance companies to provide all the information
required for supervisory purposes. It is anticipated, yet, that the companies will disclose
publicly an annual report on their solvency and financial situation.
It is emphasized that the requirements set out in this Law shall be applied in a manner
proportional to the nature, size and complexity of the risks inherent in the activity of the
insurance and reinsurance companies.
Regarding the insurer groups and reinsurers, the respect for supervision leaves from
take on a character merely complementary to individual supervision, seeking
to establish a balance between the role of the supervisor of the group, which has powers
of coordination, and the performance of the remaining supervisory authorities concerned. Is
instituted enhanced cooperation between all authorities involved in the supervision of the
group, through the respect of participation in the college of supervisors.
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In the most, they generally retain the recovery measures provided for in the current legislation,
introducing, however, changes arising from the Solvency II regime, as well as
extending to the insurer sector some additional measures that have recently been
consected in the General Regime of Credit Institutions and Financial Societies.
It also remains the regime concerning the liquidation of direct insurance companies, the
which is regulated autonomously by the Decree-Law No. 90/2003 of April 30, which is to
revoke.
With regard to the sanctionatory regime, the autonomization of the penal regime is effective and
counterordinance applicable to the management activity of pension funds, which passes the
integrate the diploma that regulates such activity, preventing, on the other hand, the approval of a
Autonomous procedural regime common to the special crimes of the insurer and the funds sector
of pensions and the counterordinations processed by ASF. Additionally, they are introduced
updates arising from the new regime and the articulation and graduation of the infractions
qualified as simple, severe or very serious, promoting itself, still, an alignment
with the sanctionatory regime applicable to the remaining financial sector.
It is still carried out, following the overall assessment of the application, to the review of the
legal regime of the constitution and operation of pension funds and respect
managing entities, provided for in the Decree-Law No. 12/2006 of January 20, as amended by the
Decrees-Leis n. ºs 180/2007, May 9, 357-A/2007, October 31, 18/2013, 6
of February, and [Reg. DL 208/2015], transponding, too, the Solvency II Directive, in the
part in which it aments Directive No 2003 /41/CE, of the European Parliament and of the Council, of
June 3, 2003, concerning the activities and supervision of the institutions of realization of
professional pension plans. In addition to the changes arising from the said
transposition, clarifying some aspements of the regime, adapting to regulation to the
development of the sector and the needs identified in the framework of the respect
supervision. In particular, the improvement of the authorisation regime and
notification of acts relating to the constitution and extinction of pension funds and respect
publication, as well as of the rules reached for financing and settlement,
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densifying, still, the applicable rules on conflicts of interest.
They additionally introduce punctual changes regarding the provision of information to the
participants and beneficiaries, as well as to the constitution and operation of the committees of
follow up. As far as the payment phase is concerned, the possibility of
postponement of the refund or receipt of the benefit in the defined contribution plans
where the managing entity does not assume the risk of investment. It matters also to underline
the legal consecration of the possibility for pension funds to be affection to the
financing of an equivalent mechanism under the terms of Law No. 70/2013, 30 of
august.
They also introduce changes in the scope of the legal regime of the insurance contract,
approved by Decree-Law No. 72/2008 of April 16, in part arising directly
of the Directive Solvency II and the remaining corresponding to one-off adjustments to
confer increased feasibility and effectiveness at the level of the operationalisation of the scheme
consecrated, as well as preventing the use of the insurance contract for the purpose of
bleaching of advantages of illicit provenance and the financing of terrorism.
Finally, an adjustment of the scheme provided for in the Decree-Law No. 40/2014, is carried out,
of March 18, as amended by the Decree-Law No. 157/2014 of October 24 approving the
national measures necessary for the implementation of Regulation (EU) No 648/2012, of the
European Parliament and of the Council of July 4, 2012 on derivatives of the
over-the-counter market, central counterparties and transaction repositories, in the sense of
commit to ASF the skills provided for in the said diploma with respect to counterparties
not financial that they find themselves subject to their supervision.
The Solvent II Directive provides for a transitional arrangement for multiple subjects, with a view to
allow for a gradual adaptation to the new solvency regime, which justifies the increased
density in this domain.
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The Insurance Supervisory Authority and Pension Funds were heard, the Bank of
Portugal, the Securities Market Commission, the National Council of
Financial Supervisors, the National Data Protection Commission, the Association
Portuguese of Insurance and the Portuguese Association of Investment Funds,
Pensions and Heritage.
The hearing of the National Consumption Council was promoted.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposed law , with request for priority and urgency:
Article 1.
Object
1-A This Law transposes to the internal legal order the Directive No 2009 /138/CE, of the
European Parliament and of the Council of November 25, 2009 on access to
insurance and reinsurance activity and to your exercise, amended by the Directive
Paragraphs 2011 /89/UE, of the European Parliament and of the Council of November 16, 2011,
2012 /23/UE, of the European Parliament and of the Council of September 12, 2012,
2013 /23/UE, of the Council, of May 13, 2013, 2013 /58/UE, of Parliament
European and Council, of December 11, 2013 and 2014 /51/UE, of Parliament
European and the Council of April 16, 2014.
2-Within the scope of the transposition of the Directive referred to in the preceding paragraph, this Law:
a) Approves the new legal regime of the access and exercise of the insurer activity and
reinsurer (RJASR);
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b) Approves the procedural regime applicable to the special crimes of the insurer sector and
of the pension funds and the procedural regime applicable to the counterordinations whose
processing competes with the Insurance Supervisory Authority and Funds of
Pensions (ASF), save when it is specially provided for the application of another
procedural regime;
c) Amend the Decree-Law No. 12/2006 of January 20, amended by the Decrees-Laws
paragraphs 180/2007 of May 9, 357-A/2007, of October 31, 18/2013, 6 of
February, and [Reg. DL 208/2015], which regulates the constitution and operation of the
pension funds and pension fund manager entities;
d) Changes the legal regime of the insurance contract, approved by the Decree-Law
n. 72/2008 of April 16;
e) Amend the Decree-Law No. 40/2014 of March 18, amended by the Decree-Law
n. 157/2014, of October 24.
Article 2.
Approval of the legal regime of the access and exercise of the insurer activity and
reinsurer
The legal regime of the access and exercise of the insurer and reinsurer activity is approved
(RJASR), in Annex I to this Law and that it is an integral part of it.
Article 3.
Approval of the special procedural regime
The procedural regime applicable to the special crimes of the insurer sector and the
pension funds and the procedural regime applicable to the counterordinations whose
processing competes with ASF, save when it is especially planned for the application of
another procedural regime, in Annex II to this Law and which it is an integral part of.
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Article 4.
Amendment to Decree-Law No 12/2006 of January 20
Articles 2, 6 to 9, 12, 16, 19 to 28, 30 to 32, 38 to 36, 39 to 39, 39, 39, 39.
45, 46, 50, 53, 56, 60, 60, 78 to 81, 94 to 94, 94, 94 and 97 of the Decree-Law
n ° 12/2006 of January 20, as amended by Decrees-Laws 180/2007 of May 9,
357-A/2007, of October 31, 18/2013, of February 6, and [Reg. DL 208/2015], pass
to have the following essay:
" Article 2.
[...]
[...]:
a) [...];
b) [...];
c) "Pension fund", the autonomous heritage exclusively affection to the
realization of one or more pension plans and or benefit plans
of health, and may still simultaneously be affection to the
funding of an equivalent mechanism under the Act
n. 70/2013 of August 30;
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
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i) "lasting support", any instrument that allows the
participant, adherent or beneficiary store information that
are directed personally, in such a way that they can be
consults subsequently for a period appropriate to the purposes of
that are intended, and that allows for an exact reproduction of the
stored information;
j) "Key funding":
i) The functions of risk management, verification of the
compliance, internal and actuarial auditing;
ii) Other functions that confirm significant influence on the management of the
managing entity and that this or the ASF as such qualifies,
listening to the nature, size and complexity of risks
inherent in the respect of activity.
Article 6.
[...]
1-[...].
2-[...].
3-[...].
4-Pension plans may provide for, provided that they do so expressly:
a) The guarantee of the charges attached to the payment of pensions or the
provision of health benefits, particularly those arising from
collective bargaining, even though pensions or health benefits
are not financed by the pension fund;
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b) The extent of part or of the entirety of the pension plan to members
of the participant's household, understanding such a concept in the
terms of the legislation applicable to the savings plans-
reform/education.
Article 7.
[...]
1-[...].
2-[...].
3-Unless otherwise laid down in the pension plan, the plans
of defined benefit pensions in which the contributions effected by the
participants have mandatory character established by law or by
instrument of collective work regulation follow the regime applicable to the
non-contributory plans, not qualifying such participants as
taxpayers.
Article 8.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
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8-In the case of defined contribution pension plans in which the entity
gestures does not assume the risk of investment, the participant may postpone the
reimbursement or receipt of the benefit, in the forms foreseen in the present
article, for a maximum period of two years from the moment in which
if it checks the contingency that confers the right to the same, upon
written communication addressed to the managing entity, on paper support or
other lasting support.
9-In the case provided for in the preceding paragraph, the amount to which the participant has
right remains in the pension fund, retaining the conditions of the
pension plan that will be vigorous at the date on which the participant exercises the right
to the postponement of the refund or receipt of the benefit.
Article 9.
[...]
1-The pension plan confers acquired rights whenever it provides for the
possibility for participants to maintain the right to benefits in case
of cessation of the bond with the associate, when this occurs before the
verification of the contingencies that determine the receipt of the said
benefits.
2-[...].
3-In the case of defined benefit plans, the assumptions to be used for
determine the value to be transferred in the terms of the previous number are set
in regulatory standard of ASF.
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Article 11.
[...]
1-Without prejudice to the provisions of Article 81, the heritage of the funds of
pensions are uniquely affection to the compliance with pension plans,
to the payment of the management and deposit remuneration that involves, and to the
payment of the insurance premiums referred to in Article 16, no
responding by any other obligations, specifically those of
associates, participants, taxpayers, managing entities and depositories.
2-[...].
3-[...].
4-[...].
Article 12.
[...]
1-[...].
2-Not the funding of the fund through the method of apportionment is allowed
of cover capitals, save in excecional and residual situations,
grounded in the characteristics of responsibilities and accepted by ASF and
provided that it contributes to strengthening the protection of the participants and
beneficiaries.
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Article 16.
[...]
Pension funds or managing entities, when they act as gestures
of pension funds, can celebrate with insurance companies or from
reinsurance contracts for the guarantee of the coverage of the risks of death and
permanent disability eventually provided for in the pension plan, as well as
Immediate lifetime rental insurance contracts and, for the guarantee of pension of
orfandade, from immediate temporary renders.
Article 17.
[...]
1-Without prejudice to the rights of the participants and beneficiaries, the funds of
closed pensions involving considerably high amounts
may be managed by more than one managing entity, and the ASF may
establish, by regulatory standard, the conditions that prove to be
indispensable to the respect of operationalization.
2-[...].
Article 19.
[...]
1-Unless lawful provision to the contrary, the acts provided for in this diploma
subject to mandatory publication are published on the website of the ASF.
2-A The managing entity sends to ASF copy of the acts subject to publication
mandatory within 30 days of the date of the respective celebration or
formalization.
3-A The mandatory publication of the acts provided for in this diploma has effect
merely declarative.
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Article 20.
Authorization and notification
1-Compete to ASF the authorization for the constitution of pension funds
open and for the constitution of closed pension funds that fund
defined or mixed benefit pension plans, or contribution
defined that result from instrument of collective regulation of
work.
2-In the case of closed pension funds the authorisation is granted to
joint application of the managing entities and the founding associates,
accompanied by the constitutive contract project and, in the case of plans to
defined benefit or mixed, of the technical-actuarial plan, drawn up having in
attention the benefits to be financed and the participants and beneficiaries
covered.
3-[...].
4-[...].
5-[ Revoked ].
6-A constitution of closed pension funds that fund plans to
defined contribution pensions not resulting from instrument of
collective work regulation is notified to ASF by the entities
gestures within a maximum of 30 days from the conclusion of the contract
constitutive.
Article 21.
[...]
1-[...].
2-[...]:
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a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [ Repealed ];
g) Purpose of the fund and respect plan or pension plans a
fund, of which it must appear, if any, the scheme of the
rights acquired from the participants;
h) Conditions under which pensions are granted, if directly by the
fund or if through insurance contracts, without prejudice to the rules
provided for in Article 8;
i) Establishment of the guaranteed minimum income and duration of this
warranty, specifying who assumes the risk of investment;
j) [ Previous point (h) ];
l) Rules of solidarity, if there are, if there is more than one
associated;
m) [ Previous point (i) ];
n) [ Previous point (j) ];
o) Rights of participants and beneficiaries when the fund is
extinguish or when any of the associates extinguish or
abandon the fund, without prejudice to the provisions of Article 30;
p) [ Previous point (m) ];
q) [ Previous paragraph (n) ];
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r) [ Previous point (o) ];
s) Rules for the designation and representation of associates, participants and
beneficiaries in the monitoring committee and functions of the
commission;
t) Express mention that the pension plan results from instrument
of collective regulation of work, if applicable.
Article 22.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [ Repealed ];
h) [...];
i) [...];
j) [ Repealed ] ;
l) [ ... ];
m) [ ... ];
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n) [ ... ];
o) [ ... ];
p) [ Repealed ].
3-[...].
4-In cases where a closed pension fund is managed by more than
that a managing body, in accordance with Article 17, the provisions
constants of points c) , d) , e) , f) , l) and o) of paragraph 2 may appear in contract
to establish individually between the associate or associates and each
managing entity of the fund.
5-It is referred to the ASF an exemplar of the initial version of the management contract and,
subsequently, whenever changes occur to the policy of
investment, within 30 days of the celebration of the celebration or
formalization.
6-Without prejudice to the provisions of the preceding paragraph, whenever requested, it is
referred to ASF an exemplar of the updated version of the management contract.
Article 23.
[...]
1-[...].
2-[...].
3-Without prejudice to the provisions of the following number, the value of the units of
participation, the discriminated composition of the applications of the fund and the
number of outstanding participation units shall be disclosed
with minimum quarterly periodicity, up to the last day of the subsequent month
to the quarter to which the information complies on the website of the managing entity in the
Internet, owing such information to be available for a minimum term of
one year.
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4-[...].
5-[...].
6-The pension funds provided for in the Decree-Law No. 158/2002, 2 of
July, changed by the Decrees-Laws 125/2009, of May 22, 57/2012,
of November 9, and 44/2013, of July 3, pertaining to the savings plans-
reformat / education, are covered by the provisions of paragraph 3.
Article 24.
[...]
1-Depends on prior authorisation of ASF the changes to contracts
constitutives of closed pension funds mentioned in paragraph 1 of the
Article 20 which shall be concerned with the elements set out in the paragraphs e) , g) , h) , i) ,
l) , o), p) and r) of Article 21 (2), as well as the amendment of associates.
2-Depends on prior authorisation of ASF the amendments to the regulations of
management that focus on the elements set out in the sub- a) , h) , i) , j) , l) ,
m) , n) , p) and q) of paragraph 2 of the previous article.
3-The unforeseen changes in the previous figures, including the amendment of
managing entity, as well as changes to the constitutive contracts of
closed pension funds mentioned in Article 20 (6), no
they lack ASF authorisation, and they must be notified within the maximum period
of 30 days from the respective formalization.
4-The amendments of the constitutive contracts and the management regulations,
including change of managing entity, become subject to publication
mandatory.
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5-In the event of a change to the pension plan is guaranteed the value financed
of responsibilities with pensions in formation at the date of the amendment, save
express clearance from ASF, upon analysis of the circumstances of the case
in concrete and as long as the change is most beneficial to the participants
than the extinction of the pension fund or result of instrument of
collective labour regulations, and may not, in any case, be
change to reduce pensions that find themselves in payment or value
fully financed from responsibilities in plans with rights
acquired, including the acquired rights for which still
not if they have verified the conditions laid down in the plan, at the date of
amendment of the contract or the instrument of collective regulation of
work.
6-The changes that result in an increase in commissions, an amendment
substantial to the investment policy or the transfer of the fund management
to another managing entity are notified individually to the
taxpayers and adherents, in accordance with Article 61 (3), by sensing them
conferred the possibility of, within 15 days after the notification for the
effect, transfer, without charge, the value corresponding to their units
of participation resulting from own contributions to another fund of
pensions.
7-The provisions of paragraphs 2 a to 4 of Article 20 shall apply, with the necessary
adaptations, to the authorisations provided for in this article.
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Article 25.
[...]
1-A The collective adherence to an open pension fund takes effect through the
initial underwriting of units of participation, a contract being concluded
of adherence to the pension fund between each associate, or group of
associates, and the managing entity, which shall be subject to notification or
dissemination to participants.
2-[...].
3-Whenever a pension plan is financed through more than
a collective membership, must be named by the associates the managing entity
to whom the overall administrative and actuarial management functions of the
pension plan, and the ASF may establish, by regulatory standard, the
conditions that prove indispensable to the operationalizing respect.
4-Whenever a pension plan is financed through more than
a collective adherence to pension funds managed by the same entity
gestures, a single contract should be concluded between each associate or
group of associates and the managing entity.
5-Collective adhesion contracts that fund pension plans of
defined benefit or mist, or defined contribution resulting from
instrument of collective work regulation, become subject to
prior authorization of the ASF, applying, with the necessary adaptations, the
provisions of paragraphs 2 and 4 of Article 20.
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6-Collective adhesion contracts that fund pension plans of
defined contribution not resulting from instrument of regulation
working class are notified to ASF by the managing entities on the deadline
maximum of 30 days from the celebration of the celebration.
7-Of the contract of collective accession must appear, obligatorily, the
following elements:
a) Denomination of the pension fund;
b) Identification of the associate or associates;
c) Indication of the persons who may be participants, taxpayers and
beneficiaries of the fund;
d) Plan or pension plans to be financed, of which it must appear, if it is
case of the scheme for the rights acquired from the participants;
e) Rules of solidarity, should they exist, in case there is more than
an associate;
f) Indication, where appropriate, that the pension plan is funded
by more than a collective adherence, identifying itself the entity
managerial responsible for the overall administrative management functions and
actuarial;
g) Conditions under which pensions are granted, if directly by the
fund or if through insurance contracts, without prejudice to the provisions of
in Article 8;
h) Rights of participants when they cease to be covered by the
pension fund;
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i) Rights of participants and beneficiaries, when the respect
collective adherence to the fund if extinguished or any associated or
any of the associates extinguish themselves or abandon the fund, without
prejudice to the provisions of Article 30;
j) Causes of extinction of collective adherence or a share of this,
without prejudice to the provisions of Article 30;
k) Conditions under which the Contracting Parties reserve the right to
modify the contract of accession;
l) Conditions of transfer of the quota-part of an associate to
another pension fund, specifying possible penalties that
are applicable;
m) Quantification of the remuneration or commissions that will be charged;
n) Rules for the designation and representation of associates, participants and
beneficiaries in the monitoring committee and functions of the
commission;
o) Without prejudice to the provisions of Article 53, in the case of adhesions that
fund contributory plans, form of representation of the
participants and beneficiaries, to which it cannot be delegated to the
associated;
p) Express mention that the pension plan results from instrument
of collective regulation of work, if any;
q) Copy of the management regulation, in annex.
8-[ Previous Article No 6 ].
9-[ Previous n. 7].
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10-The changes in the collective accession contracts provided for in paragraph 5
depend on prior authorization from ASF when they focus on the
elements provided for in points b), c ) , d) , e) , g) , h) , i), j) and p) of paragraph 7 or
when they increase the remunerations or commissions.
11-The unforeseen changes in the previous number, as well as changes
to the collective accession contracts provided for in paragraph 6, do not lack
authorization of ASF, and must be notified within 30 days
from the date of the respective formalisation.
12-The provisions of paragraphs 5 and 6 of the preceding Article shall apply, with the necessary
adaptations, to the amendment of collective accession contracts, being, in addition
of this, all changes notified or disclosed to the participants.
Article 26.
[...]
1-[...].
2-[...].
3-[...].
4-Natural persons taxpayers shall give their written agreement to the
fund management regulation, presuming, in its absence, that the
same have not taken notice of that, assists them, without prejudice
of the provisions of Article 27, the right of resolution of individual membership, save
when the lack of the managing entity has not reasonably affected the
decision to hire from the taxpayer.
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5-The right of resolution provided for in the preceding paragraph shall be exercised within the period of
30 days from the provision of copy of the management regulation,
having the cessation effect retroactive and the adherent right to the return of the value
of the units of participation at the date of the return, except if this value is
lower than that of the contributions paid, in which case the adherent is entitled to
return of the value of the said contributions.
6-A change in individual membership contracts and the transfer of value
patrimonial corresponding to the units of participation effective by
written agreement, in the contractually anticipated terms, without prejudice to the
compliance with the duties of information on the part of the managing body.
7-[ Previous Article No 5 ].
Article 27.
[...]
1-The natural person taxpayer has a period of 30 days to be counted from the
date of individual membership to an open pension fund to waive the
effects of the contract, upon written communication addressed to the entity
gestures, on paper support or other lasting support.
2-[ Revoked ].
Article 28.
[...]
1-[...].
2-In cases where the managing entity takes the risk of investment, they are
deducted to the value of the contributions to be returned to the adherent the costs of
demonstrably supported disinvestment as well as the commission of
issuance, if it has been charged.
CHAIR OF THE COUNCIL OF MINISTERS
26
3-Without prejudice to the provisions of the preceding paragraph, in cases where entity
gestures assume the risk of investment:
a) If the value of the units of participation at the date of the return is
lower than the value of the contributions paid by the adherent, the entity
gestures is responsible for that difference, which is not passed on in the
value of the pension fund;
b) If the value of the units of participation at the date of the return is
higher than the value of the contributions paid by the adherent, the difference
revert in favour of the managing entity.
4-The exercise of the right of resignation does not give way to the payment of any
compensation.
Article 30.
[...]
1-[...].
2-A extinction of any of the managing entities or associates not
determines the extinction of the pension fund, or a share-share of this, if
if you proceed to the replacement, you should note in that case the
provisions of the constitutive contract, the management regulation or the contract
of collective adherence.
3-[...].
4-Saved in the cases provided for in paragraph 5 and in Article 31, the extinction of a
pension fund, or a fair share of this, or the cessation of a
collective adherence, or of a part-share, is effected, after authorization
preview of ASF, upon the conclusion of a written extinguishing contract.
CHAIR OF THE COUNCIL OF MINISTERS
27
5-In addition to the cases provided for in Article 78, the managing body conducts
through unilateral resolution, by statement of the ASF or by its initiative
preceded by prior authorization of the ASF, the extinction of the pension fund, or
of a quota-part of this or the cessation of a collective membership, or of a
its share, in the following cases:
a) Non-existence of participants and beneficiaries;
b) When, for any cause, if you exhaust your object;
c) Illegality of the contract.
6-The contract for the extinction of a pension fund, or of a quota
of this, or of the cessation of a collective membership, or of its share-share,
as well as unilateral resolution, they become subject to mandatory publication.
7-[ Revoked ].
8-[ Revoked ].
9-[ Revoked ].
10-[...].
Article 31.
[...]
1-A The managing body proceeds to the liquidation of the heritage of a fund of
pensions, or of quotes-parts of this, in the terms set out in the contract of
extinction or in the unilateral resolution provided for in the previous article.
2-[...]:
a) [...];
CHAIR OF THE COUNCIL OF MINISTERS
28
b) Amount of the individual account of each participant, in the case of funds
of pensions or collective adhesions that fund pension plans
contributors, which must be applied in accordance with the rules
established in the constitutive contract, in the contract of collective accession
or in the management regulation;
c) [...];
d) [...];
e) Amount corresponding to the fully financed value of the
liabilities with the rights acquired non-subject, in the terms
of the pension plan, any condition, or in respect of which
have already been verified, at the date of extinction, the conditions laid down
in the plan;
f) Amount corresponding to the fully financed value of the
responsibilities with the rights acquired in respect of which
not to have been verified, at the date of extinction, the conditions laid down
in the pension plan;
g) [ Repealed ];
h) Amounts corresponding to pensions in formation in plans without
rights acquired;
i) Amounts permitting the updating of pensions in payment,
provided that this is contractually stipulated.
3-The participants are notified individually by the managing body, in a
maximum period of 30 days from the formalization of the extinguishing contract
or of the unilateral resolution, extended upon decision of the ASF, on the
amounts to which they are entitled, for the purpose of transfer of the same to
another pension fund.
CHAIR OF THE COUNCIL OF MINISTERS
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4-In the case provided for in the preceding paragraph, if the choice of the pension fund
for which the amounts are to be transferred is not effected by the
participants within 45 days from the date of dispatch of the notification
provided for in the preceding paragraph, it is up to the managing entity to make such a choice,
informing the participants of the transfer carried out on behalf and on account of
of the same within a maximum period of 30 days from the end of the said
deadline.
5-A information provided for in paragraphs 3 and 4 is addressed personally to the
participants, on paper or in another lasting support.
6-Mediating agreement between the managing entity, the associate and the beneficiary, is
possible the payment in capital of the amount provided for in points e) , f) and g)
of paragraph 2, if the same is less than double the minimum monthly consideration
guaranteed for the generality of employees in force at the date of
liquidation.
7-In the event of financial insufficiency, the heritage of the fund or of the respect
quota-part responds preferentially by the responsibilities set out
and by the order of paragraphs (2), with recourse to prorogation proportional to the
value of responsibilities in that in which it is necessary.
8-[ Previous Article No 4 ].
9-Unless in duly justified cases, where the net balance
positive referred to in the previous number result from a drastic reduction of the
number of participants without acquired rights, that balance should be
used as a matter of priority for securing the pensions that were found in
training, with respect to the participants covered by that reduction.
CHAIR OF THE COUNCIL OF MINISTERS
30
10-[ Previous Article No 6 ].
11-The provisions of this Article shall not apply to the transfers provided for in the
article 32.
Article 32.
[...]
1-[...].
2-Without prejudice to the provisions of the provisions of f) a h) of paragraph 1 and paragraph 3 of Article 42,
to insurance companies intending to exercise the management activity of
pension funds applies, as to the respective conditions of access and
exercise, the provisions of the legal regime of the access and exercise of the activity
insurer and reinsurer, approved by Law n. [Reg. PL 142/2015].
3-[...].
4-[...].
Article 34.
[...]
1-A The managing body, in the exercise of its functions, acts in a manner
independent and in the exclusive interest of the beneficiaries, participants and
associates.
2-A The managing body carries out its functions with high due diligence and
professional competence, ensuring rationality and control of
costs in the management of pension funds.
3-A The managing entity acts quickly and effectively in the collaboration with the
too much governance structures of pension funds and the provision of the
information required under the law.
CHAIR OF THE COUNCIL OF MINISTERS
31
Article 35.
[...]
1-Without prejudice to the provisions of this Article, the managing body shall take
all appropriate measures to identify and to prevent or manage any
situations of conflict of interest with the pension funds per se managed.
2-In case the measures adopted by the managing body are not sufficient for
guarantee, with a reasonable degree of certainty, that the risks of the
interests of pension funds are impaired, the entity gestures
should inform and timely the beneficiaries, participants and
associates of the generic nature or the sources of these conflicts of interest
and of the measures adopted to mitigate these risks.
3-A The managing body shall give prevalence to the interests of the funds of
pensions in relation, be it to your own interests or companies with
which you find yourself in a domain or group relationship, be it interests
of the holders of their social bodies, and to ensure transparency of the
processes in which there is a conflict of interest.
4-Without prejudice to the provisions of paragraph 6, the managing body, as well as any
entity that is subcontracted under the provisions of Article 37 to
manage assets of a pension fund, and still the holders of their bodies
social and the companies with which those entities find themselves in
domain or group relation, cannot buy for themselves elements of the
heritage of pension funds by you managed, nor sell assets
own to these funds, either directly or by interposed person.
CHAIR OF THE COUNCIL OF MINISTERS
32
5-Without prejudice to the provisions of the following number, the associate, as well as the
holders of their social bodies and the companies with which they find themselves in
domain or group relation, cannot buy for themselves elements of the
heritage of the pension fund per se financed, nor sell assets
own to that fund, either directly or by interposed person
6-The acts referred to in paragraphs 4 and 5 shall be admitted when:
a) By recourse to regulated markets or to systems of
multilateral trading, the counterparty is unknown; or
b) Be demonstrated the existence of unequivocal advantage for the fund
of pensions, and shall for the effect be met the terms and the
conditions to be defined by regulatory standard of ASF.
7-[ Previous Article No 3 ].
8-[ Previous Article No 4 ].
Article 36.
[...]
1-[...]:
a) [...];
b) Grant loans, with the exception of mortgage loan to the
your workers.
2-[...]:
a) [ Previous point (b) ];
b) Grant loans, save if it comes to mortgage loan
or of loans to the participants, in the terms provided for in the
constitutive contract of the fund;
CHAIR OF THE COUNCIL OF MINISTERS
33
c) Borrowing loans, except when it is justified by unambiguous
need for liquidity from the pension fund;
d) Offer the assets of pension funds as a guarantee to third parties,
whatever the legal form to be assumed by that warranty, except
in the framework of reporting or loan-to-value contracts, or
others, with the aim of effective portfolio management, in the terms of
define by regulatory standard of ASF.
Article 38.
[...]
1-[...].
2-Are applicable to the holding companies of pension funds, with the
necessary adaptations, the provisions of the legal regime of access and
exercise of the insurer and reinsurer activity, passed by Law n. [PL
142/2015], relating to:
a) Control of holders of qualified shareholdings;
b) Registration of the people who effectively drive the company, scrutinise it
or are responsible for functions-chave;
c) Qualification and suitability requirements of the persons driving
effectively the company, scrutinize it, are responsible for functions-
key or exert functions-Chave;
d) Accumulation of posts and incompatibilities;
e) Registration of parassocial agreements;
f) Illegal use of denomination.
CHAIR OF THE COUNCIL OF MINISTERS
34
Article 39.
[...]
1-[...].
2-[...].
3-[...].
4-In the process of authorisation applies, with the necessary adaptations, the
in the provisions of Articles 55 and 56 of the legal regime of the access and exercise of the
insurer and reinsurer activity, approved by Law n. [PL 142/2015].
5-[ Revoked ].
Article 45.
Available solvency margin
1-A gestures society must have a solvency margin available
sufficient in relation to the whole set of its activities.
2-A available solvency margin corresponds to the heritage of the society
gestures, free from any burden and charges and deduced the elements
incorposals, including:
a) The social capital realized;
b) The reserves, legal and free, not representative of any
commitment;
c) The transient gains or losses, after deduction of dividends to
pay;
CHAIR OF THE COUNCIL OF MINISTERS
35
d) The preferred shares and subordinated loans, up to the limit
of 50% of the available solvency margin or of the margin of
solvency required, whicheting is less, admittance, up to the
limit of 25% of this margin, subordinated loans with term
fixed or preferred stock with determined duration, provided that:
i) In the event of insolvency or liquidation of the managing company,
there are binding agreements in the terms of which the
subordinated loans or the preferred shares occupies
a lower category in relation to the credits of all the
other creditors and are only reimbursed after the payment of
all other debts of the managing company;
ii) There is prior authorization of loan contracts
subordinated by ASF;
e) The titles of indefinite duration and other instruments, which
fills the conditions set forth below, which, added to the
subordinated loans referred to in the previous subparagraph, they cannot
represent more than 50% of the available solvency margin or the
required solvency margin, whicheting is less:
i) Do not be refundable on the initiative of the holder or without
prior authorization of the ASF;
ii) The issuance contract allows the society to gesture the
deferment of the payment of the interest on the loan;
iii) Preview the total subordination of the lender's claims on
the society gestures to the credits of all creditors not
subordinates;
CHAIR OF THE COUNCIL OF MINISTERS
36
iv) Conhave, in the documents governing the issuance of the securities,
the forecast of the debt capacity and unpaid interest for
absorbing the damage, allowing, at the same time, to
continuation of the activity of the managing company;
v) Only to be taken into consideration the amounts effectively
realized.
3-The subordinated loans provided for in the d) of the previous number
must further fill in the following conditions:
a) Only to be taken into consideration the amounts effectively
carried out;
b) Fixation of the initial term for fixed-term loans in, by the
less, five years, owing to the managing company to submit to the ASF,
for approval, no later than one year before the term of the deadline, a
plan indicating how the available solvency margin will be
maintained or reimposed at the level required in the term of the term, and may
that authority dispense with such a plan if the loan amount
necessary for the verification of the mentioned margin has been
progressively reduced for at least the five years
prior to the due date, and may also ASF
authorize, at the request of the managing company, the early repayment
of these funds if your available solvency margin does not descend
below the required level;
CHAIR OF THE COUNCIL OF MINISTERS
37
c) Refund, not being fixed due date of debt to the
loans, upon a prior notice of five years, unless
have ceased to be considered as elements of the margin of
solvency available or that there is prior agreement of ASF for the
early redemption, in which case the managing company informs this
authority, at least six months prior to the date of the refund,
indicating the available solvency margin and the solvency margin
required before and after the refund, may only be referred to
authority to authorize it if the available solvency margin does not
down below the required level;
d) Non-inclusion, in the loan contract, of clauses that
establish, in certain circumstances, the repayment of the debt
prior to the agreed date for their maturity, except in case of
liquidation of the managing company;
e) Amendment of the loan contract only with prior authorization
of the ASF.
4-Mediant prior authorization of ASF, the solvency margin available
may also include the following elements:
a) The most-valuable, not included in the revaluation reserve, which does not
have excecional character and that result from the evaluation of elements
of the asset;
b) Half of the share of social capital not yet realised, as long as the
part accomplished achieves at least 25% of the value of social capital, up to
at the limit of 50% of the available solvency margin or margin
of required solvency, whicheting is less.
CHAIR OF THE COUNCIL OF MINISTERS
38
5-For the purposes of the determination of the available solvency margin are
deducted from the elements referred to in paragraphs 2 a to 4 the amounts referring to:
a) Immobilized intangible;
b) Less-valuable, not included in the revaluation reserve, which do not have
excecional character and which results from the evaluation of elements of the asset;
c) Participations, in the accepted acettion in the legal regime of access and
exercise of the insurer and reinsurer activity, approved by the Law
n. [PL 142/2015], in the context of the title relating to the supervision of the
insurance and reinsurance companies that are part of a group,
held by the managing company:
i) In insurance companies and in insurance companies of a country
third, in the acetion provided for in the said legal regime;
ii) In reinsurance companies and in reinsurance companies of a
third country, in the acetion provided for in the said legal regime;
iii) In holding company holding companies in the insurance sector,
in the accepted acettion in the legal regime of the access and exercise of the
insurer and reinsurer activity, approved by Law n. [PL
142/2015];
iv) In credit institutions, financial institutions and societies
financial in the acetation, respectively, of the points p), s) and z) from the
article 2-A of the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 298/92,
of December 31;
CHAIR OF THE COUNCIL OF MINISTERS
39
v) In investment firms in the acetion of the ( l) of the article
2.-A of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92, of 31 of
December;
d) The instruments referred to in points d) and e) of paragraph 2 that the society
gestora detains relatively to the entities defined in the preceding paragraph
in which he holds a stake;
e) The elements referred to in points a), b), h), i) and j) of the Article 1 (1)
7. of the Notice of the Bank of Portugal No 6/2010, published in the Journal of the
Republic , 2 th grade, No. 253, 2. supplement, December 31-
2010, which the gestures society detains relatively to the entities
defined in the paragraph c) in which he holds a stake;
f) Predictable responsibilities that, in the terms of standard
regulate, the ASF considers that they are not, for that
effect, properly reflected in the accounts of the gestory society.
6-Whenever there is temporary detention of shares of another institution of
credit, investment company, financial society, institution
financial, insurance or reinsurance company, insurance company or
reinsurance of a third country or holding company of shareholdings in the
insurance sector for the purposes of a financial assistance operation
intended to sanctuate and recover this entity, the ASF may authorize
derogations from the provisions on deduction to which the
points c) a e) of the previous number.
7-The value-value criteria of the assets corresponding to the margin of
solvency available are fixed by ASF.
CHAIR OF THE COUNCIL OF MINISTERS
40
Article 46.
Solvency margin required
1-A required solvency margin is determined as a function of the
commitments made, in the following terms:
a) If the managing society assumes the risk of investment, the margin of
solvency required corresponds to 4% of the amount of the respects
pension funds;
b) If the managing company does not assume the risk of investment, the margin
of required solvency corresponds to:
i) 1% of the amount of respect for pension funds, provided that
the amount intended to cover the planned management expenses
in the management contract is set for a period higher than
five years;
ii) 25% of the total net of administrative expenses of the latter
exercise, provided that the amount intended to cover the expenses
of management provided for in the management contract is not fixed for
a period of more than five years.
2-[ Revoked ].
3-[ Revoked ].
Article 50.
[...]
1-[...].
2-Whenever requested, an exemplar of the said contract is remitted to ASF
in the previous number, as well as of its subsequent amendments.
CHAIR OF THE COUNCIL OF MINISTERS
41
Article 53.
[...]
1-[...].
2-[...].
3-Representatives of the participants and beneficiaries are designated by
direct election to be held with each other, organized by the managing entity or by the
associated, in the terms set out in the constitutive contract of the fund of
closed pensions or in the contract of collective adherence to the pension fund
open.
4-When the designation under the provisions of the preceding paragraph is not
possible by the absence of candidates, the representatives of the participants and
beneficiaries are assigned successively:
a) By the commission of workers;
b) Whenever the pension plan results from collective bargaining, by the
syndicate underwriter of the collective convention or, in the case of the
collective convention being subscribed by more than one syndicate, by the
different unions on the terms with each other agreed upon.
5-When, following the proceedings set out in paragraphs 3 and 4, they are not
designated the representatives of the participants and beneficiaries, the committee
of follow-up works with the representatives of the associate.
6-The representatives of the participants and beneficiaries in the committee of
follow-up represent both categories, unless it is planned to
existence of representatives by category in the terms set out in the contract
constitutive of the closed pension fund or in the contract of accession
collective to the open pension fund.
CHAIR OF THE COUNCIL OF MINISTERS
42
7-[ Previous proadmium of n. 6 ]:
a) [ Previous Article (a) of paragraph 6 ];
b) Pronounce on proposals to amend the rules of the plan of
pensions, transfer of management and other relevant changes
to the constitutive and management contracts of closed pension funds
or to the contract of collective adherence to open pension funds, well
how about the extinction of the pension fund or a share-share
of the same and, yet, about requests for return to the associate of
excesses of funding;
c) [ Previous Article (c) of paragraph 6 ];
d) [ Previous Article (d) of paragraph 6 ];
e) [ Previous Article (e) of paragraph 6 ].
8-[ Previous n. 7. ]
9-The opinions provided for in the paragraph b) of paragraph 7, with mention of the respects
votes against, integrate the documents to be sent to ASF by the entity
gestures in the context of the respects processes of authorization or of
notification.
10-[ Previous Article No 9 ] .
11-[ Revoked ].
12-In particular, the managing body provides annually to all members of the
follow-up committee the following elements:
a) Copy of the report and annual accounts of the pension fund;
b) Copy of the reports of the responsible actuary and the official reviewer of
accounts drawn up in the context of the duties;
CHAIR OF THE COUNCIL OF MINISTERS
43
c) Portfolio of pension fund investments at the end of the year.
13-The functioning of the monitoring commission is regulated, in all
which does not find itself fixed in this diploma or in standard
regulatory of ASF, by the constitutive contract of the pension fund
closed or by the contract of collective adherence to the open pension fund.
14-[ Previous Article No 12 ].
15-A ASF, in the regulatory standard referred to in paragraph 13, may provide for the
situations in which, upon agreement between the associate or associates and the
representatives of the participants and beneficiaries, may be constituted
only follow-up committee for various pension plans and or
pension funds.
Article 55.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...]:
a) Constitute violation of the legal or regulatory standards governing the
activity of pension funds or related serious wrongdoing
with the administration or with the accounting organization of the fund of
pensions;
b) [...].
CHAIR OF THE COUNCIL OF MINISTERS
44
7-[...].
8-[...].
Article 56.
[...]
1-[...].
2-In the event of co-management, the official reviewer of accounts is appointed by the entity
gestures to those who are incumbent on the overall administrative management functions,
notably the function of accounting consolidation, and of actuarial management
of the pension plan.
3-[ Previous Article No 2 ].
4-[ Previous proemio of the n. 3 ]:
a) Constitute violation of the legal or regulatory standards governing the
activity of pension funds or related serious wrongdoing
with the administration or with the accounting organization of the fund of
pensions;
b) Materially affect the financial situation of the pension fund or the
financing of the pension plan;
c) [ Previous Article (b) of paragraph 3 ].
5-[ Previous Article No 4 ].
Article 60.
[...]
1-[...].
2-[...].
CHAIR OF THE COUNCIL OF MINISTERS
45
3-[...].
4-In the case provided for in the preceding paragraph, it is incumbent on the managing body to control
the effective fulfillment of the information obligations, owing, in the event of
default on the part of the associate or the commission of
follow-up, ensure the timely provision of information in
replacement of such entities.
5-A information provided for in this article is addressed in person to the
participant, on paper or in another lasting support.
6-To the information elements set out in paragraphs 1 and 2 may be increased, in case
prove to be necessary for a better and effective understanding of the
characteristics of pension funds or pension plans, elements
specific information to be fixed by regulatory standard of ASF.
Article 61.
[...]
1-[...].
2-The participants referred to in the preceding paragraph are still entitled to receive, the
application, within a maximum period of 30 days, information on the amount to which
eventually be entitled in the event of a cessation of the labour bond,
modalities of transfer of the same, and, in the contribution plans
defined, on the anticipated amount of their retirement pensions, well
as a copy of the report and annual accounts relating to the pension fund.
3-[...].
CHAIR OF THE COUNCIL OF MINISTERS
46
4-A The managing body sends annually to participants of pension funds
closed and from collective adhesions to open pension funds information
about:
a) The current situation of the rights in training of the participants,
considering the type of pension plan, and specifying
in particular, where applicable:
i) If the current value of liability with such rights if
finds fully funded;
ii) That the final value of the pension depends on the retribution earned on the
date of the verification of the contingency that confers the right to your
receipt, as well as of the service time on that date;
iii) In the defined or mixed contribution plans, the value of the
individual net accounts of possible charges, or the value
gross of these accounts presenting in a clear manner the possible
charges that focus on the same;
b) [...];
c) [...];
d) [...].
5-For the purposes of the information to be provided under the terms of the a) of the number
previous, the managing entity takes into account the following factors, as
applicable:
a) Old-age retirement pension is calculated by considering the salary
or salaries and the time of service reported December 31 of the year
previous;
b) Any rights acquired under the pension plan.
CHAIR OF THE COUNCIL OF MINISTERS
47
6-To the elements of information provided for in the preceding paragraphs may
add, should it prove necessary to a better and effective understanding
of the characteristics of pension funds or pension plans,
specific elements of information, to be fixed, as well as the respect
periodicity, by regulatory standard of ASF.
7-In the contributory plans, in respect of own contributions, and in the
plans with acquired rights, the participants ceasing the bond with
the associate is notified individually, within 30 days of counting
of the knowledge of cessation by the managing entity, about the value to which they have
right, for the purposes of the possible exercise of portability, in the legal terms
and contractually anticipated.
8-A information provided for in this article is addressed personally to the
participants, on paper or in another lasting support.
9-[ Previous Article No 5 ].
10-In the case provided for in the preceding paragraph, it is incumbent on the managing body
control the effective fulfillment of information obligations, owing,
in the event of default by the associate or the commission of
follow-up, ensure the timely provision of information in
replacement of such entities.
Article 62.
[...]
1-[...].
2-In cases where the pension is guaranteed through the conclusion of contract of
insurance, the managing body provides the beneficiaries with information on the
contractual conditions and fares of at least three insurers, except if
the beneficiaries proceed, on their initiative, to the choice of the insurer.
CHAIR OF THE COUNCIL OF MINISTERS
48
3-A The managing body shall not be able to earn any remuneration for the title of the
provision of information referred to in the preceding paragraph.
4-[ Previous Article No 2 ].
5-A The managing body provides the beneficiaries referred to in the preceding paragraph, the
your application, within the maximum of 30 days, the investment policy of the
fund as well as the report and annual accounts referring to the fund of
pensions.
6-A information provided for in this article is addressed personally to the
beneficiaries, on paper or in another lasting support.
7-To the information duties provided for in paragraphs 1 a to 3 may be added, if
disclose necessary to the informed knowledge of the rights of the
beneficiaries, specific information duties, to be fixed by norm
regulatory of ASF.
8-Mediating prior agreement between the associate and the managing entity, may
stipulate, in the management contract of the pension fund or in the contract of
collective adherence, which the information obligations provided for in the present
article to be complied with by the associate or by the commission of
follow up, without prejudice to the maintenance of the responsibility of the
entity gestures for its compliance.
9-In the case provided for in the preceding paragraph, it is incumbent on the managing body to control
the effective fulfillment of the information obligations, owing, in the event of
default on the part of the associate or the commission of
follow-up, ensure the timely provision of information in
replacement of such entities.
CHAIR OF THE COUNCIL OF MINISTERS
49
Article 63.
[...]
1-[...].
2-[...].
3-Without prejudice to the provisions of Article 24 (6), the managing body informs
annually the participants of individual adhesions to pension funds
open about:
a) [...];
b) [...];
c) [...];
d) [...].
4-[...].
Article 64.
[...]
1-[...].
2-The holding companies of pension funds must submit annually
to ASF, in relation to the set of all the activity exercised in the year
immediately preceding, the management report, the balance sheet, the demonstration of
results and the remaining reporting documents, certified by
an official reviewer of accounts, applying, secondarily, with the due
adaptations, the provisions of Article 85 of the legal regime of access and
exercise of the insurer and reinsurer activity, passed by Law n.
[PL 142/2015].
3-[...].
CHAIR OF THE COUNCIL OF MINISTERS
50
4-[...].
5-[...].
Article 78.
Insufficiency or absence of funding from the pension plan
1-In the defined benefit plans or mixed, if the associate does not proceed to
payment of the necessary contributions to the fulfilment of the amount
minimum required by the normative in force, it is up to the managing entity, without
injury to the duty to report the situation to the monitoring commission
and from the established in the following numbers, take the initiative to propose to the
associated with regularization of the situation.
2-[...].
3-[...].
4-Within 15 days of the date of verification of a situation of
insufficiency of financing of the current value of pensions in payment, the
managing entity warns the associate to make the contributions that if
show required within 180 days following that communication, and
gives knowledge of the same to the ASF and the accompanying commission,
owing to the extinction of the closed pension fund or the accession
collective, if the contributions are not effectuated.
5-[...].
6-The provisions of the preceding paragraphs shall apply, with due adaptations,
to the absence of funding from the contribution pension plans
defined.
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Article 79.
Payment of new pensions and transfer of corresponding values to
rights acquired
1-A The managing body can only initiate the payment of new pensions in the
terms of the pension plan if the amount of the pension fund or the
respects quota-part exceeds or equates the current value of pensions in
payment and the new pensions due, calculated in accordance with the
assumptions set by the normative in force for the determination of the
minimum solvency amount, except if it already exists, and if it is being
fulfilled, a funding plan approved by the ASF.
2-A The managing body can only proceed to the transfer to another fund of
pensions of the values corresponding to acquired rights, in the terms of the
n Article 9 (4), whether the amount of the pension fund, or of the respect
share-share, exceed or match the current value of pensions in payment, das
new pensions due and the rights acquired, calculated according to
the assumptions set by the normative in force, resonating from the
disposed of in this paragraph the contributions of its own.
Article 80.
[...]
Without prejudice to the provisions of Articles 78 and 79, when a situation occurs,
current or predictable, of insufficient funding of the value of the
pension fund responsibilities, ASF may, if necessary or
appropriate to the safeguarding of the interests of the participants or beneficiaries, and
isolated or cumulatively with other measures, restrict or prohibit free
use of the assets of the fund, being applicable, with due adaptations, the
provided for in Article 310 of the legal regime of the access and exercise of the activity
insurer and reinsurer, approved by Law n. [PL 142/2015].
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Article 81.
[...]
1-If it is found that, for five consecutive years and for structural reasons,
the value of the quota-part of the pension fund, corresponding to the
funding for a defined benefit pension plan or, in the part
applicable to the defined benefit plans, to the financing of a plan of
mixed pensions, annually exceeds a percentage of the current value of the
total liabilities, the amount of excess can be returned to the
associated, provided that a minimum percentage of
funding, and ASF may establish, by regulatory standard, the
conditions that prove necessary to the operationalization of the said
return.
2-[...].
3-In the decision, the ASF meets the concrete circumstances that in each case
have originated the excess of funding, taking into consideration the interest
of the participants and beneficiaries, and does not authorize the return when it has
result, directly or indirectly, of a change of the assumptions or
methods of calculating the current value of responsibilities, of a change
of the pension plan or a drastic reduction in the number of
participants with no acquired rights verified in the last five years
consecutive.
4-In the event that no more participants are admitted to the pension plan, the
ASF does not authorize the devolution of excess funding to the associate
when this result is a drastic reduction in the number of participants,
regardless of the period that has elapsed since its verification.
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5-For the purpose of the provisions of the preceding paragraphs, they do not consider themselves
duly justified the cases in which the drastic reduction of the number of
participants if it operated upon termination agreements of the contract of
work, unless of the same results the express renunciation of rights
consignments in the pension plan.
Article 93.
[...]
1-[...].
2-The powers referred to in the preceding paragraph cover the activities and
entities that have been subcontractors.
3-[ Previous Article No 2 ].
4-[ Previous Article No 3 ].
5-[ Previous Article No 4 ].
6-In the course of inspections, the entities subject to the supervision of ASF are
obliged to provide you with unrestricted access to your systems and archives,
including informatics, where information relating to
beneficiaries, participants, adherents, associates, pension funds or
operations, information of an accountancy, prudential or other
relevant information within the framework of ASF's competences, as well as the
allow both copies and trassides of that information to be extracted.
7-A ASF may require the achievement of special audits by entity
independent, by itself assigned, at the expense of the audited entity.
8-Without prejudice to the criminal sanctions that in the case coubern, the ASF, always
who has founded suspicions of the practice of acts or management operations of
pension funds, without which for this there is the necessary authorisation, may:
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a ) To promote the publicising, by the appropriate means, of the identification of
natural or collective persons who are not legally entitled to
exercise activities supervised by ASF;
b) Apply for dissolution and liquidation of society or other ente
collective that, without being enabled, practices acts or operations of
management of pension funds, without for this to exist necessary
authorization.
9-[ Previous Article No 5 ].
Article 94.
Recovery measures of the managing entities
1-[...]:
a) To restrict or prohibit the free use of the assets of the managing company,
being applicable, with due adaptations, the one provided for in Article 310.
of the legal regime of the access and exercise of the insurer activity and
reinsurer, approved by Law n. [PL 142/2015];
b) Designating interim managers of the managing society on the terms, with
the due adaptations, from that provided for in Article 311 of the legal regime
of the access and exercise of the insurer and reinsurer activity,
approved by Law n. [PL 142/2015].
2-[...].
3-[...].
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Article 97.
[...]
Pension funds and respected governing entities are regulated, in the aspelets
not provided for in this diploma, by the standards applicable to the activity
insurer, by the general social security regime and by labour law. "
Article 5.
Addition to the Decree-Law No. 12/2006, of January 20
They are deferred to Decree-Law No. 12/2006 of January 20, amended by the Decrees-Laws
n. ºs 180/2007, May 9, 357-A/2007, October 31, 18/2013, February 6, and
[Reg. DL 208/2015], the articles 5-A, 5.-B, 29.-A, 31.-A, 77.-A and 96.
96.-Q, with the following essay:
" Article 5.
Autonomy and regime of pension funds that fund a
equivalent mechanism
1-An equivalent mechanism under the terms of Law No. 70/2013, of August 30
can be financed through closed pension funds and adhesions
collectives to open pension funds.
2-To the pension fund that funds an equivalent mechanism is applicable,
with due adaptations, the fixed in the present diploma for the funds of
closed pensions and for collective adhesions to open pension funds,
as well as for defined contribution pension plans, without prejudice
of the schedule in the following paragraphs and in Law No. 70/2013 of August 30.
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3-The responsibilities inherent in the equivalent mechanism are calculated and
financed autonomously in relation to the responsibilities of the plans
of pensions and health benefits plans.
4-If the heritage of a pension fund that finances simultaneously
equivalent mechanism and pension plans and or plans for benefits of
health is managed in a joint manner, there must be a clear identification of the
share of the heritage affection for each purpose.
5-In the event of the extinction of the share of the pension fund affects the
financing of equivalent mechanism, and in the impossibility of
transfer to another pension fund or collective membership, the entity
gestora ensures the management of the pension plan until the settlement of the respect
heritage.
6-A ASF may, where necessary to the operationalization and effectiveness of the
operation of pension funds as an instrument of financing
of an equivalent mechanism, detailing in regulatory standard, the regime
applicable.
Article 5-B
Deadlines
Unless special provision is made, the deadlines set out in this diploma and
respects regulations are counted in the terms of the Code of the
Administrative Procedure.
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Article 29-The
Transfer to savings funds
The transfer of values of pension funds, which are not to be
savings funds, for savings funds provided for in the applicable law
to the savings plans-reform/education, regardless of the form that
review.
Article 31-The
Extinction arising from transfer
1-A The transfer of a closed pension fund provided for in paragraph 1 of the
article 20, or of a share of this, for another pension fund
closed or collective adherence to an open pension fund is formalized
through an extinction contract to be concluded between the associate and the
managing entity, with subjection to prior authorisation from ASF.
2-The provisions of the preceding paragraph shall apply to the transfer of adhesions
collectives to open pension funds provided for in Article 25 (5), or
of one's own share, for a closed pension fund or for another
collective adherence.
3-A transfer of a closed pension fund that funds plans to
defined contribution pensions not resulting from instrument of
collective regulation of work, or a share of this, to
another closed pension fund or for collective adherence to the fund of
open pensions is formalized through an extinction contract to
celebrate between the associate and the managing company, with this being notified to
ASF within a maximum of 30 days from the celebration of the celebration.
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4-The provisions of the preceding paragraph shall apply to transfers of adhesions
collectives to open pension funds that fund pension plans of
defined contribution not resulting from instrument of regulation
work collective for a closed pension fund or for another
collective adherence.
5-The extinction contracts provided for in this article shall be subject to
mandatory publication.
Article 62-The
Elements of information for participants
For the purpose of the fulfilment of the information obligations provided for in the
previous articles, and without prejudice to the provisions of Article 60 (3), para. 10
of Article 61 and in paragraph 6 of the preceding Article, the Associate communicates to the entity
gestures the name, the abode and or the electrogenic address of the participants, well
how, annually, any subsequent changes.
Article 77-The
Additional funding requirement
1-A ASF may, by regulatory standard, require additional requirements from
financing of the responsibilities relating to the beneficiaries as well as
to participants with close age, equal to or higher than the retirement age
provided for in the pension plan.
2-In the event of a change or conversion of the pension plan or settlement of the
pension fund, without prejudice to the provisions of Article 31 (2), the
values that result from the additional funding requirements must be
included in the calculation of the amount to be affected to the participants referred to the
previous number to which acquired rights are recognized.
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Article 96-The
Unlawful practice of acts or operations of pension fund management
1-Who to practice acts or operations of pension fund management, on account
own or alheia, without that for this there is the necessary permission, it is punished
with penalty of imprisonment up to five years or with penalty of fine.
2-Collective persons or equipared entities are responsible, in the terms
general, for the crime provided for in the preceding paragraph.
Article 96-B
Disobedience
1-Who refuses to abide by the legitimate orders or warrants of ASF,
emanated within the framework of their duties, or create, by any form,
obstacles to its execution incur the intended penalty for the crime of
qualified disobedience, if the ASF has made the warning of this
comination.
2-In the same penalty incurs who does not comply, hinder or defraud the
implementation of the ancillary sanctions or precautionary measures implemented in
process of counterordinance.
Article 96-C
Accessory feathers
To the crimes provided for in the preceding Articles, the following may be applied
incidental penalties, without prejudice to the regime of the legal consequences of the fact
provided for in the articles 40 and following of the Criminal Code:
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a) Interdiction, by term of not more than five years, of the exercise by the
agent of the profession or pension fund management activity, by
own or alhetry, including the inhibition of the exercise of functions
of administration, direction, managerial or supervisory or of representation;
b) Dissolution and judicial settlement of society or of another person
collective;
c) Publication of sentencing sentencing at the expense of the accused in half
appropriate to the fulfilment of the general prevention purposes of the
legal system and the protection of the pension funds market.
Article 96-D
Application in space
1-The provisions of this Chapter shall apply, unless treaty or convention
to the contrary, regardless of the nationality or the seat of the agent,
to the facts practiced:
a) And
m Portuguese territory;
b) And
m foreign territory, provided that they are subject to the supervision of ASF;
c) The
board of ships or Portuguese aircraft.
2-A The applicability of the provisions of this Chapter to the facts practiced
on foreign territory must comply, with the necessary adaptations, the
principles set out in paragraphs 1 and 2 of Article 6 of the Criminal Code.
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Article 96-And
Responsibility
1-By the practice of the counterordinations referred to in this Chapter
may be held liable, jointly or not, natural persons and
collective people, albeit irregularly constituted, as well as
associations without legal personality.
2-Is
punishable as an author of the counterordinations to which the present relates
chapter all the one that, by action or omission, causally contribute to
your verification.
Article 96-F
Responsibility of collective persons
1-A
s collective persons and the equated entities referred to in the previous article
are responsible for the counterordinations committed by the members of the
your social organs, by the top directors and too many people who drive
effectively the company, scrutinize it, or are responsible for a function-
key, by the remaining workers or by whom the represent them, acting in
your name and in your interest and within the scope of the powers and functions in which there are
been invested.
2-A
liability of the collective person is excluded when the agent atue against
orders or express instructions from that.
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3-A
invalidity and the legal ineffectiveness of the acts in which the relationship between the
individual agent and the collective person do not preclude the liability of
none of them.
Article 96-G
Liability of natural persons
1-A
responsibility of the collective person and equated entities does not exclude the
individual liability of the natural persons indicated in paragraph 1 of the
previous article.
2-N
an obstacle to the responsibility of the individual agents who represent outrain
the circumstance of ilicitude or the degree of ilicitude depend on certain
qualities or special relations of the agent and these only occur in the
person of the represented, or to require the agent to practice the act in his / her
self-interest, having the representative acted in the interest of the
represented.
3-Natural persons who are members of administration bodies, of
direction or supervision of the collective person incur the targeted sanction
for the author, especially attenuated, when, knowing or owing
know the practice of counterordinance, do not adopt the appropriate measures
to put an end to him, unless more serious sanction kayaks him by force of
another legal provision.
Article 96-H
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Graduation of the penalty
1-A The measure of the fine and the applicable ancillary sanctions are determined in
function of the seriousness of the infraction, of the fault, of the economic situation of the agent,
of their previous conduct and the requirements for prevention.
2-A The severity of the infraction committed by the collective people is assessed,
specifically, by the following circumstances:
a) Danger created or damage caused to the conditions of acting in the
pension fund market, the national economy or, in particular,
to associates, participants or beneficiaries of the products
marketed;
b) Occasional or repeated character of the infraction;
c) Acts of concealment, to the extent that it hinders discovery
of the infringement or the suitability and effectiveness of the applicable sanctions;
d) Acts of the collective person intended for, by his or her initiative, to repair
the damage or obviate the dangers caused by the infraction.
3-For individual agents, in addition to the circumstances corresponding to the
listed in the preceding paragraph, it is still met, in particular, at
following:
a) Level of responsibility and sphere of action in the
collective person concerned that entails a special duty of no
commit the infraction;
b) Benefit, or intention to obtain it, of the own,
of the spouse, of kin or of afim to the third degree, direct or by
intermediate of companies in which, directly or indirectly, detain
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a participation.
4-A mitigation arising from the repair of the damage or the reduction of danger,
when carried out by the collective person, communicates to all agents
individual, even though they have not personally contributed to them.
5-A The fine shall, where possible, exceed the economic benefit that the
agent or the person who was your purpose benefit have withdrawn from the
practice of the infraction.
6-If double the economic benefit obtained by the offender is determinable and
exceed the maximum limit of the applicable fine, this is high to that value,
without prejudice to the provisions of the paragraph a) of Article 96 (1)-R.
Article 96-I
Reoffending
1-Is
punished as recidivist who to practice contract counterordinance in the
gift diploma after you have been convicted of a definite decision or
transitioned on trial by the previous practice of counterordinance in it
also provided for, provided that no five years have been completed on
that your practice.
2-And
m case of recidivism, the minimum and maximum limits of the applicable fine are
high by a third.
Article 96-J
Fulfillment of the omitted duty
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1-S
empre that the counterordinance results from omission of a duty, the application
of the sanctions and the payment of the fine do not waive the offender of his / her
compliance, if this is still possible.
2-N
the case provided for in the preceding paragraph, the ASF or the court may order the
offender who fulfils the omitted duty, within the time limit set.
3-S
and the offender does not adopt within the prescribed time the legally required arrangements,
incurs the targeted sanction for the very serious counterordinations.
Article 96-K
Infractions competition
1-S
target the provisions of the following number, if the same shall constitute
simultaneously crime and counterordinance, are the defendants
held responsible for both infractions, instituting themselves, to the effect,
separate processes, to be decided by the respective competent authorities.
2-S
to the detriment of the liability for both infractions, there is place only to the
criminal procedure, when the crime and the counterordinance have been
practiced by the same accused, through a same fact, violating
identical legal interests, and the criminal judge may apply the sanctions,
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including the ancillary ones, provided for the counterordinance in question.
3-N
the cases provided for in the preceding paragraph shall ASF be notified of the decision
that put an end to the process.
Article 96-L
Prescription
1-The
procedure for the counterordinations provided for in this diploma
prescribe in five years counted in the terms provided for in Article 119 of the
Penal code.
2-However, in cases where there has been concealment of the facts that are the object
of the counterordinance process, the limitation period only runs from the
knowledge, on the part of ASF, of these facts.
3-Without prejudice to other causes of suspension or interruption of the
prescription, the prescription of the procedure by counterordinate suspending itself
from the notification of the dispatch that proceeds to the preliminary examination of the
resource of the decision applying sanction until the notification of the final decision of the
feature.
4-When it deals with simple counterordinance, the suspension provided for in the
previous number cannot exceed 30 months.
5-When dealing with serious or very serious counterorders, the suspension
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provided for in paragraph 3 may not exceed the five years.
6-The time limit referred to in paragraphs 4 and 5 shall be raised to double if there has been
resource for the Constitutional Court.
7-The term of limitation of fines and ancillary sanctions is five years to
count of the day on which the administrative decision becomes final or of the day
in which the court decision transits on trial.
Article 96-M
Lawsuit and judicial challenge
1-The
processing of the counterordinations and the application of the fines and sanctions
ancillations provided for in this chapter compete for ASF, being applicable
the special arrangements for the counterordinance procedure set out in Annex II
approved by Law n. [PL 142/2015].
2-À
judicial challenge of the decisions of ASF relatively to the
counterordinations foreseen and punishable under this chapter shall apply
the special scheme provided for in Annex II approved by Law No [PL 142/2015].
Article 96-N
Simple counterorders
They are punishable with fine of € 2500 a € 100000 or € 7500 a € 500000,
depending on whether it is applied to the natural or collective person, the following
counterorders:
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a) The failure to comply with the requirement of application to the ASF of the registration of
parassocial agreements in the legal terms;
b) The illegal use of firm or denomination by any entity not
authorized for the management activity of pension funds or the use
undue denomination to induce in error as to the
scope of the activity you may exercise, in the legal terms;
c) Non-submission or communication to ASF of statutory changes
on the terms provided for in this diploma;
d) The violation of the duty of preservation of documents by the deadlines
legal or regulation-required;
e) The failure to comply with the duty to send to ASF, on the terms and deadlines
fixed, the documentation determined by law or by
regulation, which is not considered serious counterordinance or
very serious, as well as of the generically requested by ASF;
f) Failure to comply with the duty of provision to the ASF, in the time limits set,
of information determined by law or by regulation, as well as
of the most generically requested by ASF;
g) Failure to comply with the duty of public disclosure, in the time limits set,
of information determined by law or by regulation;
h) The failure to comply with applicable accounting rules, determined by
law or by regulation;
i) Failure to comply or poor fulfilment of requirement or
duty on the structures or mechanisms of governance provided for
in this diploma and too much applicable legislation or respect
regulation, which is not considered serious counterordinance or
very serious;
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j) Failure to comply or poor fulfilment of requirement or duty
fixed in the scope of market conduct by this diploma and
too much applicable legislation or respect regulation, other than
considered serious or very serious counterordinance;
k) The violation of the duty of the managing entity of pension funds of
proportional distribution of costs in the face of the assets acquired for
each pension fund when they are issued purchase orders of
joint assets for various funds;
l) The default of the legal duty of unilateral resolution of contracts
constitutive or collective adhesions by the fund managing entity
of pensions;
m) The lack of communication to ASF, within 30 days, by the entity
manager of pension funds, of facts that should determine the
amendment of the constitutive contracts, management regulations or
collective adhesions;
n) The lack of annual disclosure, by the provider of the participants and
beneficiaries, of the recommendations issued, as well as the lack of
mention of the adoption of its recommendations by the recipients;
o) The violation of the remaining imperative precepts of this diploma or of
regulation issued in their compliance and for their execution,
as well as legislation from the European Union issued in this framework, which
is not considered to be serious or very serious counterordinance.
Article 96-The
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Serious counterorders
They are punishable with fine of € 7500 a € 300000 or € 15000 a € 1500000,
depending on whether it is applied to the natural or collective person, the following
counterorders:
a) The management of occupational pension plans constituted under the
legislation from another member state by managing entities of
pension funds constituted under Portuguese law,
without prior authorization from ASF;
b) The lack of notification to ASF of the conclusion of constitutive contracts
and of collective accession contracts, when legally due;
c) The lack of notification to ASF of amendment to the constitutive contracts,
management regulations and collective adhesions when legally
due;
d) The subcontracting by the managing entity of pension funds of
functions or activities in disregard of the conditions fixed in the
present diploma and respect regulation;
e) The default by the managing entity of pension funds of the
the capitalisation scheme provided for in Article 12;
f) The default of the duty of initial registration and changes
subsequent, of the members of the governing bodies and of
oversight, from the official reviewer of accounts to whom it competes to issue the
legal cerification of accounts, of the top directors and the rest
people who effectively drive the managing entity or are
responsible for another key function, under the terms of the point b) of the n.
2 of Article 38;
g) The omission of communication to ASF that a registered person
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has ceased to fulfil the legally foreseen requirements;
h) The failure to comply with imperative rules regarding identification,
assessment and risk management by the fund managing entities of
pensions provided for in this diploma and respect for regulation;
i) The failure to comply with imperative rules relating to internal control
of the managing entities of pension funds provided for in the present
diploma and respect regulation;
j) The failure to have a duty to have key functions as per the
provisions of the applicable regulations;
k) The failure to meet the duty of appointment of a responsible actuary
or of the duty to guarantee the necessary conditions to which the same
carry out their duties, in accordance with the required in the present
diploma and respect regulation;
l) The failure to meet the duty of appointment of auditor for each fund
of pensions or the duty to guarantee the necessary conditions to which
the same shall carry out its duties, in accordance with the required
in the present diploma, respect regulation and too much legislation
applicable;
m) The non-acatation of the ASF determinations in respect of
advertising;
n) The failure to comply with the duty of constitution of the commission of
follow-up of the pension plan and guarantee of conditions
necessary to have the same exercise in compliance
with the provisions of this diploma and respect for regulation;
o) The failure to fulfil the duty of designation of the provider of the
participants and beneficiaries in accordance with the provisions of the
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present diploma and respect regulation;
p) Failure to comply or poor compliance with duty to
information or clarification to the general public or to
with the associates, participants or beneficiaries;
q) The failure to comply with the provisions relating to the realization or
representation of the social capital of the fund holding companies of
pensions;
r) The acquisition, direct or indirect, or increase in qualified participation
in society manager of pension funds without communication
prior to ASF or if this one has deducted opposition;
s) The disrespect for the inhibition of the exercise of voting rights in
society manager of pension funds;
t) The omission of submission to the ASF of a financing plan,
when mandatory under the terms of this diploma;
u) The failure to comply with the recovery measures determined by the
ASF under the terms of this diploma;
v) The omission of delivery of the documentation required by ASF for the
case individually considered;
w) The lack or deficient provision of the information required by ASF for
the individually considered case;
x) The failure to comply with applicable accounting rules, determined by
law or by regulation, when it results in serious injury to the
knowledge of the entity's patrimonial and financial situation
manager of pension funds in cause or pension funds
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by you managed;
y) The violation by the managing entity of pension funds of the obligation
of constitution of individual accounts or separation of heritage
in quotes-part;
z) The failure to comply with the legal and regulatory standards relating to
remittion of the pension in capital or its transformation in another type of
income under the terms of pension plans;
aa) The default of the duty to refund the amount determined
in function of the contributions made by the participants, in cases
provided for in Article 8 (4);
bb) The default, by the managing body of pension funds, of the
duty of insurance celebration on behalf of and on account of the beneficiary,
for guarantee of pensions resulting from pension plans of
defined contribution;
cc) The failure to comply with the legal and regulatory standards concerning the
payment of pensions, resulting from pension plans of
defined contribution, directly by the pension fund;
dd) The default, by the managing body of pension funds, of the
legal and regulatory provisions referring to acquired rights
and the portability of benefits;
ee) The failure to comply with the duty, by the managing body of funds of
pensions, disclosure of the value of the units of participation, of the
discriminated composition of the applications of the fund or the number of
units of participation in circulation with periodicity
legally provided for;
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ff) The default of duties as to the managing entity of funds of
pensions incumbent on the extinction of the funds per se
managed and the settlement of the patrimony patrimony;
gg) Failure to comply or poor compliance by managing entity
of a requirement pension fund or duty fixed in the scope of
Prudential regime of pension funds by this degree and
too much applicable legislation or respect regulation, when
precept of concrete determination of ASF;
hh) Non-compliance or poor compliance by managements society
of a pension fund of requirement or duty fixed in the framework of
respects financial conditions by the present diploma and too much
applicable legislation or respect regulation, when preceded
of concrete determination of ASF;
ii) The realization of operations with derivative products and operations of
loan with unauthorized entities legally for the purpose,
as well as the conclusion of deposit contracts with entities that
are not legally entitled to receive the titles and too much
representative documents of the securities that integrate the
pension fund;
jj) The violation, by the managing entity of pension funds, of the
legal and regulatory assumptions for the payment of new
pensions or for the transfer of corresponding values to
rights acquired;
kk) The default by the managing entity of pension funds of the
settlement regime provided for in Article 31;
ll) The failure to comply with the legal obligation, on the part of the managing entity of
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pension funds, the extinction of the pension fund or the membership
collective when the associate does not proceed to the payment of the
contributions due to ensure compliance with the amounts
legally required funding minimums;
mm) The violation of the ban on transfer, global or partial, of
powers of the managing entity of pension funds to third parties;
nn) The breach by the managing entity of pension funds from the duty of
independent acting and in the exclusive interest of the beneficiaries,
participants and associates;
oo) The violation of acting duties with diligence and competence
professional by the managing entity of pension funds;
pp) The practice of act, by entity manager of pension funds,
depositary or subcontractor entity that substantiates situation
of conflict of interest with the pension fund, other than
considered very serious counterordinance;
qq) The failure to fulfil the duty of the holders of the administration bodies
and employees of the managing body who exercise decision-making functions
and execution of investments do not exercise functions in another entity
manager of pension funds;
rr) The use of interposed persons for the purpose of achieving a
result whose direct achievement would imply the practice of
simple or serious counterordinance.
Article 96-P
Very serious counterorders
They are punishable with fine of € 15000 a € 1000000 or € 30000 a € 5000
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000, depending on whether it is applied to the natural or collective person, the following
counterorders:
a) The exercise, by the managing entities of pension funds of
activities that do not integrate your social object;
b) The fraudulent realization of the social capital of society gestures
pension fund;
c) The concealment of situation of financial insufficiency of the managing entity
or of the pension fund;
d) The falsification of the accounting of the pension fund or the entity
manager of pension funds;
e) The refusal or obstruction of the exercise of the inspection activity by the ASF;
f) The impediment or obstruction to the exercise of supervision by the ASF,
specifically by default, in the time limits set, of the
instructions dictated in the individual case considered, for compliance
of law and respect regulation;
g) The acts of ruinous management, practiced by the members of the organ of
administration, by the top directors and too many people who drive
effectively the managing entity, scrutinize it or are responsible for
another key function, with injury to the associates, participants and
beneficiaries;
h) The practice, by holders of qualified shareholdings, of acts that
prevent or hinder, in a serious way, the sound and prudent management of the
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managing entity of participative pension funds or funds of
pensions by it managed;
i) The conclusion of constitutive contracts, the formalization of
management regulations and the conclusion of collective adherence contracts
without prior authorization from ASF, when legally due;
j) The amendment to the constitutive contracts, management regulations and
collective adhesions without prior authorization from ASF, when legally
due;
k) Failure to comply or poor compliance with duty to
information or clarification, for with the general public or for
with the associates, participants and beneficiaries, who induce in
wrong conclusions about the situation of the managing entity of funds
of pensions or pension funds by it managed;
l) The provision to ASF of inaccurate information susceptible to induce in
wrong conclusions of identical effect or similar to what they would have
false information about the same object;
m) The exercise of positions or functions in managing entity of funds of
pensions, in violation of legal prohibitions or the revelation of opposition
express from ASF;
n) The practice of acts of pension fund management, with a view to
obtaining own benefits or for third parties, at the expense of the
interests of the associates, participants and beneficiaries;
o) The violation by the managing entity of the patrimonial autonomy regime
of the pension funds provided for in Article 11;
p) The violation of the regime of the vedata or conditioned acts provided for in the
article 36;
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q) The violation by managing entity of pension funds, entity
subcontractor, holders of the respected social bodies and companies in
domain or group relationship, of the duty not to buy for you
elements of the heritage of pension funds per se managed, nor
sell own assets to these pension funds;
r) The violation by associate, holder of its social bodies and companies
with which to find yourself in domain or group relation, of the
duty to not buy for themselves elements of the heritage of the background of
pensions per se financed, nor sell own assets to that fund,
directly or by interposed person;
s) The failure to comply with the provisions relating to incompatibilities of the
holders of the social bodies, under the terms of paragraph d) of the Article 2 (2)
38.
t) The contraction or issuance of loans in default of the
limits and conditions laid down in Article 45;
u) The use of interposed persons for the purpose of achieving a
result whose direct achievement would imply the practice of counterordinance
very serious;
v) The remaining acts that gravely harm the sound and prudent management
of the entity.
Article 96-Q
Punishability of neglect and attempt
1-A attempt and neglect are always punishable.
2-A attempt is punishable by the penalty applicable to the illicit consummate,
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especially attenuated.
3-In the event of negligence, the maximum and minimum limits of the fine are
reduced to half.
Article 96-R
Ancillary sanctions
1-Conjointly with the fines provided for in Articles 96-N to 96.-P may
be applied the following ancillary sanctions:
a) Apprehension and loss, in favour of the State, of the object of the infraction and of the
economic benefit obtained by the offender through his practice, with
observance, in the applicable part, of the provisions of the general regime of the
counterorders;
b) When the agent is a natural person, inhibition of the exercise of
functions of administration, direction, bosses, organ entitlement
social, representation, mandate and surveillance in the entities subject to the
supervision of ASF and in those with these to be found in relation to
domain or group, for a period up to three years, in cases
provided for in Articles 96-N and 96.-O, or from one to 10 years, in cases
provided for in Article 96-P;
c) Total or partial interdiction, for a period up to three years, of
conclusion of contracts with new associates, participants,
beneficiaries or adherents of the pension fund to which the
counterordinance respects;
d) Total or partial interdiction, for a period of one to 10 years, of the
management activity and marketing of new pension funds;
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e) Suspension, for a period of six months to three years, of the exercise of the
right to vote allotted to the shareholders of the entities subject to the
supervision of ASF;
f) Publication of the definitive or transitioned decision on trial.
2-A publication as referred to in point f) of the previous number is effected, in the
full or by excerpt, at the expense of the offender, in an idopic place for the
compliance with the protection purposes of customers and the system
financial, specifically, in a national, regional or local newspaper,
depending on what, in the case, appears more appropriate "
Article 96-S
Subsidiary law
The infractions provided for in this Chapter shall be subsidally applicable, in
anything that does not contravenes the provisions of it constant, the general regime of the illicit
of mere social ordinance, constant of the Decree-Law No. 433/82, of 27 of
October, as amended by the Decrees-Laws 356/89, of October 17, 244/95,
of September 14, and 323/2001, of December 17, and by Law No. 109/2001,
of December 24. "
Article 6.
A systematic change to Decree-Law No. 12/2006 of January 20
1-Is
Added to Decree-Law No. 12/2006 of January 20, as amended by Decrees-Laws
180/2007, of May 9, 357-A/2007, of October 31, 18/2013, of February 6, and
[Reg. DL 208/2015], the title IX, with the epitome "Santions", being the current Title IX
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renumbered, in which the following chapters include:
a) C
apChapter I, with the epitographer "Illegal penal", which includes Articles 96 to 96.-C;
b) C
apChapter II, with the episting "Contraordenations", in which the following include
sections:
i) S
ection I, with the epitome "General provisions", which includes the articles 96-D to
96.-M;
ii) S
ection II, with the epitome "Iliytes in particular", which includes articles 96-N a
96 .ºS-S.
2-Is
adjourns to Chapter II of Title III of the Decree-Law No 12/2006 of January 20,
changed by Decrees-Laws n. ºs 180/2007, of May 9, 357-A/2007, of 31 of
October, 18/2013, of February 6, and [Reg. DL 208/2015], section IV, with the epiggraft
"Transfers", being the current section IV renumbered, which includes Article 29 .ºA.
Article 7.
Amendment to the legal regime of the insurance contract
Articles 12, 15, 38, 181, 185, 205, 205 and 208 of the legal regime of the contract
of insurance, approved by the Decree-Law No. 72/2008 of April 16, go on to the following
essay:
" Article 12.
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[...]
1-Are absolutely imperative, not admitting convention in the sense
diverse, the provisions set out in this section and of Articles 16,
32, 34 and 36, of Article 38 (1), of Articles 43 and 44, of paragraph 1 of the
article 54, of Articles 59 and 61, of Article 80 (2) and 3 (3) of the
article 117 and Article 119 para.
2-[...].
Article 15.
[...]
1-[...].
2-[...].
3-[...].
4-In the event of a refusal to conclude an insurance contract or
worsening of the respective premium on the grounds of disability or at risk
aggravated health, the insurer shall, on the basis of the data obtained in the
terms of the previous number, provide to the bidder, without dependence on
request in this sense, information on the ratio of the risk factors
specific and the risk factors of person in comparable situation but not
affected by that disability or aggravated risk of health, pursuant to the
article 178 to 6 of Article 178 para.
5-In the event of non-compliance with the duty of information in the terms provided for
in the previous number or dissent or dissatisfaction in relation to the decision
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of refusal or aggravation, may the bidder present a
complaint with the ASF, which afheres to the observance of the applicable regime by
part of the insurer.
6-When it communicates the decision of refusal or aggravation and through the
same as medium and support, should the insurer inform the bidder of the
possibility to complain to the ASF in the terms of the previous number.
7-[ Revoked ].
8-[ Revoked ].
9-[...].
Article 38.
Nominative policy or order
1-A insurance policy can only be nominative or to the order, being nominative
in the lack of stipulation of the parties as to the respectful modality.
2-[...].
3-[ Revoked ].
4-[...].
Article 158.
[...]
1-[ Previous body of the article ].
2-By way of derogation from the provisions of Article 38 (1), the policy may be to
holder by transferring in that case the contractual rights of the holder who
be a policyholder or policyholder, unless otherwise convention.
Article 181.
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[...]
1-A realization of non-sub-rogue insurance benefits the insurer in the rights
of the insured person or the beneficiary against a third party that gives cause to the
sinister, unless otherwise convention in respect of benefits
indemnity from the insurer.
2-For the purpose of the forecast in the preceding paragraph:
a) They are indemnifying the benefits due by the insurer for being
necessary for the repair of the damage;
b) In case of doubt, the indemnifying character of the provision of the
insurer depends on express and clear contractual prediction in that
meaning.
3-A contractual prediction of the convention provided for in paragraph 1 is written in
carateres seconded and subject to the regime provided for in paragraphs 1 and 2 of Article 22 para.
Article 185.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
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h) [...];
i) [...];
j) [...];
k) A concrete reference to the report on solvency and the situation
financial referred to in Article 83 of the Legal Access Regime and
Exercise of the Insurance and Resinsurer Activity, allowing the
insurance borrower an easy access to that information;
l) The information specific to the modality of insurance contract
necessary to ensure full understanding by the borrower of the
insurance of the risks underlying the insurance contract by you assumed.
2-[...].
3-[...].
4-[...].
5-Should the insurer, in relation to an offer or in the context of the celebration of a
life insurance contract, provide potential refund values higher than the
contractually agreed payments, must provide the policyholder with a
specimen of calculation in which the potential payment on the due date is
defined by applying the bases of calculation of premiums using three
different interest rates.
6-The insurer shall inform the policyholder, in a clear manner and
understandable, that the calculation specimen constitutes only a model of
computing and that the policyholder can not extrapolate from any
contractual rights.
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Article 205.
[...]
1-[...].
2-[...].
3-Without prejudice to the provisions of the preceding paragraph, should the insurer provide
quantitative data on the possible future evolution of participation in the
results, it must inform the policyholder of the differences between the
real evolution and the initially communicated data.
4-[ Previous Article No 3 ].
Article 208.
[...]
1-[...]:
a) [...];
b) [...];
c) The benefits to be met by the underwriter of the title;
d) [...];
e) [...];
f) The indication that the title's underwriter may apply for, to any
moment, the following information:
i) [...];
ii) [...];
g) [...];
h) [...];
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i) [...];
j) [...];
l) [...];
m) [...].
2-[...].
3-[ Revoked ].
4-[...].
5-[...].
6-[...]. "
Article 8.
Amendment to Decree-Law No 40/2014 of March 18
Article 2 of the Decree-Law No. 40/2014 of March 18, amended by the Decree-Law
n ° 157/2014 of October 24, it shall have the following essay:
" Article 2.
[...]
1-[...]:
a) [...];
b) [...];
c) The Insurance Supervisory Authority and Pension Funds (ASF),
with respect to entities that are subject to their supervision,
specifically, insurance and reinsurance companies, funds of
occupational pensions and respect managing entities.
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2-Pursuant to Art. 10 (5) of the Regulation, the authorities
competent for the supervision of the performance of duties imposed by
this to non-financial counterparties, as well as to the enqutment of the
respects infractions, procedural instruction and the application of fines and
ancillary sanctions, are:
a) The ASF, with respect to entities that are subject to its
supervision, specifically, separate pension funds from the
referred to in paragraph c) of the previous number and respect entities
managers and insurance or reinsurance mediators as long as they do not
subject to the supervision of another authority in the terms of the number
previous;
b) The CMVM, with respect to non-financial counterparties no
included in the previous paragraph. "
Article 9.
Cumulative Exploration of the Life and Non-Life branches
Without prejudice to the provisions of Article 89 of the RJASR, the insurance undertakings which, at the date of
publication of this Law, are found to be allowed to cumulatively explore in
Portugal the insurance activity of the Non-Life branches and the insurance activity of the Life branch
can continue this cumulative exploration.
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Article 10.
Rights acquired
The regime of access to the insurer or reinsurer activity provided for in the RJASR no
undermines the rights acquired by the insurance or reinsurance companies based in
Portugal, by insurance and reinsurance companies based in other Member States
that they exercise their activity in Portuguese territory through branch or in free
provision of services and the branches of insurance companies of third countries that
exercise activity in Portuguese territory, becoming subject to the exercise regime of
beholdant activity.
Article 11.
Application in the time of counterordinational regimes
1-A
the facts provided for in Articles 376 to 378 of the RJASR practiced prior to the production of
effects of this law and punishable as counterordinations under the legislation
repealed, in respect of which no proceedings have yet been instituted, it is
applicable the provisions of that scheme and in Annex II to this Law, without prejudice to the application
of the most favorable law.
2-A
the facts provided for in Articles 96-L to 96.-N of the Decree-Law No. 12/2006, 20 of
January, practiced prior to the production of effects of this law and punishable as
counterordinations under the legislation now repealed, in relation to which still
no proceedings have been instituted, the provisions of the Decree-Law shall apply
n ° 12/2006 of January 20 and in Annex II to this Law, without prejudice to the application of the
more favorable law.
3-N
pending processes on the date referred to in the previous figures continues to be applied
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to the facts in them constant substantive and procedural legislation before, without prejudice
of the application of the most favourable law.
Article 12.
Pending applications
The changes of regime arising from this Law shall not apply to the requirements
pending on the date of the respective production of effects.
Article 13.
Information to be provided to the European Insurance and Pensions Authority
Supplementary to Reform on the measures on long-term guarantees
deadline and on the transitional regime concerning the shareholder risk
Until January 1, 2021, ASF provides annually to the European Insurance Authority and
Supplementary Retirement Pensions (EIOPA) the following information:
a) Existence of long-term guarantees in insurance products
marketed in the national market and acting of the insurance and business enterprises
reinsurance as long-term investors;
b) Number of insurance and reinsurance companies applying for the adjustment of
congruence, the volatility adjustment, the extension of the term of
recovery pursuant to paragraphs 5 a to 11 of Article 306 of the RJASR, the sub-module of
shareholder risk provided for in paragraphs 5 a to 7 of Article 125 of the RJASR and the schemes
transients provided for in Articles 24 and 25;
c) Impact on the financial situation of insurance and reinsurance companies
of the adjustment of congruence, volatility adjustment, adjustment
symmetric included in the calculation of the capital requirement for the predicted shareholder risk
in paragraphs 1 a to 4 of Article 125 of the RJASR, of the planned shareholder risk submodule
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in paragraphs 5 a to 7 of Article 125 of the RJASR and of the transitional arrangements provided for in
articles 24 and 25, both at the national level and, without nominative identification, for
each company;
d) Effect of the congruence adjustment, of the volatility adjustment, of the
symmetric adjustment included in the calculation of the capital requirement for risk
shareholder provided for in paragraphs 1 a to 4 of Article 125 of the RJASR and of the risk submodule
shareholder provided for in paragraphs 5 a to 7 of Article 125 of the RJASR on the acting of the
insurance and reinsurance undertakings in respect of investment, indicating whether the
same offer a disappropriate reduction of the capital requirements;
e) Effect of the extension of the recovery period in accordance with paragraphs 5 a to 11
Article 306 of the RJASR on the efforts of insurance and reinsurance companies
to re-establish the level of eligible own funds needed to cover the
solvency capital requirement, or to reduce your risk profile in order to
ensure compliance with the said requirement;
f) In case insurance and reinsurance companies apply the transitional schemes
provided for in Articles 24 and 25, indication as to whether they comply with the plans
of the progressive application referred to in Article 26, as well as the perspetives as
a decrease in reliance on these transitional regimes, including the
measures taken or provided for by the companies and the ASF, taking into consideration
the national legal framework.
Article 14.
Progressive application of the powers of approval or authorization of the Authority of
Supervision of Insurance and Pension Funds
1-A As of the date of the entry into force of this Law, the ASF has powers of
approval or authorisation in the context of the following subjects:
a) Supplementary own funds, pursuant to Article 110 of the RJASR;
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b) Classification of the elements of own funds, in accordance with Article 2 (2)
113. of the RJASR;
c) Specific parameters of companies, pursuant to paragraphs 9 a to 11 of Article 120.
of the RJASR;
d) Total or partial internal models, pursuant to articles 132, 134 and 135.
of the RJASR;
e) Exercise of activity in Portugal by part of entities with object
specific securitisation of insurance risks, in accordance with Article 19 of the
RJASR;
f) Supplementary own funds from a shareholding company
in the intermediate insurance sector, pursuant to paragraphs 3 and 4 of Article 266 of the
RJASR;
g) Internal models of the groups, pursuant to Articles 270 and 271 and paragraph 6
of Article 273 of the RJASR;
h) Application of the action-risk submodule based on the period of detention
typical of investments in shares by the insurance company, pursuant to paragraphs 5 a
7 of Article 125 of the RJASR;
i) Application of the adjustment of congruence to the temporal structure of the rates of
interest without relevant risk, pursuant to Articles 96 and 97 of the RJASR;
j) Application of volatility adjustment to the temporal structure of interest rates
with no relevant risk, pursuant to Article 98 of the RJASR;
k) Implementation of the transitional arrangements on ris-free interest rates, on the terms
of Article 24;
l) Implementation of the transitional arrangements on technical provisions, pursuant to the
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article 25 para.
2-A As of the date of the entry into force of this Law, the ASF has powers
regarding the following subjects:
a) Determination of the scope and levels of application of supervision at the level of the
group, under the terms of Articles 253 to 257 of the RJASR;
b) Designation of the supervisor of the group, pursuant to Article 284 of the RJASR;
c) Establishment of a college of supervisors under the terms of Articles 285 and 286 of the
RJASR.
3-A as of the date of the entry into force of this Law the ASF has yet to
powers to:
a) Decide on the deduction of shareholdings, pursuant to Rule 268 of the
RJASR;
b) Determine the choice of the method of calculating solvency at the group level,
in the terms of Article 260 of the RJASR;
c) Decide, where necessary, on the equivalence under the terms of Articles 267 and
299. of the RJASR;
d) Decide on the application for the subject of the insurance and reinsurance undertakings to the
rules set out in Articles 277 and 278, pursuant to Article 275 of the
RJASR;
e) In the event of an absence of equivalence, adopt the decisions referred to in Articles 301.
and 302. of the RJASR;
f) Determine, if appropriate, the implementation of the transitional arrangements provided for in the Articles
15, 16, in paragraphs 1 and 2 of Article 17, in Articles 18, 19, in paragraphs 1 a to 6 of the
article 20, and in Articles 22 and 23.
4-A ASF analyzes and decides the applications for approval or authorization submitted by the
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insurance and reinsurance companies in the terms of the previous figures.
5-Decisions taken by ASF pursuant to this article only produce effects to
departure from January 1, 2016.
Article 15.
Transitional arrangements applicable to insurance and reinsurance undertakings in the phase of
cessation of activity
1-To insurance and reinsurance companies which, until January 1, 2016, leave from
celebrate new insurance or reinsurance contracts and to be limited to managing the
respects portfolio with a view to the cessation of its activity continues to apply the
Decree-Law No 94-B/98 of April 17, until the dates set out in paragraph 3, if:
a) Communicate in a reasoned manner to ASF, until January 1, 2016, which will
cessation of their activity before January 1, 2019; or
b) Be subject to the recovery measures and be appointed an administrator for
the effect.
2-The provisions of the preceding paragraph shall apply to insurance and reinsurance undertakings which:
a) Do not integrate a group or, if they integrate, the totality of the companies that do
part of the group stop celebrating new insurance or reinsurance contracts;
b) Submit to ASF an annual report on the progress made
regarding the cessation of their activity; and
c) Please notify the ASF that they check one of the conditions laid down in the number
previous.
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3-Should the ASF consider insufficient progress towards the cessation of the
activity of the Company, the RJASR approved by this Law shall apply:
a) As of January 1, 2019, or from the previous date on which ASF considers
insufficient progress made, in respect of insurance companies and
reinsurance that are enrolled in the ( a) of paragraph 1;
b) As of January 1, 2021, or from the previous date on which ASF considers
insufficient progress made, in respect of insurance companies and
reinsurance that are enrolled in the ( b) of paragraph 1.
Article 16.
Transitional arrangements applicable to the information to be provided to ASF for the purpose of
supervision
1-Until January 1, 2020, the information referred to in paragraphs 1 a to 5 of Article 81 of the
RJASR, presaged with annual or lower periodicity, are premised on ASF in the
following deadlines:
a) Up to 20 weeks after the end of the financial year 2016, with reference to that
exercise;
b) Up to 18 weeks after the end of the financial year 2017, with reference to that
exercise;
c) Up to 16 weeks after the end of the financial year 2018, with reference to that
exercise;
d) Up to 14 weeks after the end of the financial year 2019, with reference to that
exercise.
2-Until January 1, 2020, the information referred to in paragraphs 1 a to 5 of Article 81 of the
RJASR, presaged with quarterly periodicity, are premised on ASF on the following
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deadlines:
a) Up to eight weeks after the end of each quarter of 2016, with reference to the
previous quarter;
b) Up to seven weeks after the end of each quarter of 2017, with reference to the
previous quarter;
c) Up to six weeks after the end of each quarter of 2018, with reference to the
previous quarter;
d) Up to five weeks after the end of each quarter of 2019, with reference to the
previous quarter.
3-The provisions of the preceding paragraphs shall apply, with due adaptations, to undertakings
of participating insurance and reinsurance companies, holding companies in the
insurance sector and mixed financial companies at the group level, in the terms of the
articles 292 and 294 of the RJASR, being the time limits set out in the preceding paragraphs
Respectively extended for six weeks.
Article 17.
Transitional arrangements applicable to the report on solvency and the financial situation
1-Until January 1, 2020, the deadline for insurance and reinsurance companies
publicly disseminates the annual report on solvency and financial situation
referred to in Article 83 of the RJASR is as follows:
a) Up to 20 weeks after the end of the financial year 2016, with reference to that
exercise;
b) Up to 18 weeks after the end of the financial year 2017 with reference to that
exercise;
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c) Up to 16 weeks after the end of the financial year 2018, with reference to such exercise;
d) Up to 14 weeks after the end of the financial year 2019, with reference to that
exercise.
2-The provisions of the preceding paragraph shall apply, with due adaptations, to the undertakings of
insurance and reinsurance participants, to holding companies in the sector
of the insurance and the mixed financial companies at the group level, pursuant to the
articles 292 and 294 of the RJASR, being the time limits provided for in the preceding paragraph
Respectively extended for six weeks.
3-Without prejudice to the disclosure of the total solvency capital requirement referred to in the
subparagraph ii) of the paragraph e) of Article 83 (2) of the RJASR, until December 31, 2020,
insurance and reinsurance companies may not disclose separately the
accruals of the solvency capital requirement or the impact of the specific parameters
that the insurance or reinsurance company shall use by force of the ( a) of paragraph 1 and n.
2 of Article 131 of the RJASR.
Article 18.
Transitional arrangements applicable to own funds
1-By way of derogation from the provisions of Article 112 of the RJASR, by January 1, 2026 they are
included in the level 1 of the basic own funds the elements of the own funds of
basis that:
a) Have been issued before January 1, 2016 or before the date of entry
in force of the delegated act referred to in Article 97 of the Directive n.
2009 /138/CE, of the European Parliament and of the Council, of November 25 of
2009, whichever occurs first;
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b) At the date of December 31, 2015, they are accepted as part of the margin of
solvency available, up to a maximum of 50% of the required solvency margin, in the
terms of Article 96 (2), Article 98 (2) and 1 (1) of Article 122 (2)
of Decree-Law No. 94-B/98 of April 17, and respect regulation;
c) Otherwise they would not be ranked at level 1 or level 2, under the terms of the
article 112 of the RJASR.
2-By way of derogation from the provisions of Article 112 of the RJASR, by January 1, 2026 they are
included in the level 2 of the basic own funds the elements of the own funds of
basis that:
a) Have been issued before January 1, 2016 or before the date of entry
in force of the delegated act referred to in Article 97 of the Directive n.
2009 /138/CE, of the European Parliament and of the Council, of November 25 of
2009, whichever occurs first;
b) At the date of December 31, 2015, they are accepted as part of the margin of
solvency available, up to a maximum of 25% of the required solvency margin, in the
terms of Article 96 (2), Article 98 (2) and 1 (1) of Article 122 (2)
of Decree-Law No. 94-B/98 of April 17, and respect regulation.
Article 19.
Transitional arrangements applicable to investments
Regarding insurance or reinsurance companies that invist in securities
negotiable or other financial instruments based on the structuring of loans
whose date of issue is earlier than January 1, 2011, the requirements referred to in the act
delegate provided for in Article 135 (2) of the Directive No 2009 /138/CE of the Parliament
European and of the Council of November 25, 2009 only applicable in cases in
that have been added or replaced new underlying exposures thereafter
to December 31, 2014.
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Article 20.
Transitional arrangement applicable to the calculation of the solvency capital requirement and the
minimum capital requirement
1-By way of derogation from the provisions of Article 116, in paragraphs 2 a to 4 of Article 117 and in the
article 120 of the RJASR, the parameters to be used in the calculation of the risk submodule of
concentration and the risk submodule of spread according to the standard forex of the
solvency capital requirement, pertaining to exposures to central governments or banks
central member states denominated and financed in the currency of another State
member, stay subject to the following requirements:
a) Until December 31, 2017 they correspond to those who would apply if those
exhibitions were termed and financed in their national currency;
b) In 2018 they are reduced by 80%;
c) In 2019 they are reduced by 50%;
d) As of 2020 they are not reduced.
2-By way of derogation from the provisions of Article 116, in paragraphs 2 a to 4 of Article 117 and in the
article 120 of the RJASR, the parameters to be used, in relation to shares acquired by the
company until January 1, 2016, in the calculation of the share-risk submodule of agreement
with the standard forex of the solvency capital requirement without the application of the willing
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in paragraphs 5 a to 7 of Article 125 of the RJASR, they are calculated as the weighted average between
the parameters to be used in the calculation of the said submodule with and without the application of the
provisions of Article 125 (125) of Article 125 of the RJASR.
3-In the calculation of the average provided for in the preceding paragraph, the weighting to be assigned to the
parameter that reflects the application of the provisions of paragraphs 5 a to 7 of Article 125 of the RJASR
increases linearly at the end of each year, going from 0% in the year 2016 to 100%
on January 1, 2023.
4-By way of derogation from the provisions of paragraphs 3 and 4 of Article 306 of the RJASR and without
Injury to the provisions of paragraphs 5 a to 11 of the same provision, should the insurance company or
of reinsurance possesses sufficient available solvency margin in the face of the margin of
required solvency set out in paragraphs 1 a to 9 of Article 97, in paragraphs 1 a to 3 of Article 99 and
in Articles 100 and 122-I of the Decree-Law No 94-B/98 of April 17, and respect
regulation at the date of January 1, 2016, but does not comply with the capital requirement of
solvency in the first year of application of the RJASR, ASF requires that the company concerned
take the necessary measures to increase the level of eligible own funds or to
reduce your risk profile, in order to ensure compliance with the capital requirement of
solvency until December 31, 2017.
5-In the case provided for in the preceding paragraph, the insurance or reinsurance company
presents, from three in three months, to ASF, a report on the developments of the situation,
by exposing the measures taken and the progress made in the face of the goals laid out there.
6-A The term dilation provided for in paragraph 4 is repealed should the report on the
changes in the situation referred to in the preceding paragraph evidenced that, between the date of the
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verification of the default of the solvency capital requirement and the date of the
presentation of the report, no significant progress is found in the face of the goals
predicted in the same number.
7-A ASF may require, by December 31, 2017, that insurance companies and
of reinsurance apply the percentages provided for in Article 147 (6) of the RJASR
exclusively to the solvency capital requirement calculated using the formula-
default.
Article 21.
Transitional arrangements applicable to compliance with minimum capital requirement
By way of derogation from the provisions of Articles 175 to 177, in Article 307, para. a) of paragraph 2
of Article 309 and paragraphs 1 and 4 of Article 310 of the RJASR, should the insurance company and of
reinsurance with sufficient available solvency margin in the face of the margin of
required solvency set out in paragraphs 1 a to 9 of Article 97, in paragraphs 1 a to 3 of Article 99 and in the
articles 100 and 122-I of the Decree-Law No 94-B/98 of April 17, and respect
regulation at the date of December 31, 2015, but do not possess own funds of
sufficient eligible basis to cover the minimum capital requirement, the same should take the
measures necessary to comply with the provisions of Article 146 of the RJASR at least from
of December 31, 2016, under penalty of revocation of the permit.
Article 22.
Transitional arrangements applicable to the approval of internal models
of insurer groups and reinsurers
By March 31, 2022, the parent companies of insurance and top reinsurance can
submit an application for approval of an internal model of the group applicable to a Party
of the group, in cases where, either the insurance or reinsurance companies included in that
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part, whether the top parent company, are situated in the same Member State and the
said part constitutes a separate part with a substantially risk profile
different from the rest of the group.
Article 23.
Transitional arrangements applicable to the supervision of the solvency of insurer groups and
reinsurers
1-By way of derogation from the provisions of paragraphs 2 and 3 of Article 258 of the RJASR, the transitional arrangements
provided for in Articles 18 and 19, in Article 20 (1) and in Articles 24 to 26 is
applicable, with due adaptations, at the level of the group.
2-By way of derogation from the provisions of paragraph 2 a to 4 of Article 258 of the RJASR, the scheme
transitional provided for in Article 20 (4 a) of Article 20 shall apply, with due adaptations,
at the group level, in cases where insurance or reinsurance companies
participants or who are part of a group comply with the solvency requirement
corrected in accordance with Article 172-F of the Decree-Law No. 94-B/98 of April 17, but
not the solvency capital requirement of the group.
Article 24.
Transitional arrangements applicable to interest-free interest rates
1-Insurance and reinsurance companies may, by prior approval of the ASF,
apply a transitional adjustment to the temporal structure of the ris-free interest rates
relevant, with regard to the insurance and reinsurance responsibilities of the branch
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Life that fulfill the following requirements:
a) The contracts that are associated with them are concluded before January 1 of
2016, excluding contractual renewals that occur on the said date or
later;
b) The respective technical provisions are determined in the terms of Articles 81 to
87. of the Decree-Law No. 94-B/98 of April 17, and respect for regulation, at the date
of December 31, 2015 that the said diploma shall be applicable; and
c) They are not applied to the congruence adjustment provided for in Article 96 of the
RJASR.
2-For each currency, the transitional adjustment referred to in the preceding paragraph shall be calculated
as a percentage of the difference between:
a) The rate of interest as determined by the insurance or reinsurance company
pursuant to Articles 81 to 87 of the Decree-Law No 94-B/98 of April 17, and
respects regulation, at the date of December 31, 2015;
b) The effective annual fee, calculated as the single discount rate that, if applied to the
cash flows from the portfolio of insurance or reinsurance liabilities
eligible under paragraph 1, results in a value equal to that of the best estimate of the
said portfolio, being the temporal value obtained with recourse to the temporal structure
of the interest rates without relevant risk referred to in Article 93 (1 a) (93) of the
RJASR.
3-A percentage to which the preceding paragraph is stated decreases linearly at the end of each
year, passing from 100% in the year 2016 to 0% on January 1, 2032.
4-It is vetted the application of the congruence adjustment provided for in Article 96 of the RJASR
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to the portfolios of insurance or reinsurance responsibilities in which the
transitional adjustment provided for in paragraph 1.
5-In cases where insurance and reinsurance companies apply the adjustment of
volatility provided for in Article 98 of the RJASR, the temporal structure of interest rates
with no relevant risk referred to in paragraph b) of paragraph 2 corresponds to the temporal structure
adjusted in the terms of the said article.
6-Insurance and reinsurance companies that apply the planned transitional adjustment
in paragraph 1 shall become subject to the fulfilment of the following requirements:
a) Non-inclusion of eligible insurance or reinsurance liabilities in the
terms of paragraph 1 in the calculation of the volatility adjustment provided for in Article 98.
of the RJASR;
b) Non-application of the transitional arrangements provided for in the following article;
c) Public disclosure, in the report on solvency and the predicted financial situation
in paragraphs 1 a to 8 of Article 83 of the RJASR, of the application of the transitional adjustment to the
temporal structure of interest rates with no relevant risk, as well as of the
quantification of the impact of non-application of this transitional regime on its situation
financial.
Article 25.
Transitional arrangements applicable to technical provisions
1-Insurance and reinsurance companies may, by prior approval of the ASF,
apply a transitional deduction to the technical provisions, corresponding to a
percentage of the difference between:
a) The amount of technical provisions after deduction of recoverable amounts of
reinsurance contracts and entities with specific object of securitisation of
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insurance risks, calculated in accordance with Article 91 of the RJASR at the date of 1 of
January 2016;
b) The amount of technical provisions after deduction of recoverable amounts of
reinsurance contracts and entities with specific object of securitisation of
insurance risks, calculated in the terms of Articles 69 to 87 and Article 1 (1)
122.-G of the Decree-Law No. 94-B/98, of April 17, and respect regulation, à
date of December 31, 2015.
2-A The deduction referred to in the preceding paragraph may be applied at the level of the risk groups
homogeneous referred to in Article 101 of the RJASR.
3-A The percentage referred to in paragraph 1 decreases linearly at the end of each year,
passing from 100% in the year 2016 to 0% on January 1, 2032.
4-In cases where insurance and reinsurance companies apply the adjustment of
volatility provided for in Article 98 of the RJASR at the date of January 1, 2016, the amount
referred to in point (a) a) of paragraph 1 is calculated with the volatility adjustment to the
said date.
5-Mediating prior approval of ASF, or on the initiative of this Authority, the amounts
of the technical provisions used in the calculation of the transitional deduction referred to in points
a) and b) of paragraph 1, including, where applicable, the volatility adjustment, may be
recalculated in every two years, or with greater frequency in case the risk profile of the
company changes significantly.
6-A The transitional deduction referred to in paragraph 1 may be limited by the ASF in cases in
that of its application may result in a reduction in the financial requirements which are required to
company, by comparison with the requirements calculated in the terms of the Decree-Law
n 94-B/98, of April 17, and respect for regulation, at the date of December 31 of
2015.
7-Insurance and reinsurance companies applying the transitional deduction provided for in the
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n. 1 shall be subject to the fulfilment of the following requirements:
a) Non-application of the transitional arrangements provided for in Article 24;
b) In cases where they would not comply with the solvency capital requirement without the
application of the transitional deduction, annual submission to ASF of a report
by exposing the measures taken and the progress made towards, at the end of the period
transitional provided for in paragraph 3, re-establish the level of eligible own funds
required to cover the solvency capital requirement or to reduce your
risk profile, in order to ensure compliance with the said requirement;
c) Public disclosure, in the report on solvency and the predicted financial situation
in paragraphs 1 a to 8 of Article 83 of the RJASR, of the application of the transitional deduction to
technical provisions, as well as quantifying the impact of non-application of this
transitional arrangements in their financial situation.
Article 26.
Phased implementation plan of the transitional arrangements on rise-free interest rates
and the technical provisions
1-Insurance and reinsurance undertakings applying for the transitional arrangements provided for
in articles 24 or 25 immediately inform ASF so check that not
would comply with the solvency capital requirement without the application of the said schemes
transients.
2-In the case provided for in the preceding paragraph, the ASF requires that insurance and business enterprises
reinsurance take the necessary steps to ensure fulfillment of the requirement of
capital of solvency at the end of the transitional period.
3-Within two months of the verification of non-compliance with the requirement of
capital of solvency pursuant to paragraph 1, insurance and reinsurance companies
present to the ASF a progressive application plan exposing the measures provided for
set the level of eligible own funds required to cover the requirement of
solvency capital or to reduce your risk profile so as to ensure the
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compliance with the solvency capital requirement at the end of the interim period.
4-The progressive application plan provided for in the preceding paragraph may be updated by the
insurance and reinsurance companies during the interim period.
5-Insurance and reinsurance companies annually submit to ASF a report
by exposing the measures taken and the progress made to ensure compliance
of the solvency capital requirement at the end of the transitional period.
6-A ASF revokes the approval of the application of the transitional arrangements provided for in the Articles
24. or 25 in cases where the report referred to in the preceding paragraph evidenced that the
compliance with the solvency capital requirement at the end of the transitional period is not
expetable.
Article 27.
Transitional arrangements applicable to self-assessment of risk and solvency
In the case referred to in paragraph b) of Article 73 (5) of the RJASR, in cases where they are
applied the transitional regimens provided for in Articles 24 and 25, the self-assessment of risk and
of the solvency is effected, separately, with and without consideration, of the aforementioned schemes
transients.
Article 28.
Transitional arrangement applicable to the addition of the solvency capital requirement
1-In addition to the cases provided for in Article 29 (1) of the RJASR, following the
supervising process, ASF may, in excecional circumstances, fix an extra
of the solvency capital requirement of an insurance company or reinsurance subject
to your supervision, upon reasoned decision, in cases where the company of
insurance or reinsurance apply the transitional regimens provided for in Articles 24 and 25,
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and ASF conclude that the company's risk profile diverges significantly from the
assumptions underlying the aforementioned transitional regimes.
2-In the case provided for in the preceding paragraph, paragraphs 4 and 6 shall apply and the first part of the
n Article 29 (7) of the RJASR.
Article 29.
Transitional arrangements applicable to contracts for pension funds
For pension funds already constituted, the managing entities, on time
maximum of one year from the date of entry into force of this Decree-law,
promote the amendment of the constitutive contracts of closed pension funds, of the
closed pension fund management agreements, of the fund management regulations
of open pensions and adhesive respects, so as to comply with the provisions of the
present decree-law.
Article 30.
Transitional arrangements applicable to persons who effectively drive the company, the
supervise or exercise or are responsible for a key function
1-The persons subject to registration in accordance with Article 43 of the RJASR and the ( b) of paragraph 2
of Article 38 of the Decree-Law No 12/2006 of January 20, which on the date of the production of
effects of this Law if they find registered with the ASF, keep such a record up to the
date of cessation of the current term of office on that date.
2-The persons subject to registration in accordance with Article 43 of the RJASR and the ( b ) of paragraph 2
of Article 38 of the Decree-Law No 12/2006 of January 20, which on the date of the production of
effects of this Law are not found to be registered with ASF, but that on that date
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carry out duties subject to registration in the respective entities, they must apply for registration
to the ASF within two months after the publication of the regulatory standard provided for
in Article 43 (12)
3-A The assessment of the qualification and suitability requirements provided for in Article 66 of the
RJASR and in the c ) of Article 38 (2) of the Decree-Law No. 12/2006 of 20 of
January, even relatively for persons not subject to registration under Rule 43.
of the RJASR and the point b ) of Article 38 (2) of the Decree-Law No. 12/2006 of 20 of
January, as to persons who on the date of the production of effects of this Law to exercise
functions for which qualification and suitability requirements are required, shall be
effected within three months after that date.
Article 31.
Caveat of the insurance contracts and capitalization operations to the beholder
Are valid for insurance contracts or bearer capitalization operations
vigour on the date of publication of this Law.
Article 32.
Processing of personal data
1-Stay ASF authorized to proceed to the processing of personal data considered
sensitive in accordance with Article 7 (1) of Law No 67/98 of October 26, when
such processing is indispensable to the exercise of the legal assignments that are
committed and to the protection of the interests of policyholders, insured,
participants and beneficiaries.
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2-The processing and transfer of personal data resulting from the scheme provided for in
present law, of the RJASR, of the legal regime of the constitution and operation of the funds
of pension and respect entities managing bodies and the rules of procedure applicable to crimes
special insurers and pension funds and the rules of procedure applicable to the
counterorders whose processing competes with ASF processes accordingly
with the Law No. 67/98 of October 26.
3-The publications effected by ASF in the framework of counterordinational process, if
performed on the respective website on the Internet, they cannot be indexed to search engines.
Article 33.
Remissions
1-The constant remissions of legal, regulatory or administrative provisions for the
Decree-Law No. 94-B/98 of April 17, consider themselves to be made for the corresponding
standards of the RJASR.
2-The constant remissions of legal, regulatory or administrative provisions for the
Directives repealed by Directive No 2009 /138/CE, of the European Parliament and of the
Council, of November 25, 2009, consider themselves to be made for the correspondents
standards of this Directive.
Article 34.
Abrogation standard
They are revoked:
a) The Decree of October 21, 1907;
b) The Decree-Law No 94-B/98 of April 17, without prejudice to the provisions of the article
11., in Article 15, in para. b) of paragraph 1 and (1) b) of Article 18 (2), in the
n Article 20 (4), in Article 23 (2), paragraph 2 (2) b) of paragraph 1 and
in the paragraph b) of Article 24 (2), in para. b) of paragraph 1 and in Article 25 (6);
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c) The Decree-Law No 90/2003 of April 30;
d) Article 20 (5), paragraph 5 f) of Article 21 (2), the points g) , j) and p) from the
n Article 22 (2), Article 27 (2), paragraphs 7 a to 9 of Article 30, para. g)
of Article 31 (2), Art. 39 (5), Article 44 (2), paragraphs 2 and 3
of Article 46 (11), Article 75, Article 92 (6), and Article 92
96. of the Decree-Law No. 12/2006 of January 20, amended by the Decrees-Laws
n. ºs 180/2007, May 9, 357-A/2007, October 31, 18/2013, 6 of
February, and [Reg. DL 208/2015];
e) Articles 75, 81 to 96 of the Decree-Law No 144/2006 of July 31;
f) Article 54 (6) and Article 208 (3) of the legal regime of the contract of
insurance approved by Decree-Law No. 72/2008 of April 16.
Article 35.
Regulations in force
They remain in force, while they are not replaced, the provisions of the standards
regulations already issued by the ASF, in what do not contravene the legal regime.
Article 36.
Republication
1-It is republished, in Annex III to this Law and of which it is an integral part, the Decree-Law
n. 12/2006, of January 20, with the current essay.
2-For the purpose of republishing, where it reads: "Insurance Institute of Portugal" and "ISP" must
read "Insurance Supervisory Authority and Pension Funds" and "ASF".
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Article 37.
Production of effects
1-Without prejudice to the provisions of the following number, this Law shall produce effect from 1
of January 2016.
2-The provisions of Articles 8 and 14 shall produce effect on the date of entry into force of the present
law.
Seen and approved in Council of Ministers of April 30, 2015
The Prime Minister
The Minister of the Presidency and Parliamentary Affairs
