Key Benefits:
FELIPE VI
KING OF SPAIN
To all who present it and understand it.
Sabed: That the General Courts have approved and I come to sanction the following law.
INDEX
Preliminary title. General provisions.
Chapter I. Object and Scope.
Article 1. Purpose and purpose of the Act.
Article 2. Application subjective scope.
Article 3. Objective scope of application.
Article 4. Activities excluded.
Article 5. Operations prohibited to insurance entities.
Chapter II. Definitions.
Article 6. Entities.
Article 7. National supervisory authority.
Article 8. Member State of origin, host Member State and activities under the right of establishment and freedom to provide services.
Article 9. Participation or control relationships between entities.
Article 10. Regulated markets.
Article 11. Great risks.
Article 12. Community co-insurance.
Article 13. Governance and Outsourcing System.
Article 14. Risks.
Article 15. Reorganisation measures and settlement procedures.
Title I. Monitoring and competence bodies.
Chapter I. Powers of the General Administration of the State.
Article 16. Supervisory powers of the General Administration of the State.
Article 17. General Directorate of Insurance and Pension Funds.
Article 18. Advisory Board of Insurance and Pension Funds.
Chapter II. Powers of the Autonomous Communities.
Article 19. Distribution of competencies.
Title II. Access to the insurance and reinsurance activity.
Chapter I. Access to the activity of Spanish insurance companies and reinsurers.
Section 1. Activity Access Conditions.
Article 20. Administrative authority.
Article 21. Scope of the authorization.
Section 2. Requirements for obtaining authorization.
Article 22. General requirements for the authorisation of insurance and reinsurance entities.
Article 23. Refusal of authorization.
Article 24. Operations performed without administrative authority.
Article 25. Organizations and groupings.
Article 26. Prior query to monitoring authorities.
Article 27. Nature, form and name of insurance and reinsurance entities.
Article 28. Constitution.
Article 29. Name.
Article 30. Registered office.
Article 31. Social object.
Article 32. Program of activities.
Article 33. Social capital.
Article 34. Mutual Fund.
Article 35. Limitations on the distribution of dividends, derrams or any other kind of remuneration linked to social capital.
Article 36. Partners.
Article 37. Close links.
Article 38. Honorability and fitness of those who exercise the effective management or perform functions that integrate the entity's governance system.
Article 39. Responsibility and duties of the administrative or management bodies of the insurance or reinsurance entities.
Article 40. Administrative record.
Section 3. Insurance Mutuals, Insurance Cooperatives and Social Welfare Mutuals.
Article 41. Insurance mutuals.
Article 42. Insurance cooperatives.
Article 43. Social forecasting mutuals.
Article 44. Scope of coverage and benefits of social security mutual societies.
Article 45. Forecast mutual funds to be operated by insurance classes.
Section 4. Activity of Spanish insurance companies and reinsurers under the right of establishment and freedom to provide services in the European Union.
Article 46. Spanish entities that can operate in the European Union.
Article 47. Conditions for the establishment of branches.
Article 48. Communication to operate in freedom to provide services.
Article 49. Statistical information concerning the cross-border activities of the Spanish insurance companies.
Section 5. Activity of Spanish insurance companies and reinsurers in third countries.
Article 50. Creation of entities and other operations in third countries.
Chapter II. Access to the activity in Spain of insurance companies and reinsurers from other European Union states.
Section 1. General provisions for insurance and reinsurance entities.
Article 51. Insurance companies and reinsurers from other Member States that may operate in Spain.
Article 52. Observance of the legal provisions by the insurance companies and reinsurers operating in Spain under the right of establishment or freedom to provide services.
Article 53. Tributes and surcharges.
Article 54. Civil liability insurance in motor vehicles.
Section 2. Activity under the right of establishment of insurance and reinsurance entities domiciled in other Member States.
Article 55. Conditions of access to the activity under the right of establishment.
Article 56. Supervision of branches in Spain by the authorities of the State of origin.
Section 3. Activity in freedom to provide services of insurance and reinsurance entities domiciled in other Member States.
Article 57. Conditions for access to the activity under the freedom to provide services.
Article 58. Specific requirements for civil liability insurance in motor vehicles.
Article 59. Tax obligations.
Article 60. Subscription agencies.
Chapter III. Access to the activity in Spain of insurance companies and reinsurers from third countries.
Section 1. 3rd Third Country Insurance Entities.
Article 61. Authorisation of branches of insurance entities from third countries.
Article 62. Limitations to the activity in Spain of insurance entities in third countries.
Section 2. 3rd Third Country Reinsurance Entities.
Article 63. Branches of reinsurers from third countries.
Article 64. Activity in Spain of the reinsurers of third countries from the country of origin.
Title III. Exercise of the activity.
Chapter I. Government system of insurance and reinsurance entities.
Article 65. General requirements of the governance system.
Article 66. Risk management system, internal risk assessment and solvency, internal control system and governance system functions.
Article 67. Outsourcing of functions.
Chapter II. Valuation of assets and liabilities, financial guarantees and investments.
Section 1. Asset and liabilities valuation, and technical provisions rules.
Article 68. Valuation of assets and liabilities.
Article 69. Technical provisions.
Article 70. Requirement and increase of the amount of technical provisions.
Section 2. Own Funds.
Article 71. Determination of own funds.
Article 72. Classification of own funds at levels.
Article 73. Eligibility of own funds.
Section 3. Solvency Capital Requirement.
Article 74. Calculation of the Solvency Capital Requirement.
Article 75. Methods of calculation of the Solvency Capital Requirement.
Article 76. Additional mandatory solvency capital requirement.
Article 77. Responsibility of the administrative body in relation to internal models.
Section 4. Minimum Minimum Capital Requirement.
Article 78. Minimum capital requirement.
Section 5. Inversiones.
Article 79. Rules on investments by insurers and reinsurers.
Chapter III. Public information on the financial and solvency situation.
Article 80. Report on the financial and solvency situation.
Article 81. Waiver of disclosure of information in the report on the financial and solvency situation.
Article 82. Updates to the report on the financial and solvency situation and additional voluntary information.
Chapter IV. Accounting obligations.
Article 83. Accounting of insurance and reinsurance entities.
Article 84. Formulation of consolidated accounts of insurance and reinsurance group groups.
Chapter V. Regime of shares in insurance and reinsurance entities.
Article 85. Obligations relating to the acquisition of holdings in insurance and reinsurance entities.
Article 86. Effects of non-compliance.
Article 87. Obligations relating to the reduction of significant participation in an insurance or reinsurance undertaking.
Article 88. Additional reporting obligations.
Chapter VI. Corporate operations.
Section 1. th Portfolio Cession.
Article 89. Transfer of portfolio between insurance entities.
Section 2. Structural Modifications.
Article 90. Structural modifications.
Article 91. Exceptional assumptions of structural modifications.
Section 3. Statutory Amendments.
Article 92. Statutory amendments.
Section 4. The number of temporary unions and associations of insurers or reinsurers.
Article 93. Economic interest groups and temporary unions of insurance or reinsurance entities.
Chapter VII. Market behaviors.
Section 1.
Article 94. Premium rates and technical bases.
Article 95. Control of policies, rates and technical documentation of the activity.
Section 2. Information Duty.
Article 96. General duty of information to the policyholder.
Section 3. Conflicts Resolution Mechanisms. Other provisions.
Article 97. Conflict resolution mechanisms.
Article 98. Advertising.
Article 99. Protection of personal data.
Article 100. Fight against insurance fraud.
Chapter VIII. Special solvency regime.
Article 101. Scope of application.
Article 102. Conditions for the exercise of the entities subject to the special scheme.
Chapter IX. Community co-insurance. Limited reinsurance.
Article 103. Community co-insurance scheme.
Article 104. Technical provisions of Community co-insurance.
Article 105. Limited reinsurance.
Chapter X. Conditions relating to the exercise of the activity by branches and subsidiaries of insurance and reinsurance entities of third countries.
Article 106. Financial guarantees for branches of insurance companies and reinsurers domiciled in third countries.
Article 107. Arrangements for branches of entities domiciled in third countries authorised in several Member States.
Article 108. Equivalence of the solvency regime of reinsurers in third countries.
Title IV. Supervision of insurance and reinsurance entities.
Chapter I. General principles.
Article 109. Subjective and objective scope of monitoring.
Article 110. Proportionality of the actions of the Directorate-General for Insurance and Pension Funds.
Article 111. Transparency of supervisory action.
Article 112. Convergence of supervisory practices.
Article 113. General powers of supervision.
Article 114. Information to be provided for supervisory, statistical and accounting purposes.
Article 115. Supervision of insurance and reinsurance entities of the European Union operating in Spain under the right of establishment or freedom to provide services.
Article 116. Supervision of Spanish branches established in another Member State.
Chapter II. Financial supervision.
Article 117. Content of financial supervision.
Chapter III. Supervision of market conduct.
Article 118. Content of market conduct monitoring.
Article 119. Administrative protection.
Article 120. Prohibition of policies and tariffs.
Chapter IV. Supervision by inspection.
Article 121. Inspection actions.
Article 122. Subjects of the inspector activity.
Article 123. Inspector staff.
Article 124. Inspection powers.
Article 125. Documentation of the inspection actions.
Article 126. Supervision procedure by inspection.
Chapter V. Duty of professional secrecy and use of confidential information.
Article 127. Duty of professional secrecy.
Article 128. Exchange of confidential information.
Article 129. Cooperation with the European Insurance and Occupational Pensions Authority.
Article 130. Cooperation agreements with third countries.
Title V. Supervision of groups of insurance and reinsurance entities.
Chapter I. General provisions on groups.
Article 131. Definitions and rules on the supervision of groups of insurance and reinsurance entities.
Article 132. Groups subject to monitoring.
Article 133. Scope of group monitoring.
Chapter II. Exercising group monitoring.
Section 1. The functions and powers of the General Directorate of Insurance and Pension Funds as a group supervisor.
Article 134. Exercise of group supervisor duties by the General Directorate of Insurance and Pension Funds.
Article 135. Powers of the Directorate-General for Insurance and Pension Funds as group supervisor. College of Supervisors.
Article 136. Access to information and verification.
Section 2. Collaboration with other monitoring authorities.
Article 137. Call and consultation between supervisory authorities.
Article 138. Information requested from other supervisory authorities.
Article 139. Cooperation with the supervisory authorities of credit institutions and investment firms.
Section 3. Monitoring Levels.
Article 140. Ultimate parent entity in the European Union.
Article 141. National subgroup of insurance or reinsurance entities.
Article 142. Sub-group of entities comprising national sub-groups of several Member States.
Chapter III. Group financial situation.
Section 1. Group Solvency.
Article 143. Monitoring of group solvency.
Article 144. Report on the financial and solvency situation at the group level.
Article 145. Calculation of the solvency at the group level of participating entities.
Article 146. Calculation of the solvency of the consolidated group: method based on accounting consolidation.
Article 147. Consolidated group internal model and the group's insurance and reinsurance entities.
Article 148. Requirement of additional consolidated group Solvency Capital Requirement.
Article 149. Method of deduction and aggregation.
Article 150. Group regime with centralized risk management.
Section 2. Risk Concentration and Intragroup Operations.
Article 151. Supervision of the concentration of risk and intra-group transactions.
Section 3. Risk Management and Internal Control.
Article 152. Monitoring the group governance system.
Section 4. Incompliance with group solvency.
Article 153. Measures to address non-compliances.
Chapter IV. Groups with parent entities outside the European Union.
Article 154. Verification of equivalence.
Title VI. Situations of financial deterioration. Special control measures.
Chapter I. Financial deterioration situations.
Article 155. Financial deterioration of insurance and reinsurance entities.
Article 156. Non-compliance with the Solvency Capital Requirement.
Article 157. Non-compliance with the Minimum Capital Requirement.
Article 158. Plan content.
Chapter II. Special control measures.
Article 159. Situations that result in the adoption of special control measures.
Article 160. Special control measures that can be taken.
Article 161. Additional special control measures.
Article 162. Collaboration of the Insurance Compensation Consortium in the implementation of the special control measures adopted.
Article 163. Intervention by the insurer.
Article 164. Procedure for the adoption of special control measures.
Article 165. Temporary replacement of the administrative organs.
Article 166. Effects of the special control measures in other Member States.
Article 167. Measures taken with regard to insurance companies domiciled in other Member States.
Article 168. Consign procedures.
Title VII. Revocation, dissolution and liquidation.
Chapter I. Revocation of administrative authorization.
Article 169. Causes of revocation and its effects.
Article 170. Revocation of administrative authorisation to insurance companies domiciled in other Member States.
Article 171. Revocation of the administrative authorisation of branches of entities domiciled in third countries.
Chapter II. Dissolution and liquidation of insurance and reinsurance entities.
Section 1. Dissolution.
Article 172. Causes of dissolution.
Article 173. Dissolution agreement.
Article 174. Administrative dissolution.
Section 2. Clearance.
Article 175. General settlement rules.
Article 176. Effects on other Member States of the liquidation of Spanish entities.
Article 177. Effects in Spain of the liquidation of insurance companies domiciled in other Member States and operating in Spain under the right of establishment or freedom to provide services.
Article 178. Supervision of settlement.
Article 179. Protection of credit for insurance contracts.
Article 180. Legal status of liquidators.
Article 181. Settlement process.
Article 182. Effects on shares against insurance institutions in liquidation.
Section 3. Liquidation by the Insurance Compensation Consortium.
Article 183. Performance of the Insurance Compensation Consortium in the liquidation of insurance and reinsurance entities.
Article 184. Substantive general rules.
Article 185. General rules of procedure.
Article 186. Purchase of credits from resources of the Insurance Compensation Consortium.
Article 187. Payments from the entity's resources.
Article 188. General meeting of creditors.
Article 189. Performance of the Insurance Compensation Consortium in the procedures conformed.
Title VIII. Infringements and penalties.
Chapter I. Infrastructures.
Article 190. Infringing subjects.
Article 191. Liability of members, liquidators or management and management positions.
Article 192. Sanctioning powers in respect of insurance companies domiciled in other Member States.
Article 193. Classes of violations.
Article 194. Very serious infringements.
Article 195. Serious infringements.
Article 196. Minor infractions.
Article 197. Limitation of violations.
Chapter II. Penalties.
Article 198. Administrative penalties for entities for very serious infringements.
Article 199. Administrative penalties for entities for serious infringements.
Article 200. Administrative penalties for entities for minor infringements.
Article 201. Liability in case of merger, global transfer of assets and liabilities or excision.
Article 202. Penalties for very serious violations committed by members, liquidators, by whom, under any title, they exercise the effective direction and by whom they perform the functions that make up the system of government.
Article 203. Penalties for serious violations committed by members, liquidators, by whom, under any title, they exercise the effective direction and by whom they perform the functions that make up the system of government.
Article 204. Penalties for minor infractions committed by members, liquidators, by whom, under any title, they exercise the effective direction and by whom they perform the functions that make up the system of government.
Article 205. Criteria for the graduation of sanctions.
Article 206. Measures inherent in the imposition of administrative sanctions.
Article 207. Concurrency of administrative procedures and criminal proceedings.
Article 208. Exercise of activities and use of names reserved for insurance and reinsurance entities.
Article 209. Prescription of penalties.
Chapter III. Sanctioning procedure.
Article 210. Regulation of the sanctioning procedure.
Article 211. Public complaint.
Article 212. Administrative powers.
Article 213. Deadlines.
Additional disposition first. Regime applicable to European Economic Area States that are not part of the European Union.
Additional provision second. Establishment and information on compulsory insurance.
Additional provision third. Validity of administrative authorisation throughout the European Union.
Additional provision fourth. Validity of the authorisations for the extension of benefits granted to social security mutual societies.
Additional provision fifth. Information to the European Commission and the European Insurance and Occupational Pensions Authority on difficulties for Spanish insurance companies or reinsurers.
Additional provision sixth. Special purpose entities.
Additional provision seventh. Review of amounts expressed in euros.
Additional disposition octave. Obligations of the auditors of the insurance and reinsurance entities.
Additional provision ninth. Insurance actuaries.
Additional provision 10th. Insurance experts, Averas Commissioners and Avert Liquidators.
Additional provision eleventh. Concerts of insurance entities with agencies of the Social Security Administration.
Additional disposition twelfth. Communications between supervisors in the field of sanctions.
Additional disposition thirteenth. Caution insurance in favor of Public Administrations.
Additional disposition fourteenth. Additional reporting obligations of insurance entities operating in the fire and natural elements branch.
Additional provision 15th. Technical bases and calibration of death insurance risks.
Additional provision sixteenth. Progressive introduction of the authorisations established by this Law and other measures to adapt to Solvency II.
Additional 17th disposition. Mandatory communication through electronic means.
18th additional disposition. Arrangements for the calculation of technical provisions for accounting purposes.
Additional 19th disposition. Normative emissions.
320th additional disposition. Reallocation of resources.
First transient disposition. Insurance mutual scheme, social forecast mutual societies and cooperatives at variable premium.
Second transient disposition. Transitional arrangements for adaptation to minimum amounts of social capital and mutual fund.
Transitional provision third. Administrative procedures in progress.
Transitional disposition fourth. Transitional arrangements for the conditions for the exercise of social security mutual societies which have not obtained administrative authorisation for the extension of benefits.
Transient disposition fifth. Regime of certain insurance operations carried out by social security mutual societies under the recast of the Law on the Management and Supervision of Private Insurance, approved by the Royal Legislative Decree 6/2004, of 29 of October. Exception of limits to benefits in the form of capital.
Transitional disposition sixth. Auxiliary advisers registered as of 1 January 2016.
Transitional disposition seventh. Regime of the social benefits authorized to the social welfare mutual societies under the recast of the Law on the ordination and supervision of private insurance, approved by the Royal Legislative Decree 6/2004, of 29 of October.
Transient disposition octave. Transitional arrangements for the reinsurer activity of the associations of social security mutual societies.
transient disposition ninth. Mandatory Minimum Capital Transient Regime.
Transient disposition tenth. Scope of application of the special solvency regime.
Transient disposition eleventh. Insurance and reinsurance entities that as of January 1, 2016 do not subscribe to new contracts.
Transient Disposition twelfth. Temporary validity.
transient disposition thirteenth. Transient regime of modifications introduced in the Insurance Contract Act through the final disposition of this Act.
Repeal provision.
Final disposition first. Amendment of Law 50/1980, of October 8, of Insurance Contract.
Final disposition second. Amendment of Law 13/1996, of December 30, of Fiscal, Administrative and Social Order Measures.
Final disposition third. Amendment of Law 38/1999, of 5 November, of Ordination of Building.
Final disposition fourth. Amendment of the recast of the Law on the Regulation of Pension Plans and Funds, approved by the Royal Legislative Decree 1/2002 of 29 November.
Final disposition fifth. Amendment of Law 22/2003, dated July 9, Bankruptcy.
Final disposition sixth. Amendment of the recast text of the Local Law Regulatory Law, approved by the Royal Legislative Decree of 5 March.
Final disposition seventh. Modification of the recast text of the Non-Resident Income Tax Act approved by Royal Legislative Decree 5/2004, of March 5.
Final disposition octave. Amendment of the recast text of the Legal Statute of the Insurance Compensation Consortium, approved by the Royal Legislative Decree 7/2004 of 29 October.
Final disposition ninth. Amendment of Royal Legislative Decree 8/2004 of 29 October, approving the recast of the Law on Civil and Safe Liability in the Movement of Motor Vehicles.
Final disposition tenth. Amendment of Law 26/2006, of July 17, of Mediation of Private Insurance and Reinsurance.
Final disposition eleventh. Amendment of the Law 35/2006 of 28 November of the Tax on the Income of the Physical Persons and of the partial modification of the laws of the Taxes on Societies, on the Income of Non-Residents and on the Heritage.
Final disposition twelfth. Amendment of Law 4/2014, of April 1, Basic of the Official Chambers of Commerce, Industry, Services and Navigation.
Final disposition thirteenth. Amendment of Law 27/2014 of 27 November on Corporate Tax.
Final disposition fourteenth. Competence title.
Final disposition fifteenth. Incorporation of European Union law.
Final disposition sixteenth. Rules applicable to the procedures covered by this Act.
Final disposition seventeenth. Regulatory power.
18th final disposition. Transitional measure on interest rates without risk.
Nineteenth final disposition. Transitional measure on technical provisions.
Final disposition 20th. Other transitional measures.
Final disposition twenty-first. Entry into effect.
Attachment. Insurance classes.
PREAMBLE
I
The essential role in the economy that the financial sector plays, and in particular the insurance sector, has historically justified greater public regulation and intervention than in other sectors. Since the Law of 14 May 1908, which began in Spain the organisation of private insurance, this regulation has historically been characterised by its role as the policyholders, policyholders, beneficiaries and third parties affected by the private insurance. The insurance activity involves the exchange of a present and certain benefit, the premium, for a future and uncertain benefit, the compensation. This situation requires ensuring that, where the claim for compensation is eventually incurred, the insurance undertaking is in a position to be able to meet its obligation. This justifies the fact that the management and supervision of insurance institutions by public authorities is a matter of public interest, in order to verify that they maintain a sufficient solvency situation to enable them to fulfil their social object.
The recused text of the Law on the Management and Supervision of Private Insurance, approved by the Royal Legislative Decree 6/2004, of 29 October, until now in force, integrated in an orderly and harmonised way in a single text provisions contained in Law 30/1995 of 8 November 1995 on the Management and Supervision of Private Insurance and the reforms which were subsequently introduced into that rule, which are motivated by the incorporation of Community law rules; either because of the need to adapt it to the constant evolution of the insurance activity.
In turn, the recast text has been modified by successive laws. In particular, and in principle, by Law 5/2005 of 22 April of the supervision of financial conglomerates and amending other laws of the financial sector, by Law 13/2007 of 2 July on the supervision of the reinsurance; and by Law 5/2009 of 29 June, on the reform of the regime of significant shareholdings in investment firms, credit institutions and insurance companies.
Finally, mention should be made of the modifications made by the final provision of the 14th of Law 2/2011 of 4 March of Sustainable Economy, which continue the line of development and consolidation of the private insurance.
The need for the incorporation of Community insurance law and the regulatory adaptation to the development of the insurance sector are also the main reason for this Law, which includes those provisions of the Directive 2009 /138/EC of the European Parliament and of the Council of 25 November 2009 on life assurance, access to insurance and reinsurance activities and their financial year (hereinafter referred to as Solvency II Directive) which require the incorporation of a legal status rule, as these are important changes in the activity monitoring scheme insurer. This Directive has been fundamentally amended by Directive 2014 /51/EU of the European Parliament and of the Council of 16 April 2014 amending Directives 2003 /71/EC and 2009 /138/EC and Regulations (EC) No 1060/2009 (EU) No 1094/2010 and (EU) No 1095/2010 with regard to the powers of the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority) (Omnibus II Directive).
The magnitude of all these changes has advised to replace the recast text in force with a new law integrating, similar to the recasting of Community legislation carried out by the Solvency II Directive, the provisions that remain in force, the new solvency system and other rules that have been deemed necessary to introduce, taking into account the evolution of the insurance market.
Now, the transposition of the Directive does not end in the Law, as some of its provisions will be incorporated into the Spanish legislation through a regulation, in which some provisions will also be developed. contained in this Law, without prejudice to the implementing measures that the European Commission has issued.
II
The Solvency II Directive represents a significant harmonisation exercise which aims to facilitate the access and exercise of the insurance and reinsurance activity in the European Union by eliminating the most significant differences. (a) important among the laws of the Member States and, therefore, the establishment of a legal framework within which insurance and reinsurance entities may operate in a single internal market.
The Solvency II Directive articulates a concept of the solvency of insurance and reinsurance entities based on three mutually reinforcing pillars. The first, consisting of uniform rules on capital requirements determined in accordance with the risks assumed by the institutions, in line with the developments in the management of risks and with recent developments in other financial sectors. A risk-based approach is thus adopted for the European insurance sector by introducing specific rules on economic capital. The second pillar is integrated by a new supervisory system with the aim of promoting the improvement of the internal management of risks by institutions. The third relates to the requirements of information and transparency towards the market on the key aspects of the risks assumed by the institutions and their management.
In addition to the introduction of the new solvency system based on the risk and changes that this requires in the form of management of the institutions and in the performance of the supervisory authorities, the Solvency II Directive (a) to consolidate, by recasting, the rest of the European order in the field of private insurance, with the exception of motor insurance, incorporating the contents of the directives which had already been transposed into their time to Spanish insurance law, for example, Directive 2001 /17/EC of the European Parliament European Council of 19 March 2001 on the reorganisation and liquidation of insurance companies.
The scheme has been completed with regulatory developments and implementing measures arising from the new supervisory structure designed in this field in the European Union by the establishment of the European Insurance Authority. and Retirement Pensions, by means of Regulation (EC) No 1094/2010 of 24 November 2010 of the European Parliament and of the Council establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), Decision 716 /2009/EC and repealing Commission Decision 2009 /79/EC, which it confers on it important coordination and decision-making powers in the area of supervision and management of insurance and reinsurance, achieving greater regulatory harmonisation and better international and cross-sectoral coordination.
The provisions contained in this Law and in the implementing regulation, as a result of the transposition of the Solvency II Directive, must be integrated with regulatory developments and enforcement measures. European Commission and the European Insurance and Occupational Pensions Authority (EIOPA) in a wide range of issues such as the valuation of assets and liabilities, technical provisions, own funds, the calculation of the solvency capital mandatory, internal models, the minimum capital requirement, the investment rules, the system of government, additional capital, information for supervisory purposes, transparency of supervisory authority, solvency of groups of entities as well as the determination of the equivalence of third country schemes with the provisions of the Solvency II Directive.
III
The Law is structured in a preliminary title and eight titles, twenty additional provisions, thirteen transitional provisions, a derogation provision, twenty-one final provisions and an annex.
The preliminary title sets its object, scope, and applicable definitions for purposes of this Act. It is identified as national supervisory authority to the Directorate General for Insurance and Pension Funds, without prejudice to the supervisory and regulatory powers that are expressly attributed to the Minister of Economy and Competitiveness in this Law. and in the rest of the legal system and the powers which, where appropriate, correspond to the Autonomous Communities.
Title I of the Law refers to the distribution of competences between the State and the Autonomous Communities. Certain tasks are set out which correspond to the Minister of Economy and Competitiveness and the Directorate-General for Insurance and Pension Funds is recognized as the regulatory capacity to issue mandatory circulars in the field of the supervision of insurance and reinsurance.
In order to achieve the objectives of better protection of policyholders, policyholders and beneficiaries, and under the terms of Article 149.1.6., 11. and 13. of the Constitution, this Law contains the basis for the supervision of insurance and private reinsurance. This requires a certain uniformity of the regulatory rules for the supervision of the insurance activity in order to facilitate the relationship of certain Spanish insurance companies with others, with those established in the European Union and all of them with the international markets. Therefore, given the financial importance of the insurance sector in the economy, the Autonomous Communities which have assumed powers in the field of private insurance and reinsurance supervision must cooperate more closely with each other and with the General Administration of the State.
IV
Title II of the Law regulates the conditions for obtaining administrative authorization as a prerequisite for access to the exercise of the insurance or reinsurance activity in terms similar to those of its legislative precedent.
It also regulates the legal status of insurance mutuals, insurance cooperatives and social welfare mutual societies. However, for these entities the regime contained in the recast text of the Law on the Management and Supervision of Private Insurance, approved by Royal Decree-Law 6/2004 of 29 October, is still in force until a date has been reached. specific regulation of mutual and, in particular, their legal system of dissolution, transformation, merger, division and global transfer of assets and liabilities.
In relation to the conditions of exercise, this Law regulates in Title III the requirement of an effective system of government of the entities. This is one of the novelties of the Solvency II Directive, which implies recognition that certain risks can only be taken into account through the requirements of the government of the institutions and not through the requirements of the quantitative. The governance system includes the core functions of risk management, compliance, internal audit and actuarial. This enumeration of functions and their regulation, which will be developed in more detail, regulations, does not prevent each entity freely deciding how to organize them or decide to articulate other additional functions.
Within the management of its risks, all insurance and reinsurance entities must assume as usual practice, integrating it in their business strategy, the internal and periodic evaluation of their global needs solvency on the basis of your specific risk profile. In addition, for the purpose of transparency, insurers and reinsurers should make known, by making them available to the public at least once a year, the essential information on their financial and solvency situation.
V
The assessment of the financial situation of insurance and reinsurance entities must be based on sound economic principles, incorporating in the process the information provided by the financial markets, as well as the available data on the risks assumed. Under this approach, capital requirements should be covered by own funds, which are to be classified according to quality, safety and availability criteria.
The Solvency Capital Requirement shall be calibrated in such a way as to ensure that all quantifiable risks to which an insurance or reinsurance undertaking is exposed are taken into account and shall cover existing activities and the new activities expected to be performed within the next twelve months. In relation to the existing activity, it should cover only unexpected losses. The Solvency Capital Requirement shall be equal to the at-risk value of the own funds of an insurance or reinsurance undertaking, with a confidence level of 99.5% over a one-year time horizon.
In the scope of Solvency II solvency capital requirements should entail two levels of demand. One, the Solvency Capital Requirement, variable according to the risk assumed by the institution and based on a prospective calculation; the other, the Minimum Capital Requirement, configured as a minimum level of security below which they should never be to lower the financial resources. Both capital requirements allow the gradual intervention of the supervisor to be defined in order to achieve a uniform level of protection for policyholders, policyholders and beneficiaries. The normal situation is fulfilled when the institution reaches the Solvency Capital Requirement with own funds. Failure to achieve mandatory minimum capital will involve expulsion from the market. For the inadequacies of the Solvency Capital Requirement, the Act establishes an appropriate scale and progressive intensity of intervention by the supervisory authority.
For the calculation of the Solvency Capital Requirement, a standard formula is established that takes a modular approach, in which the individual exposure to each category of risk is assessed first and then the the resulting values taking into account, where appropriate, the effect of the existing correlations between the different risk modules and simplified methods for their calculation. The standard formula for calculating the Solvency Capital Requirement is intended to reflect the risk profile of most insurance and reinsurance undertakings. However, it is possible that in some cases the standardised approach does not adequately reflect the very specific risk profile of a company. For these cases, it is possible to use, after administrative authorization, internal, total or partial models.
Additionally, the regulations provide for other administrative authorization scenarios such as the use of specific parameters, complementary own funds, and matching adjustments in the calculation of technical provision. All this implies the need to strengthen the available resources of the national supervisory authority, the Directorate-General for Insurance and Pension Funds.
A special solvency regime is envisaged for entities that do not exceed the thresholds that are regulated. These entities are excluded from the general Solvency II regime, and therefore certain particularities apply to them in terms of the solvency requirements, the system of governance and the reporting requirements to the supervisor to be developed by regulatory action. In contrast to the entities under the general scheme, the entities that are eligible for the special solvency regime can only act within the national territory. However, these entities may voluntarily apply for the general scheme. This special solvency regime can also be welcomed by other insurance companies with very specific characteristics.
Among the conditions of exercise, various precepts concerning the market conduct to be respected by the insurance companies are collected. Among them are those who discipline premium rates, technical bases and services or departments of customer service. In the context of the single insurance market, this Act ensures that insurance offered by entities from other Member States can be marketed in Spain, provided that the statutory provisions of general interest are complied with.
The application of this Law will take into account the principle of proportionality, which will graduate the establishment of requirements and their complexity, taking into account the risk profile of the entities and in particular nature, scale and the complexity of the insurance or reinsurance operations performed by the institutions, as well as the risks inherent in their business model.
VI
In order that the ultimate goal of protecting policyholders, policyholders and beneficiaries can be effectively materialized, the legal provisions on the performance of insurance and reinsurance entities should be properly complement each other with effective monitoring. Thus, in Title IV, the set of powers and powers to allow the Spanish supervisory authority to ensure the orderly exercise of the activity, including outsourced functions or activities, is regulated. Supervision by inspection is regulated in particular.
In order to ensure the effectiveness of supervision, the measures taken should be proportionate to the nature, complexity and extent of the risks inherent in the business of insurance or reinsurance entities.
Individual insurers and reinsurers are considered to be the essential element of supervision. But unlike the previous legislation, this Act gives a more substantive character, as supervised subjects, to groups of insurers and reinsurers, regulated in Title V.
An important innovation in this area is the possibility of creating groups without capital linking, in particular, insurance mutual groups.
The supervision of the group shall include the assessment of its solvency, risk concentrations and intra-group transactions. Insurance and reinsurance entities belonging to a group must also have an effective system of government that must be subject to supervision.
The Law sets out the assumptions in which it will be up to the Directorate General of Insurance and Pension Funds to be the supervisor of an international group, as well as the powers of coordination and decision that correspond to it in this case. Colleges of supervisors are also regulated, including mechanisms for cooperation, exchange of information and consultation between supervisory authorities.
In any case, both for the supervision of individual entities and groups of entities, the Act assumes as a guiding principle the convergence of European supervisory activity in supervisory instruments and practices, giving the European Insurance and Occupational Pensions Authority (EIOPA) an important role in its articulation.
VII
Title VI of the Law sets out the mechanisms available to the supervisory authority to deal with situations of financial deterioration of institutions, including special control measures, Title VII of the revocation, dissolution and liquidation and, finally, Title VIII of the regime of infringements and penalties.
In the case of liquidation of insurance institutions it is clarified that the rules are imperative, the concept of creditor is specified by contract of insurance with special privilege and the mutual societies and the cooperatives are recognized the same rights as for the shareholders of the capital companies, in particular the right of information and participation in the assets resulting from the liquidation.
The Law resolves the possible confluence of the special control measures with the procedures, establishing that the entities subject to the first ones will not be able to request a judicial declaration of contest. Additionally, the judge, before admitting the contest, has to request a report from the General Directorate of Insurance and Pension Funds on the situation of the insurance institution.
In the liquidations by the Insurance Compensation Consortium, certain modifications are made regarding the purchase of credits from the same resources, especially in relation to the labor credits that may be anticipate, also regulating their participation in the procedures.
In relation to the regime of infringements and sanctions, the types of offenders are adjusted to the new requirements for access and exercise to the activity, the limits of the penalties are set more precisely in the form of a fine and incorporate details on the sanctioning procedure.
VIII
By means of the additional provisions, it is established, among other matters, that compulsory insurance must be fixed by a rule of law. The possibility for entities with special tasks to request administrative authorisation for the exercise of their activities in Spain is collected. The obligations of the auditors in relation to the insurance and reinsurance entities are fixed. These include rules relating to professions related to insurance activities such as insurance actuaries and insurance experts, breakdown commissioners and breakdown liquidators. The requirements are laid down to ensure that the insurance is admissible as a guarantee to the public authorities. It also lays down the obligation of insurance undertakings operating in the field of fire and natural elements to provide certain information for the purpose of facilitating the settlement and collection of charges for the maintenance of the fire prevention and extinction service and special contributions for the establishment or extension of fire extinguishing services. The simplified regime applicable to death insurance in respect of technical bases, provisions and capital of compulsory solvency is referred to regulatory regulation. The date from which the insurance institutions may submit to the Directorate-General for Insurance and Pension Funds applications which on certain aspects require approval by the supervisor, and the powers of the attributed to the General Directorate of Insurance and Pension Funds related to the supervision of groups of entities. Two new information functions are entrusted to the Insurance Compensation Consortium: on the one hand, the management of the new compulsory insurance register; on the other hand, the collection and supply of the information relating to the insurance the fire branch for the purpose of improving the settlement and collection of the fees for the provision of the fire extinguishing service and special contributions for the establishment or extension of the fire extinguishing service. Finally, it is established that the obligation to communicate with the Directorate-General for Insurance and Pension Funds through electronic means can be established by means of a circular.
As for the final provisions, modifications are made, among others, to the Insurance Contract Act to specify that, in personal insurance, the insured or taker has no obligation to communicate the variation of the circumstances relating to the health of the insured person, which under no circumstances shall be considered to be an aggravation of the risk. The insurance of death and dependency is regulated for the first time in this standard and the free choice of service provider in the insurance of deaths, health care and dependency is strengthened.
Law 13/1996, of December 30, of Fiscal, Administrative and Social Order Measures, and Law 35/2006, of 28 November, of the Tax on the Income of Physical Persons and the partial modification of laws are amended. of the Tax on Companies, on the Income of Non-Residents and on the Heritage, in order to bring all of them into line with the judgment of the Court of Justice of the European Union of 11 December 2014 in Case C-678/11, which has declared contrary to European legislation the obligation to designate a representative in Spain for the purposes of Tax on pension funds domiciled in another Member State of the European Union developing in Spain employment pension schemes subject to Spanish legislation, and of insurance companies domiciled in another Member State who operate in Spain under the freedom to provide services.
It is introduced in the Law on the Management of Edification, as an alternative to the compulsory subscription of insurance, obtaining a financial guarantee that allows to cover the same risk. In addition, greater legal certainty is given to the position of the acquirer of housing vis-à-vis the promoter, with the current regime based on a dual system of policies (collective policies and individual certificates of (c) insurance. Modifications are also made regarding the perception of amounts on account of the price during the construction of the Law on the Management of Building.
The recast text of the Law on the Regulation of Pension Plans and Funds is reformed to improve the regulation of open pension funds, expanding their operational possibilities, in order to promote economies of scale and the diversification of investment policies and investment management policies. The regulation of the control commission of the open fund of employment is addressed, and finally it is established that in the Mutual Social Welfare Mutual System that act as an alternative system to the high in the Special Regime of the Social Security of the Workers on account of Own or Self-employed persons, the economic rights of the products or insurance used for such a function in the expected liquidity assumptions shall not be effective.
As far as the Insurance Compensation Consortium is concerned, modifications are introduced that affect, in the first place, its Legal Statute. It highlights the extension of the surcharge for extraordinary risk insurance to compulsory civil liability insurance for motor vehicles, which will give rise to the corresponding coverage. The Consortium is also enabled to inform creditors on an insurance contract in connection with the winding-up proceedings of insurance companies domiciled in another Member State of the European Union in so far as it concerns only the insurance contracts which they would have concluded in Spain. In the case of the liquidation of insurance entities by the Insurance Compensation Consortium, modifications are made to the substantive and procedural rules to strengthen the administrative settlement mechanisms for the benefit of the insurance companies. of the creditors on an insurance contract. Finally, the regulation of the performance of the Consortium in the procedures conformed is updated, in order to accompany it to the modifications made in Law 22/2003, of July 9, Bankruptcy. The obligation to adhere to the direct compensation agreements regulated by the Royal Decree of Law 8/2004 of 29 October, approving the recast of the Law on Civil and Safe Liability in the movement of motor vehicles, for material damage. In order to speed up assistance to those injured in traffic, insurance companies will be able to adhere to sectoral health care agreements for traffic injuries as well as direct compensation agreements for personal injury.
Law 26/2006 of July 17 on the mediation of private insurance and reinsurance is amended. The register of auxiliary advisers is deleted. The terminology of the auxiliary is unificated, becoming known as "contributor", eliminating the difference between auxiliary and auxiliary auxiliary and establishing that the functions of the collaborator, as well as the fact that he/she advises or not, are determined in the contract between mediator and his partner. On the other hand, the corridor, in order to carry out an objective analysis, must present a sufficient number of contracts suitable for each operation.
Finally, reform of Law 4/2014, of April 1, Basic of the Official Chambers of Commerce, Industry, Services and Navigation, to regulate with greater amplitude the assumptions of impossibility of normal functioning of the Chambers as a result of a financial imbalance.
PRELIMINARY TITLE
General provisions
CHAPTER I
Object and Scope
Article 1. Purpose and purpose of the Act.
This Law aims to regulate and supervise private insurance and reinsurance activities, including the conditions for access and exercise and the solvency, consolidation and liquidation of institutions. insurers and reinsurers, with the main purpose of protecting the rights of policyholders, policyholders and beneficiaries, as well as to promote the transparency and proper development of the insurance business.
Article 2. Application subjective scope.
They are subject to the precepts of this Law:
(a) Insurance and reinsurance entities with registered offices in Spain, as well as branches established in Spain of insurance companies and reinsurers domiciled in third countries.
b) Groups of insurance and reinsurance entities.
(c) Natural or legal persons who, under any title, perform management or management positions of the insurance and reinsurance entities.
(d) Professionals and entities carrying out any of the functions provided for in this Law or in their complementary development provisions.
e) The liquidators of insurance and reinsurance entities.
(f) organisations incorporated with a stay-at-home order for the distribution of risk coverage or the provision to insurance and reinsurance entities of common services related to the insurance business or reinsurer, whatever its nature and legal form.
g) Other persons for whom a prohibition or mandate is established in this Law.
Article 3. Objective scope of application.
1. They are subject to the provisions of this Law:
(a) The activities of direct life insurance and direct insurance other than life insurance.
b) Reinsurance activities.
(c) The preparatory or complementary operations of the insurance companies that are engaged in by insurance and reinsurance entities.
d) Damage prevention activities linked to the insurance activity.
e) Any other activities when expressly set forth in a rule with a range of law.
2. The insurance and reinsurance activity shall be in accordance with the provisions of this Law:
(a) When performed by the entities, groups and persons referred to in Article 2.
(b) Where it is carried out in Spain by insurers and reinsurers domiciled in another Member State of the European Union (hereinafter another Member State).
Article 4. Activities excluded.
1. The general scheme and the special schemes which make up the compulsory social security system are expressly excluded from the scope of this Law.
2. The following operations and activities are also not subject to this Law:
(a) Export credit insurance on behalf of or with the State guarantee, or when the State is the insurer.
(b) Reinsurance carried out or fully guaranteed by the government of a Member State, where on grounds of public interest it acts as a reinsurer of last resort, including those circumstances in which it is action is required by a situation on the market such that it is not possible to obtain in the appropriate coverage.
c) The management of pension funds, governed by the recast of the Law on the regulation of pension plans and funds, approved by the Royal Legislative Decree 1/2002 of 29 November, which will be reserved for the Pension fund management entities.
(d) Those carried out by organisations without legal personality having as their object the mutual guarantee of their members, without giving rise to the payment of premiums or the establishment of technical provisions.
e) Those carried out by the forecasting and assistance agencies which grant variable benefits according to the available resources and which require their unit-holders to make a flat-rate contribution.
(f) Those made by bodies other than insurance undertakings whose purpose is to supply workers, on behalf of an employed or self-employed person, grouped within the framework of an undertaking or group of undertakings or of a sector professional or interprofessional, benefits in the event of death, in the event of life or in the event of a cessation or reduction of activities, regardless of whether or not the commitments resulting from these operations are covered in full and in all time for mathematical provisions.
3. Securities I to V shall not be subject to the insurance and reinsurance entities whose liquidation has been entrusted to the Insurance Compensation Consortium.
Article 5. Operations prohibited to insurance entities.
1. The following transactions are prohibited to insurance entities:
(a) Those without actuarial technical basis.
(b) Any other business activity and the provision of guarantees other than the insurance business itself. Cooperation with non-insurance entities for the distribution of the services produced by them shall not be understood to be included in such prohibition.
c) Private insurance mediation activities defined in your specific regulations.
2. The performance by an insurance undertaking of the activities provided for in this Article shall determine its full nullity.
CHAPTER II
Definitions
Article 6. Entities.
For the purposes of this Law and other regulatory provisions for the supervision and procurement of private insurance, the following definitions shall apply:
1. Insurance institution: An entity authorised to perform, in accordance with the provisions of this Law or the legislation of another Member State, direct life insurance or direct insurance activities other than life insurance.
2. Captive insurance institution: Insurance entity owned by a non-financial institution or a financial institution other than an insurance or reinsurance undertaking or part of a group of insurance or reinsurance entities defined in the Article 131.1.f), which aims to provide insurance cover exclusively for the risks of the entity or entities to which it belongs or of one or more entities of the group of which it is a party.
3. Insurance institution domiciled in a third country: An insurance undertaking which, if it had its registered office in any Member State, would be obliged, in accordance with the provisions of that State, to obtain an authorisation to carry out the activity insurer.
4. Reinsurer entity: An entity that has received authorisation in accordance with the provisions of this Act, or in accordance with the law of another Member State, for the conduct of reinsurance activities.
5. Captive reinsurance entity: Reinsurance entity owned by a non-financial institution, or a financial institution other than an insurance or reinsurance undertaking or part of a group of insurance or reinsurance entities, defined in Article 131.1.f), which aims to provide reinsurance cover exclusively for the risks of the entity or entities to which it belongs or of one or more entities of the group of which it is a party.
6. Reinsurer entity domiciled in a third country: An entity which, if it had its registered office in a Member State, would be obliged, in accordance with the provisions of that State, to obtain an authorisation to carry out the activity reinsurer.
7. Reinsurance: The activity consisting in the acceptance of risks transferred by an insurance undertaking or by a reinsurer entity, including insurance institutions or reinsurers domiciled in third countries.
8. Limited reinsurance: Reinsurance in which the maximum potential for explicit loss, expressed in terms of maximum economic risk transferred, arising from both a significant subscription risk and the transfer of a temporary risk, exceeds the premium for the entire duration of the contract for a limited but significant amount, together with at least one of the following characteristics:
a) explicit consideration and material of the time value of money.
(b) Contract provisions that moderate the balance of the economic experience between the parties over time, in order to achieve the planned transfer of risk.
9. Financial institution, any of the following:
(a) A credit institution, a financial undertaking or an ancillary banking service undertaking, as regulated in the rules of credit institutions.
(b) An insurance institution, a reinsurer entity, or an insurance holding company as defined in Article 131.1.i).
(c) An investment firm or a financial company, as regulated in the rules of investment services.
(d) A mixed financial holding company pursuant to Article 2.7 of Law 5/2005 of 22 April of the supervision of financial conglomerates and amending other laws of the financial sector.
10. Special purpose entity: Entity, whether or not endowed with legal personality, other than an existing insurer or reinsurer, taking risks from insurers or reinsurers and fully funding their exposure to such risks through a debt issue or any other financing mechanism in which the payment entitlements of the providers of such debt or other financing mechanism are subordinated to the reinsurance obligations of that institution.
11. Authorised central counterparty: A central counterparty which has been authorised by the competent authority of the Member State in which it is established or, when established in a third country, if it has been recognised by the Authority European Securities and Markets (ESMA).
12. External credit rating agency: A credit rating agency recognised, certified and registered as such or a central bank issuing credit ratings.
13. National Office: Professional organization established in accordance with Recommendation No 5 adopted on 25 January 1949 by the Subcommittee on Road Transport of the Internal Transport Committee of the Economic Commission for Europe of the United Nations Organization, and which groups the insurance entities which have obtained in a State authorization to operate in the field of civil liability in motor vehicles.
In Spain, the Spanish Office of Automobile Insurers (OFESAUTO) is a national office.
14. National guarantee fund: a body set up by each Member State, in accordance with its own laws, regulations and administrative provisions, which has the task of repairing, at least up to the limits of the insurance obligation, the material or body damage caused by an unidentified vehicle or by which the insurance obligation has not been satisfied.
In Spain, the Insurance Compensation Consortium is a national guarantee fund.
Article 7. National supervisory authority.
For the purposes of this Law and other regulatory provisions for the supervision and procurement of private insurance, the supervisory authority shall be understood to be the national authority empowered to legislation of your State to supervise insurance and reinsurance entities.
The national supervisory authority, which is empowered to supervise insurance and reinsurance entities in the terms of this Law, is the General Directorate of Insurance and Pension Funds, without prejudice to the powers conferred on it. directly to the Minister for Economic Affairs and Competitiveness, and the powers which, where appropriate, correspond to the Autonomous Communities.
Article 8. Member State of origin, host Member State and activities under the right of establishment and freedom to provide services.
For the purposes of this Law and other regulatory provisions for the supervision and procurement of private insurance, the following definitions shall apply:
1. Source Member State:
(a) The Member State in which the registered office of the insurance undertaking covering the risk is situated, in insurance other than life insurance, or which contracts the undertaking, in life insurance.
(b) The Member State in which the registered office of the reinsurer is situated, in the case of reinsurance.
2. Host Member State:
(a) The Member State, other than the Member State of origin, where the branch is situated which covers the risk or contracts the undertaking.
(b) The Member State other than the State of origin in which the insurance or reinsurance undertaking provides services; in the case of life insurance, a Member State of provision of services is defined as the one in which the commitment, and in the case of insurance other than the one in which the risk is located.
3. Risk location member state:
(a) The Member State in which the goods are located, where the insurance relates to buildings, or to such buildings and their contents, if the latter is covered by the same insurance policy.
Where insurance relates to movable property located in a building, and for the purposes of legally enforceable taxes and surcharges, the Member State in which the property is situated, even if it and its contents are not are covered by the same insurance policy, with the exception of goods in commercial transit.
(b) The Member State of registration, where insurance relates to vehicles of any kind.
(c) The Member State in which the policyholder has signed the contract, if the duration of the contract is less than or equal to four months and relates to risks that arise during a trip or outside the usual address of the policyholder. insurance, whichever class is affected.
(d) In all cases not expressly referred to in the preceding letters, the holder of the insurance shall have his habitual residence or, if he is a legal person, the person in which his or her registered office is situated or the the branch to which the contract relates.
4. Member State of the undertaking: The Member State in which the policyholder has his habitual residence, if he is a natural person, or his registered office or branch, in the case where the contract relates to the latter, if he is a person legal.
5. Establishment: The registered office or branch of an entity.
6. Branch: Any establishment of an insurance or reinsurance undertaking which is situated in the territory of a Member State other than the Member State of origin.
Any permanent presence of an insurance institution domiciled in another Member State shall be treated as a branch, even if this presence does not take the form of a branch and is exercised through an office run by the institution itself. staff of that or an independent person, but with powers to act permanently on behalf of the insurance institution as a branch would do.
7. Branches of insurance or reinsurance undertakings in third countries: Any permanent presence in the territory of a Member State of an insurance or reinsurance undertaking domiciled outside the European Union, which is authorised and carried out insurance or reinsurance operations in that Member State.
8. Right of establishment scheme: The activity developed in a Member State by a branch established in that of an insurance or reinsurance undertaking domiciled in another Member State.
9. Freedom to provide services: The activity carried out by an insurance or reinsurance undertaking domiciled in a Member State from its registered office, or from a branch of that State in another Member State, covering a risk, by contracting a commitment or carrying out reinsurance activities in a different Member State.
Article 9. Participation or control relationships between entities.
For the purposes of this Law and other provisions governing the supervision and hiring of private insurance, and without prejudice to the provisions of Article 131.1, the following definitions shall apply:
1. Parent entity: The entity that holds or is able to hold, directly or indirectly, the control of another or other entities.
2. Subsidiary entity: The entity that a parent entity holds or is able to hold, directly or indirectly, in the control.
3. Control: The relationship between a parent entity and a subsidiary or a relationship of the same nature between any natural or legal person and an undertaking, in the situations provided for in Article 42 of the Trade Code and in its development provisions.
4. Participation: The possession, directly or through a control link, of a percentage equal to or greater than 20 per 100 of the voting rights or capital of a company.
5. Significant participation in an insurance or reinsurance undertaking: The holding in an insurance or reinsurance undertaking, directly or indirectly, of at least 10 per 100 of the capital or of the voting rights or any other possibility of exercise a significant influence on the management of the entity.
6. Close links: Any relationship between two or more natural or legal persons if they are linked through a participation or through a control link. In addition, the situation in which two or more natural or legal persons, including an insurance or reinsurance undertaking, are permanently linked to the same natural or legal person by a control link.
7. Shares in financial and credit institutions:
(a) the shares held by insurance and reinsurance undertakings in:
1. º credit institutions and financial institutions within the meaning of Article 1 of Law 10/2014 of 26 June 2014 on the management, supervision and solvency of credit institutions;
2. No. Investment services companies within the meaning of Article 62 of Law 24/1988, of July 28, of the Securities Market.
(b) the subordinated claims and instruments referred to in Chapter 4 of Title I of Part II of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements of credit institutions and investment firms, and amending Regulation (EU) No 648/2012, which are held by insurance and reinsurance undertakings in relation to the entities defined in point (a) above, in which they have the right to participations.
Article 10. Regulated markets.
For the purposes of this Act and other regulatory provisions for the supervision and procurement of private insurance, regulated markets shall be understood as:
1. The official Spanish secondary markets as defined in Article 31 of Law 24/1988 of 28 July of the Stock Market and those recognised as regulated markets by the legislation of another Member State.
2. In the case of markets located in a third country, those which satisfy requirements comparable to those of the regulated markets referred to in the preceding paragraph, and in which the negotiated financial instruments have a comparable quality to that of the instruments traded on regulated markets located in the European Union.
Article 11. Great risks.
For the purposes of this Law and other regulatory provisions for the supervision and contracting of private insurance, the following are defined as insurance contracts with great risks:
(a) Rail vehicles, air vehicles, maritime vehicles, lake and river vehicles, goods transported (including luggage and other goods carried), civil liability in air vehicles (including carrier liability) and civil liability for maritime, lake and river vehicles (including the liability of the carrier).
(b) Credit and security when the policyholder and the insured person pursue an industrial, commercial or liberal activity in a professional capacity and the risk relates to such activity.
c) Land vehicles (non-rail), fire and natural elements, other damage to property, civil liability in motor vehicles (including carrier liability), liability General civil and miscellaneous financial losses, provided that the taker exceeds the limits of at least two of the following three criteria:
Balance sheet total: EUR 6,200,000.
Net amount of turnover: 12,800,000 euros.
Average number of employees during exercise: 250 employees.
If the policyholder is part of a group of companies whose consolidated accounts are established in accordance with Articles 42 to 49 of the Trade Code, the criteria mentioned above are apply on the basis of consolidated accounts.
Article 12. Community co-insurance.
For the purposes of this Law and other provisions governing the supervision and contracting of private insurance, the following shall be understood as Community co-insurance operations, which shall meet the following: conditions:
1. Give rise to the coverage of one or more risks that may qualify as high risks.
2. A number of insurance institutions, one of which shall be the opening insurer, shall participate in the risk coverage, in a non-solidarity manner, as a co-insurance company, by means of a single contract, by means of a global premium and same duration.
3. Covering risks located in the European Union.
4. For the purposes of the risk coverage, the opening insurer is enabled to cover the entire risk.
5. At least one of the co-insurance entities is involved in the contract by means of its registered office or a branch established in a Member State other than the state of the insurer.
6. The opening of the business of the insurer is fully the responsibility of the insurer and, in particular, determines the conditions of insurance and charging.
Article 13. Governance and Outsourcing System.
For the purposes of this Law and other regulatory provisions of the supervision of private insurance, the following definitions shall apply:
1. Role: In a governance system the ability of an insurance or reinsurance entity to carry out certain tasks of the entity's government.
2. System of government of the entity: transparent and appropriate organizational structure, with a clear distribution and adequate separation of functions, an effective system to guarantee the transmission of information, that guarantees the sound management and prudent activity and the effective internal control mechanisms of an insurance or reinsurance undertaking, including the following key functions: the risk management function, the compliance verification function, the internal audit function and actuarial function.
3. Outsourcing of functions: Any type of agreement concluded between an insurance or reinsurance undertaking and a third party, whether or not an entity subject to supervision, by virtue of which it is, directly or by subcontracting, carrying out an activity or a function which, in other circumstances, would have been performed by the insurer or reinsurer itself.
Article 14. Risks.
For the purposes of this Law and other regulatory provisions for the supervision and procurement of private insurance, the following definitions shall apply:
1. Risk of subscription: The risk of loss or adverse change in the value of the commitments arising from the insurance activity, due to the inadequacy of the pricing assumptions and the provision of provisions.
2. Market risk: The risk of loss or adverse change in the financial situation resulting, directly or indirectly, from fluctuations in the level and volatility of the market prices of assets, liabilities and instruments financial.
3. Credit risk: The risk of loss or adverse change in the financial situation resulting from fluctuations in the solvency of securities issuers, counterparties and any debtors to which institutions are exposed insurers and reinsurers, in the form of risk of counterparty default, risk of spread or concentration of market risk.
4. Operational Risk: The risk of loss arising from the inadequacy or dysfunction of internal processes, personnel or systems, or external events.
5. Liquidity risk: The risk that insurers and reinsurers cannot make investments and other assets in order to meet their financial obligations at maturity.
6. Risk of concentration: Any exposure to risks that leads to a potential loss of potential sufficient to endanger the solvency or financial situation of insurance and reinsurance entities.
7. Risk mitigation techniques: All that allow insurance and reinsurance entities to transfer part or all of their risks to third parties.
8. Diversification effects: the reduction of the risk exposure of insurance and reinsurance entities and their groups related to the diversification of their activities, resulting from the possibility of offsetting the negative result of a risk with the most favourable outcome of another risk, where there is no correlation between those risks.
9. Probability Distribution Forecast: A mathematical function that assigns to a comprehensive set of mutually exclusive future events a probability of realization.
10. Risk Measure: A mathematical function that assigns a monetary value to a given probability distribution forecast and which grows monotonically with the level of risk exposure underlying that distribution forecast probability.
Article 15. Reorganisation measures and settlement procedures.
For the purposes of this Act, and in other provisions governing the supervision and hiring of private insurance, the following definitions shall apply:
1. Competent authorities: The administrative or judicial authorities of the competent Member States in respect of reorganisation measures or winding-up proceedings.
2. Reorganisation measures: Those involving the performance of the competent authorities are intended to maintain or restore the financial situation of the insurance or reinsurance undertaking and affect the pre-existing rights of third parties. other than the entity itself.
3. Special control measures: Those which, involving the action of the competent authorities, are intended to control and reverse the situation of financial or management deterioration of the institution and are necessary to safeguard the obligations arising from insurance contracts, reinsurance contracts, as well as any other interests of the institution itself which may affect its solvency or viability.
4. Settlement procedure: The collective procedure involving the liquidation of assets and the distribution of the proceeds of the liquidation among creditors, shareholders or partners, as appropriate, and involving some form of action by the administrative or judicial authority, whether or not based on insolvency and having a voluntary or compulsory nature.
5. Provisional administrator: Any person or body appointed by the competent authorities of a Member State to administer the reorganisation measures.
6. Liquidator: Any person or body appointed by the competent authorities or the social bodies of the insurance undertaking to manage the winding-up proceedings.
7. Commitment to insurance contract: Any undertaking which an insurance undertaking contracts with insured persons, policyholders, beneficiaries or injured parties with a right of direct action against the insurance undertaking, and which has its origin in a the insurance contract or any operation provided for in paragraphs 2, 3 and 4 of Annex B (a) of this Law in the area of direct insurance, including those where certain elements of the debt are not yet known.
TITLE I
Monitoring and Competence Bodies
CHAPTER I
Competencies of the General Administration of the State
Article 16. Supervisory powers of the General Administration of the State.
1. The powers of the General Administration of the State in the supervision of insurance and reinsurance entities and the orderly development of insurance and reinsurance markets shall be exercised by the Minister for Economic and Financial Affairs and the General Directorate of Insurance and Pension Funds in the terms set out in this Law and its implementing rules, without prejudice to the functions that correspond to the Autonomous Communities in the field of their competences.
2. With regard to regulation and supervision of private insurance, it is up to the Minister of Economy and Competitiveness to:
a) Authorize access to the insurance and reinsurance activity, and its revocation.
b) Authorise the calculation of the Solvency Capital Requirement using an internal model.
c) Authorizing the constitution, modification, and dissolution of mutual groups.
d) Approve rules on market transparency and protection of the rights of users in the field of insurance.
e) Agree to the administrative dissolution of the insurance and reinsurance entities and, where appropriate, to entrust their liquidation to the Insurance Compensation Consortium.
f) Impose the penalties for very serious violations in the terms laid down in Title VIII.
(g) Authorising portfolio disposals, structural changes and, where appropriate, the temporary groupings and unions of insurance and reinsurance undertakings, as provided for in Chapter VI of Title III, without prejudice to the provided for in Law 15/2007 of 3 July on the Defence of Competition in relation to the control of economic concentrations and the applicable Community provisions.
h) The exercise of those other powers attributed to him by this Law and the rest of the legal order.
Article 17. General Directorate of Insurance and Pension Funds.
1. The Directorate-General for Insurance and Pension Funds shall, as a Spanish supervisory authority, be a party to the European Insurance and Occupational Pensions Authority (EIOPA), in accordance with the provisions of Regulation No 1094/2010 of 24 May 2010. November, the European Parliament and the Council establishing a European Supervisory Authority.
In the exercise of the supervisory functions entrusted by this Law and its implementing rules, the Directorate-General for Insurance and Pension Funds shall analyse and, where appropriate, take into account the guidelines and recommendations emanating from the European Insurance and Occupational Pensions Authority. Where the Directorate-General for Insurance and Pension Funds departs from those guidelines or recommendations, it shall do so by means of a reasoned decision.
2. The Directorate-General for Insurance and Pension Funds may lay down provisions for the development of insurance regulations contained in real decrees or in the orders of the Minister for Economic Affairs and Competitiveness, provided that these rules enable him to He expressed his support for this, prior to the report of the Advisory Board of Insurance and Pension Funds.
Such provisions will receive the denomination of circulars, will be dealt with by the procedure regulated in article 24 of Law 50/1997, of 27 November, of the Government, will be published in the "Official Gazette of the State" and shall enter into force in accordance with the provisions of Article 2 (1) of the Civil Code.
3. The Directorate-General for Insurance and Pension Funds, through its electronic headquarters, will promote the dissemination of all information necessary to ensure the achievement of the objectives set out in this Law, and the processing of the procedures which is responsible for you electronically.
4. The Directorate-General for Insurance and Pension Funds shall draw up and give publicity to an annual report reflecting its supervisory activity and the general situation of the insurance and pension funds markets.
5. The decisions which the Directorate-General for Insurance and Pension Funds give in the exercise of the administrative powers conferred upon it in this Law shall be brought before the Minister for Economic Affairs and Competitiveness, in accordance with the provisions of this Law. established in Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Common Administrative Procedure.
Article 18. Advisory Board of Insurance and Pension Funds.
1. The Advisory Board of Insurance and Pension Funds is the administrative board of directors of the Ministry of Economy and Competitiveness in matters relating to the regulation and supervision of private insurance, reinsurance, plans and pension funds and insurance and reinsurance mediation.
2. It corresponds to the Advisory Board of Insurance and Pension Funds:
(a) Inform projects of general provisions on matters directly related to private insurance, reinsurance, pension plans and funds and mediation in insurance and reinsurance with the aim of making the principle of the hearing of the sectors concerned in the procedure for drawing up such provisions. The report you issue will not be binding.
b) Conduct studies and reports requested by your president.
(c) Formulate general or particular recommendations in the areas referred to in point (a) and in relation to compulsory insurance.
3. The Advisory Board of Insurance and Pension Funds shall be chaired by the Director General of Insurance and Pension Funds and shall form part, as vowels, representatives of the General Administration of the State, insured and users, members of pension schemes, insurance institutions, pension fund management entities, insurance intermediaries, trade union and business organisations, private insurance-related prestige corporations, actuaries, insurance experts and commissars of breakdowns, in the form and with the composition that they regulate determine.
In addition, the President may request assistance from other persons or entities in the condition of experts, depending on the nature of the matters to be dealt with.
4. The Advisory Board of Insurance and Pension Funds shall be convened in the cases where the law provides for consultation and when so decided by its chairman.
5. In the absence of the rules contained in this Law and its implementing regulation, as well as others that could be established to complement its regime and operation, the Advisory Board of Insurance and Pension Funds will be governed by the rules. on the functioning of the collegiate bodies provided for in Law 30/1992 of 26 November 1992 on the legal system of public administrations and the common administrative procedure and on the other provisions of common administrative law applicable to these types of organs.
CHAPTER II
Competencies of the Autonomous Communities
Article 19. Distribution of competencies.
1. The Autonomous Communities which, in accordance with their Statute of Autonomy, have assumed powers in the management of insurance and reinsurance undertakings, shall have them in respect of those entities, whose registered office, scope of operations and location of the risks, in the case of insurance other than life insurance, or the assumption of commitments, in the case of life insurance, are limited to the territory of the respective Autonomous Community, according to the following criteria:
(a) In the field of regulatory competence, it is for the legislative development of the bases of the management and supervision, of insurance and reinsurance entities contained in this Law and in the provisions basic regulations that complement it. As regards insurance cooperatives and social welfare mutual societies, they will also have exclusive competence in the regulation of their organization and operation.
(b) In the field of implementing powers, they correspond to those of management and supervision, of insurance and reinsurance entities which are granted to the General Administration of the State in this Law, except for the powers of granting of the administrative authorization for the exercise of the insurance activity and its revocation, which shall in any case be reserved for the State, which shall communicate, where appropriate, to the respective Autonomous Community. References in this Law to the Ministry of Economy and Competitiveness and to the Directorate-General for Insurance and Pension Funds shall be construed as references to the competent regional body, with the exception of those relating to institutions Spain shall act within the scope of the European Union or European entities operating in Spain.
It is also up to the Autonomous Communities to authorize access to insurance cooperatives and social welfare insurance cooperatives as well as their revocation, prior to the report of the Directorate General of Insurance and Pension Funds in both cases. The legal maximum period for resolving the authorisation or revocation procedure shall be suspended from the request until receipt of the said report. This period of suspension shall in no case exceed three months. The Autonomous Community shall communicate to that Directorate-General each authorization it grants, as well as its revocation.
2. The Autonomous Communities which, in accordance with their Statute of Autonomy, have assumed responsibility for the management and supervision of insurance institutions shall have them on the subscription agencies acting exclusively on behalf of the these.
3. For these purposes, the competent bodies of the Autonomous Communities shall, where requested by the Directorate-General for Insurance and Pension Funds and, in any case, annually, send the information and documentation of each institution to which they relate. Articles 80 and 114 of this Law and its regulatory development. The Autonomous Communities shall also provide the Directorate-General for Insurance and Pension Funds with access by electronic means to the information relating to their administrative registers of insurance and reinsurance entities.
4. The Directorate-General for Insurance and Pension Funds and the competent bodies of the Autonomous Communities shall maintain the necessary cooperation for the purposes of homogenising documentary information and coordinating their supervisory activities.
TITLE II
Access to insurance and reinsurance activity
CHAPTER I
Access to the activity of Spanish insurance companies and reinsurers
Section 1. Activity Access Conditions
Article 20. Administrative authority.
1. Access to the activities defined in Article 3.1 by insurers and reinsurers domiciled in Spain shall be subject to the prior authorisation of the Minister for Economic Affairs and Competitiveness.
2. Administrative authorization will also be required in the following scenarios:
a) to extend the activity of an insurance entity to other classes other than those authorized.
(b) for the extension of an authorisation of an insurance undertaking comprising only part of the risks included in a class.
(c) to enable an insurance undertaking to exercise its activity in a territory of a higher than initially authorised scope.
(d) for the extension of the territorial scope of action or of the activity developed by a reinsurer.
3. The application for authorisation shall be submitted to the Directorate-General for Insurance and Pension Funds and shall be accompanied by the documents proving compliance with the requirements referred to in Article 22 of this Law and its rules of procedure. development. The maximum period for resolving the authorisation procedure and the notification of the decision is six months. After this period has not been notified, the application shall be deemed to be rejected.
4. The authorisation granted by the Minister for Economic Affairs and Competitiveness shall be valid throughout the European Union without prejudice to Article 21.1.
5. The authorisation shall determine the registration in the administrative register as provided for in Article 40
6. Any authorisation granted to an insurance or reinsurance undertaking to act throughout the national territory shall be communicated by the Directorate-General for Insurance and Pension Funds to the European Insurance and Occupational Pensions Authority with the the purpose of such an authority to include its registered name on the public list of authorised insurers and reinsurers and to keep that list up to date.
Article 21. Scope of the authorization.
1. The authorisation of the insurance institutions shall be granted by classes, in accordance with the classification set out in the Annex to this Law. It shall cover the full range and cover of ancillary or ancillary risks, as appropriate.
The authorisation shall allow the insurance undertaking to carry out activities under the right of establishment or under the freedom to provide services in the European Union, unless the applicant wishes only to cover part of the the risks related to the authorised class, to carry out its activity in a territory which is smaller than that of the national territory, or to carry out operations within the meaning of Article 46.2.
Insurance entities so authorized may accept reinsurance operations in the same classes as the authorization.
2. The authorisation of the reinsurer institutions shall be granted for life reinsurance activities, reinsurance activities other than life, or for any type of reinsurance business and shall allow the reinsurer to exercise on a basis of right of establishment or freedom to provide services in the European Union.
Reinsurance activity will be exercised in full separation from policyholders and policyholders.
Section 2. Requirements for obtaining authorization
Article 22. General requirements for the authorisation of insurance and reinsurance entities.
It will be necessary for insurance companies and reinsurers domiciled in Spain to obtain and retain the following administrative authorisation:
1. Adopt one of the legal forms provided for in this Law.
2. Limit your social object to the insurance and reinsurance activity.
3. Present and abide by a program of activities.
4. To have the minimum minimum social capital or mutual fund and the basic own funds eligible to cover the absolute minimum of the minimum capital requirement.
5. Maintain basic own funds eligible to cover at all times the Minimum Capital Requirement as well as eligible own funds to cover the Solvency Capital Requirement.
6. Indicate the contributions and participations in the social capital or mutual fund of all the partners. It must be expressly stated which partners are in control and which partners have the status of an insurance undertaking, credit institution or investment firm, as well as, where appropriate, the shares, regardless of their size, of which any partner in an insurance undertaking, a credit institution or an investment firm is a holder.
7. Report on the existence of close links with other persons or entities.
8. Persons who, under any title, exercise the effective management of the institution or perform the functions of their governing system, are persons who fulfil the requirements of good repute and the necessary conditions of qualification and professional experience referred to in Article 38.
9. Have an effective system of government that meets the requirements laid down in Article 65.
Article 23. Refusal of authorization.
1. The Minister for Economic Affairs and Competitiveness shall refuse authorisation where the insurance or reinsurance undertaking fails to provide evidence of compliance with the requirements laid down in Article 22.
2. The refusal shall be made by ministerial order which shall be notified to the entity concerned and shall terminate the administrative route.
Article 24. Operations performed without administrative authority.
1. Contracts of insurance concluded and other operations subject to this Act by unauthorised entity, the administrative authorisation of which has been revoked, or which transgress the limits of the authorisation, shall be null and void. administrative granted.
2. Any person who has contracted with it shall not be obliged to fulfil his obligation to pay the premium and shall be entitled to the refund of the premium paid, unless a claim has been made before. If, prior to such repayment, a claim is incurred, covered by the contract if it has been valid, the entity which has concluded it shall be obliged to satisfy an indemnity, the amount of which shall be fixed in accordance with the rules governing the payment of the contract. benefit under the insurance contract, without prejudice to the duty to compensate for the remaining damages which it could have caused.
This obligation shall be in solidarity between the entity and those who, in the same management or management positions, have authorized or permitted the conclusion of such contracts or operations, all without prejudice to the administrative infraction in which the entity and the above directors or directors could have incurred.
3. The Directorate-General for Insurance and Pension Funds shall require any natural or legal person who, without having obtained the required authorization or transgressing the limits thereof, carries out operations under this Law to cease immediately in the exercise of such activity, and shall agree to the publicity it deems necessary for information from the public.
Article 25. Organizations and groupings.
1. No prior administrative authorization shall be required for organizations, whether or not they have legal personality, which are believed to remain for the distribution of the risk coverage between insurance institutions or for the provision of common services related to their business, as well as the groups of insurance entities referred to in Article 93, but in one and another case they shall notify the Directorate-General for Insurance and Pension Funds at an early date. one month to the initiation of the organized or grouped activity.
2. The Directorate-General may suspend the activities referred to in this Article or require amendments thereto, when they appreciate that they do not comply with the provisions of this Law.
Article 26. Prior query to monitoring authorities.
A prior consultation with the competent supervisory authority of the relevant Member State shall be the subject of the authorisation of an insurance or reinsurance undertaking when any of the following circumstances arise:
1. That the new entity is to be controlled by an insurance or reinsurance undertaking, a credit institution, an investment firm or a management company of collective investment institutions or pension funds, authorised in another Member State.
2. Their control is to be exercised by the dominant undertaking of an insurance or reinsurance undertaking, a credit institution, an investment firm or a management company of collective investment institutions or of funds of the pensions, authorised in another Member State.
3. Their control shall be carried out by the same natural or legal persons who control an insurance or reinsurance undertaking, a credit institution, an investment firm or a management company of investment institutions. collective or pension funds, authorised in another Member State.
This consultation will, in particular, achieve the assessment of the suitability of the partners and the good repute, qualifications and experience of those who, under any title, exercise the effective leadership and the functions that integrate the governance system of the new entity or the dominant entity, and may be reiterated for the continued assessment of compliance with those requirements by the Spanish insurance institutions.
Article 27. Nature, form and name of insurance and reinsurance entities.
1. The insurance activity may only be carried out by private entities that take one of the following forms:
a) public limited liability company,
b) European public limited company,
c) insurance mutual,
d) cooperative partnership,
e) European cooperative society,
f) social forecast mutuality.
Mutual insurance companies, cooperative societies and social security mutual societies will only be able to operate at a fixed premium.
2. Reinsurers shall take the legal form of a public limited liability company or a European public limited company.
3. Institutions which adopt any form of public law may also carry out the insurance and reinsurance activity, provided that they are intended to carry out insurance or reinsurance operations under conditions equivalent to those of the private insurers or reinsurers.
The entities referred to in the preceding paragraph shall conform to the provisions of this Law, in the absence of special rules contained in their specific rules, and shall also be subject, in the exercise of their activity, to the insurance contract, insurance contract law and the jurisdiction of civil order courts.
Article 28. Constitution.
Insurance and reinsurance entities will be constituted by public deed, which must be entered in the Mercantile Register. The legal personality shall be acquired by means of such registration as public limited liability companies, mutual insurance companies and social security mutual societies. Insurance cooperatives shall acquire the legal personality in accordance with their specific rules.
Article 29. Name.
The name of insurance or reinsurance undertakings shall include the words "insurance" or "reinsurance", or both, in accordance with their social object, which are reserved exclusively for those entities. Also reserved are the expressions "mutual insurance", "insurance cooperatives" and "social welfare mutual societies", which must be included in their denomination by the entities of that nature.
Article 30. Registered office.
1. The registered office of insurance and reinsurance undertakings shall be located within the Spanish territory, where the centre of its effective administration and management, or its principal establishment or operation, is situated in Spain.
2. The transfer of the registered office of an insurance or reinsurance undertaking domiciled in Spain abroad must be approved by the Minister for Economic Affairs and Competitiveness, subject to the publication of the transfer agreement and the one month since the publication of the last announcement warning the takers of their right to communicate to the Directorate General of Insurance and Pension Funds the reasons that, if any, they may have to be disagreeable with the transfer. However, such public information may be dispensed with when the authorisation is refused because it does not meet the legally enforceable requirements.
3. The transfer of the registered office of an insurance undertaking abroad shall be the subject of individual notification to the policyholders. The individual notification shall inform the supervisory authority to which the insurance undertaking shall be subject after the transfer of the registered office and on the right of the policyholders to terminate the insurance contracts.
4. The procedure for moving the address provided for in the preceding paragraphs shall be regulated.
5. In the case of a transfer to Spain of the registered office of an insurance or reinsurance undertaking domiciled abroad, the provisions of Article 20 shall apply.
Article 31. Social object.
1. The social object of the insurance institutions shall be exclusively the practice of insurance operations and other activities as defined in Article 3.
2. The social object of the insurance companies which intend to operate in any form of the class of life will be the carrying out of operations of that branch only and the coverage of risks complementary to the class of life. In addition, after obtaining the relevant administrative authorisation, they may carry out operations in classes 1 (accidents) and 2 (disease), as referred to in Annex A) (a) of this Law, without, in this case, subject to restrictions and requirements. (a) to be required for supplementary risk coverage.
3. The social object of insurance undertakings which intend to operate in any of the classes of direct insurance other than life insurance shall not be able to understand the conduct of operations in the life field. However, if they are only authorised for the risks included in classes 1 (accidents) and 2 (disease), as referred to in Annex A) (a) to this Act, they may operate in the field of life if they obtain the relevant administrative authorisation.
4. The social object of the reinsurer entities shall be exclusively reinsurance and related operations. Related operations shall mean the carrying out of statistical or actuarial studies, risk analysis or investigations for their clients, as well as any other related or derivative activity of the reinsurer activity. They may also be considered to be included in the social object of reinsurers, holding company functions and activities related to the financial sector.
Article 32. Program of activities.
The activity programme is the document that collects the strategic plan of the business project and must contain complete and appropriate indications or justifications for all those requirements, forecasts, estimates and conditions or policies to be determined regulatively.
Article 33. Social capital.
1. Public limited liability companies and insurance cooperatives must have the following minimum social capital when they intend to operate in the classes listed below:
a) 9,015,000 euros in the classes of life, caution, credit, any of those that cover the risk of civil liability and exclusively reinsurer activity.
b) 2,103,000 euros in the classes of accidents, disease, legal defense, assistance and deaths.
In the case of insurance companies that only practice sickness insurance by providing health care benefits and limit their activity to a territorial area with less than two million inhabitants, it will be sufficient half of the capital or mutual fund provided for in the preceding paragraph.
c) 3,005,000 euros, in the remaining ones.
2. The minimum share capital of public limited liability companies shall be fully subscribed and paid at least 50%. Capital disbursements above the minimum shall be in accordance with general commercial law.
In any case, the capital shall be represented by nominative titles or nominative notes.
3. Institutions carrying out their business in several classes of direct insurance other than life insurance shall have the share capital for the class for which the largest amount is required.
If, in accordance with Article 31.2 or 3, they are also active in the field of life, the share capital shall be that corresponding to the sum of those required for the class of life and for one of the classes other than those of operate.
Article 34. Mutual fund.
1. Mutual insurance funds shall provide proof of permanent mutual funds, provided by their mutualists or constituted with surpluses from the social exercises, the minimum amounts of which, according to the classes in which they are intended to operate, shall be those referred to as capital paid-up social security of public limited liability companies.
However, for the mutual benefit of a passive spill system, three quarters of that amount shall be required.
2. The social security funds which have obtained the administrative authorization to operate by classes shall establish a mutual fund, the minimum amount of which shall be the same as those referred to as the paid-up share capital of the companies as referred to in Article 33.1, without prejudice to Article 45.2.c) for mutual societies which operate by classes and continue to carry out insurance operations under Article 44.1.
3. The rest of the social security mutual funds must establish a mutual fund of EUR 30,050.61. They shall also form with their assets a wiggle fund which enables them to pay the claims and expenses without waiting for the recovery of the branches.
4. Where the mutual insurance undertakings and the social security funds which operate by classes carry out their business in several classes of insurance, the reference to the mutual fund shall apply to the mutual fund referred to in Article 3 (3). social capital.
5. The mutual fund must always be fully subscribed and disbursed.
Article 35. Limitations on the distribution of dividends, derbranches or any kind of remuneration linked to social capital.
Insurance and reinsurance entities may not distribute dividends, derbranches or any other kind of remuneration linked to the paid-up share capital, the issue premium, the paid-up mutual fund or any other other capital items equivalent to the basic own funds for mutual or mutual funds, in the following circumstances:
(a) in the event that the Solvency Capital Requirement or the Minimum Capital Requirement is not reached or,
(b) if the distribution of these dividends, branches or other remuneration linked to these capital elements could result in a non-compliance with the Solvency Capital Requirement or the Minimum Capital Requirement.
Article 36. Partners.
Natural or legal persons who, directly or indirectly, participate in the insurer or reinsurer by means of a significant participation in it, must be suitable for the sound and prudent management of this entity, in accordance with the provisions of the regulations.
Article 37. Close links.
Close links between the insurer or reinsurer and other natural or legal persons, if they exist, shall not impede the proper exercise of the supervision of the institution.
The provisions of a third country outside the European Union that regulate one or more of the persons with whom the insurance or reinsurance undertaking maintains close links, or the application of those provisions, either may impede the proper exercise of the supervision of the institution.
Article 38. Honorability and fitness of those who exercise the effective management or perform functions that integrate the entity's governance system.
1. Insurers and reinsurers and the dominant entities of groups of insurance entities shall ensure that all persons exercising the effective management, under any title, and those who perform the functions of the insurance Government system meets the following requirements at all times:
a) Be persons of recognized commercial and professional honorability.
b) To possess adequate knowledge and experience to enable the sound and prudent management of the entity.
2. The effective management of an insurance or reinsurance undertaking shall be deemed to have the following administrative or management positions, considering them as such:
a) The administrators or members of the collegiate administrative bodies. Legal persons may be charged with administration, but in this case they shall designate a natural person who also meets the above requirements in their representation.
(b) General and assimilated directors, with the understanding of all persons who exercise in the institution the senior management under the direct dependence of their management, executive or advisory committees delegates of that.
3. Insurers and reinsurers, as well as the dominant entities of groups of insurance institutions, shall communicate to the Directorate-General for Insurance and Pension Funds the appointment and any change in the identity of the persons concerned. they exercise the effective management of the institution or group, under any title, and those who perform the functions that are part of the institution's governance system, together with all the information necessary to assess whether the persons who, where appropriate, they have been appointed, fulfil the requirements of good repute and fitness. They shall also report to the Directorate-General for Insurance and Pension Funds where one of the persons referred to in the preceding paragraphs has been replaced by no longer fulfilling the requirements of good repute and fitness. Such communications shall be made within a maximum of 15 working days from the time of appointment.
4. Regulations shall determine the assumptions in which the requirements of the good repute and fitness of those who carry the effective management are fulfilled or perform functions that integrate the system of government of the entities, as well as the reporting requirements to be forwarded to the Directorate-General for Insurance and Pension Funds for the purpose of assessing their compliance.
Article 39. Responsibility and duties of the administrative or management bodies of the insurance or reinsurance entities.
1. The management body of the insurer or reinsurer shall assume responsibility for compliance with the provisions of this Law and the other regulatory standards of private insurance on the part of the insurer.
2. It shall apply to the members of the administrative body of the insurance institutions, whatever their legal form, the provisions on the duties of the administrators in Chapter III of Title VI of the recast of the Law of Companies of Capital, approved by the Royal Legislative Decree 1/2010 of 2 July.
3. The management office shall bear the responsibility arising from the performance of the tasks assigned to it in accordance with the organisational structure of the institution and the functions delegated to them by the institution. administration.
Article 40. Administrative record.
1. The Directorate-General for Insurance and Pension Funds shall keep an administrative register, in which the following entities and persons shall be registered:
(a) Spanish insurance companies and reinsurers, and partners with significant participation in the insurer or reinsurer.
(b) Those who, under any title, exercise the effective management of the insurance and reinsurance undertakings, insurance holding companies, mixed financial holding companies, joint ventures, the insurance portfolio and the mutual group companies which are the head of an insurance group. Where a legal person is appointed as a member of the administrative body, the natural person representing the body shall also be entered.
(c) The groups and sub-groups supervised by the Directorate-General for Insurance and Pension Funds in accordance with the provisions of Title V of this Law.
(d) European Union insurance companies operating in Spain under the right of establishment or freedom to provide services and their proxies or representatives, as well as those who carry the effective management of such services; branches and branches of reinsurers in the European Union who voluntarily request it.
(e) branches of third-country insurers or reinsurers authorised in Spain, as well as their proxies or representatives and persons carrying the effective management of such branches.
f) Organizations for the distribution of risk coverage among insurance entities or for the provision of common services related to their activity, and their high positions.
2. The registration procedure and the registration procedure shall be determined.
3. The administrative register shall be public, with the guarantee of access through the use of electronic means. Interested parties may access the data entered, taking into account that access to personal data will be governed by the provisions of Law 19/2013 of 9 December, transparency, access to public information and good governance and other laws that are applicable.
4. The Autonomous Communities which have the powers of management and supervision under Article 19.1 shall bear the relevant administrative register. Each entry in the register shall be communicated in a telematic form to the Directorate-General for Insurance and Pension Funds.
Section 3. Insurance Mutuals, Insurance Cooperatives and Social Welfare Mutuals
Article 41. Insurance mutuals.
1. Insurance mutuals are non-profit mercantile companies, which have as their object the coverage of the partners, whether natural or legal persons, of the risks secured by a fixed premium payable at the beginning of the risk period.
2. Mutuals may constitute mutual groups in accordance with the requirements laid down in regulation.
3. In cases of dissolution of the mutual and processing, merger and division in which the entity resulting from the transformation or merger, or beneficiary of the division, is a public limited liability company, as well as in the global transfer of assets and liabilities, the current mutualists and those who have been in the last five years, or in advance if the statutes so provide, shall at least receive half of the value of the assets of the mutual fund.
Article 42. Insurance cooperatives.
Insurance cooperatives, which have as their object the coverage of the risk partners secured by a fixed premium payable at the beginning of the risk period, shall be governed by the following provisions:
(a) The condition of the cooperating partner shall be inseparable from that of the policyholder or policyholder, provided that the latter is the final payer of the premium.
(b) Unless otherwise provided in the social statutes, the cooperatives shall not be liable for the debts of the company. Where, in accordance with the social statutes, the cooperative members are responsible for the debts of the company, their liability shall be limited to an amount equal to the amount of the annual premium corresponding to each of them. The statutory clause on the personal liability of the cooperative partner for social debts must be included in the insurance policies prominently.
(c) Registration in the Register of Companies and the Register of Cooperative Societies concerned must take place prior to the administrative authorization provided for in Article 20.
(d) In other words, they shall be governed by the provisions of this Law, their regulatory development, and by the precepts of the recast of the Law on Capital Companies to which it refers, as well as by the regulatory provisions to develop it and, in an additional way, by the legislation of cooperatives.
Cooperatives under management and supervision of the Autonomous Communities which have assumed competence in insurance matters shall be governed by the provisions laid down by those provisions, by the provisions of this Law and by the rules to be developed and, in addition, by the precepts of the recast text of the Capital Companies Act.
Article 43. Social forecasting mutuals.
1. Social welfare insurance institutions are insurance undertakings which exercise a voluntary insurance scheme in addition to the compulsory social security scheme, by means of contributions from the mutual societies, natural persons or legal, or other entities or persons protective. Those social welfare insurance funds which are recognised as alternatives to social security in the additional provision of Law No 30/1995 of 8 November 1995 on the Management and Supervision of Private Insurance in addition an alternative insurance form to the High in the Special Scheme of Social Security of Workers for Own or Self-Employed.
When all of your mutual societies are employed, their protective partners or promoters are the companies, institutions or individual entrepreneurs in which they provide their services and benefits. which are granted only as a result of the provision of foresight agreements between them and those, it shall be understood that mutual society acts as an instrument of business social foresight.
2. Social welfare insurance funds shall meet the following requirements:
(a) The provisions for mutual insurance in Article 41.
(b) The condition of a mutualist partner shall be inseparable from that of the policyholder or policyholder, provided that the latter is the final payer of the premium.
(c) Establish equality of obligations and rights for all mutualists, without prejudice to the provision of contributions and benefits to the statutory relationship established with the circumstances of each of the mutualists; them.
d) Unless otherwise provided in the social statutes, the mutualists shall not be liable for the debts of the mutual society. In the event that, as provided for in the social statutes, the mutualists are responsible for those debts, their liability shall be limited to less than one third of the sum of the quotas which they would have satisfied in the last three years. exercises, regardless of the current exercise. The statutory clause on the personal liability of the mutualist for social debts shall be included in the regulations on benefits and insurance policies in a prominent manner.
(e) The incorporation of the mutualists into the social security mutual benefit shall be in any case voluntary and shall require an individual declaration by the applicant, or a general declaration derived from agreements adopted by the bodies. representative of a cooperative or a professional college, except express opposition of the mutualist, without being able to set limits for entering the social security mutual benefit other than those provided for in its statutes for reasons justified.
(f) The incorporation of the mutualists may be carried out either directly by the social welfare mutual fund or through the insurance mediation activity, the latter as long as they meet the requirements of the fund. and financial guarantees that are payable. However, the mutualists may participate in the incorporation of new members and in the management of the collection of the quotas; in this case, they may receive the appropriate financial compensation fixed in the statutory form.
g) Perform only the insurance operations and grant the social benefits listed in Article 44, without prejudice to the provisions of Article 45 for the social security mutual funds authorized to operate by classes.
(h) directly assume the guaranteed risks to its mutualists, without performing co-insurance or reinsurance-taking operations, but may carry out reinsurance operations with entities authorised to operate in Spain. However, social security funds which are authorised to operate by insurance classes may carry out co-insurance operations and accept reinsurance operations.
(i) Remuneration and other income of the directors for posting, accommodation and maintenance, received for their management in the mutual fund shall be part of the administrative costs, which may not exceed the limits set out in the relevant legislation. However, the social security funds authorised to operate by classes shall not be subject to limits on their administrative costs.
(j) Where a mutual fund exercises majority control over other entities and pays the managers of the latter some amount in respect of the expenditure set out in the preceding paragraph, they shall take account of the expenses for administration of the mutual benefit.
3. Social security mutual societies may constitute mutual groups in accordance with the same requirements as are laid down for mutual groups.
4. The rules of the legal system of mutual insurance undertakings which apply to them shall be regulated for social security mutual societies.
Article 44. Scope of coverage and benefits of social security mutual societies.
1. In the provision of risks to persons, the contingencies they may cover are those of death, widower, orphan's, retirement and dependency, and will guarantee economic benefits in the form of capital or income. They may also grant benefits on grounds of marriage, maternity, children and death. And they may carry out accident and invalidity insurance operations for work, sickness, legal protection and assistance, as well as provide family support for the provision of reasons for reasons of fact or legal acts which temporarily impede the exercise of the profession.
The financial benefits to be guaranteed may not exceed EUR 30 000 as an annual income or an actuarial equivalent as a single capital charge, calculated in accordance with the technical basis established for the calculation of the This income, with the limit of EUR 300,000.
The limits provided for in the previous paragraph may be updated at the order of the Minister for Economic Affairs and Competitiveness, considering the adequacy of financial guarantees to meet the updated benefits.
However, for those mutual societies which are incurred in one of the situations referred to in Articles 159.1 and 172 of this Law, the new economic benefits to be guaranteed may not exceed EUR 18,000 as Annual income of EUR 78,000 as a single capital charge.
2. In the provision of risk on matters, they may only ensure that they are listed below and within the quantitative amount of such goods:
(a) Housing of official protection and other social interests, provided that they are inhabited by the mutualist himself and his family.
b) Machinery, goods and work instruments of mutualists who are entrepreneurs and small entrepreneurs. For this purpose, small entrepreneurs shall be understood as self-employed self-employed persons and professionals and employers, including agricultural workers, who do not employ more than five workers.
(c) Harvest of farms directly and personally cultivated by the farmer or his family, provided that they do not fall within the combined annual plan of agricultural insurance, and the forests, livestock, hives, fish farms and breeding farms of animals for consumption which are integrated into the family holding unit.
3. Each mutuality may grant all or part of the benefits referred to in the previous two paragraphs.
4. In addition to the provisions of paragraphs 1 and 2, social security mutual insurance funds which meet the mutual fund requirements and financial guarantees may provide social benefits linked to the aforementioned insurance operations in accordance with the provisions of the next:
(a) They must be specifically authorised by the Directorate-General for Insurance and Pension Funds or by the body of the competent Autonomous Community.
(b) The granting of social benefits shall be carried out with absolute financial and accounting separation in respect of their insurance operations.
c) The resources that you dedicate to the social benefit activity will be your free disposition.
5. A social security fund which has not obtained the administrative authorization referred to in Article 45 shall, in any event, apply the principle of proportionality as set out in Article 65.
Article 45. Social welfare insurance funds authorised to operate by insurance classes.
1. Social welfare insurance funds may operate as insurance classes and shall not be subject to the limits laid down in Article 44, provided that they obtain the prior administrative authorisation.
The authorisation may be granted for the life-class or for the following classes of insurance other than life, as referred to in Annex A) (a) to this Law: Ramo 1 (accidents), class 2 (disease), class 16 (pecuniary losses) (miscellaneous), class 17 (legal defence), class 18 (assistance) and class 19 (deaths), taking into account the provisions of Article 31.
2. They are necessary to ensure that a social security mutual benefit can obtain and retain the administrative authorisation to operate for classes, the following:
(a) There shall be at least five years after obtaining the administrative authorisation to carry out the insurance business.
(b) Not having been subject to special control measures, nor having been initiated administrative procedure for the dissolution or revocation of the administrative authorisation during the two years preceding the presentation of the request for authorization.
(c) Own the minimum mutual fund, the basic own funds eligible to cover the absolute minimum of the minimum capital requirement and the eligible own funds to cover the Solvency Capital Requirement, as well as constituted the technical provisions, all in the same terms as this Law establishes for mutual insurance.
When a social security mutual fund obtains administrative authorization to operate in the life class and continues to carry out insurance operations other than life, it must have a corresponding minimum mutual fund. to the sum of the required to the mutual insurance for the life class and the minimum provided for in Article 34.3.
When a social security mutual benefit is granted administrative authorization to operate in one or more insurance classes other than life insurance and continues to perform life insurance operations, it must have a mutual fund. a minimum corresponding to the sum of the required to the mutual insurance for the authorised class for which the largest amount is required and the minimum provided for in Article 34.3.
(d) Have annual gross premiums for premiums and a total gross amount of technical provisions exceeding the limits laid down in regulation for the special solvency regime referred to in Article 101.
(e) Submit and abide by an activity programme in accordance with Article 32 in relation to those classes of insurance for which it applies for authorisation.
3. The application for authorisation to operate by classes shall be carried out by the Directorate-General for Insurance and Pension Funds or, where appropriate, by the competent authority of the Autonomous Community, and shall be accompanied by the supporting documents of the compliance with the requirements laid down in paragraph 2. The authorisation shall be granted by classes and shall cover the full range and cover of the ancillary or ancillary risks, as appropriate.
In all other matters, the procedure and the administrative decision shall be in accordance with the provisions of Articles 20 to 22.
4. If the administrative authorization is obtained in the field of life, the social security fund may continue to carry out, as appropriate, accident, sickness and death insurance operations. If the administrative authorization is in any of the classes other than life, the social security fund may, in addition to carrying out the insurance operations corresponding to the authorized class, continue to carry out those operations under Article 44.1. In both cases, they shall be exempt from the limitations imposed by Article 43.2 (g) and (h) only in the insurance classes in which they have obtained the administrative authorisation.
5. The performance by a mutual social security fund of the activities that this article subject to an administrative authorization to operate by classes, without having obtained it previously, will be considered as a prohibited operation and will be subject to the the administrative effects and responsibilities referred to in Article 5, the regulation on special control measures under Title VI, and the regime of infringements and penalties under Title VIII.
6. The social welfare insurance funds may waive the authorisation to operate for classes granted, and return to the coverage and benefits scheme provided for in Article 44, in the terms that are laid down in regulation.
Section 4. Activity of Spanish insurance companies and reinsurers under the right of establishment and freedom to provide services in the European Union
Article 46. Spanish entities that can operate in the European Union.
1. The Spanish insurance companies and reinsurers which have obtained the authorisation valid throughout the European Union in accordance with Article 20 may exercise, on the same terms as the authorisation granted, their activities under the rule of law. of the establishment or the freedom to provide services throughout the territory of the European Union.
2. The provisions of the paragraph above shall not apply to:
(a) Insurance operations when the risks are covered by the Insurance Compensation Consortium.
(b) Insurance entities that are engaged in the special solvency regime, as regulated in Chapter VIII of Title III of this Law.
c) The following different life insurance operations:
1. Cations made by mutual insurance undertakings which have concluded an agreement on the full reinsurance of the insurance contracts which they have concluded or the replacement of the mutual transferee by the transferor for the implementation of the contract of the commitments resulting from such contracts.
2. The class 19 (deaths) of those regulated in Annex A) (a) to this Act.
3. The activity under the right of establishment or freedom to provide services in the European Union of the Spanish insurance institutions shall be entered in the register governed by Article 40, with the data set out in the the following Articles and the regulatory provisions for development.
Article 47. Conditions for the establishment of branches.
1. Any Spanish insurance undertaking which proposes to establish a branch in the territory of another Member State shall communicate it to the Directorate-General for Insurance and Pension Funds, accompanying the information to be determined in a regulated manner.
2. Within three months of the receipt of the communication referred to in the previous paragraph, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authority of the Member State of the a branch and shall accompany a certification that the insurance institution has the Solvency Capital Requirement and the Minimum Capital Requirement, calculated in accordance with the provisions of this Law and its implementing rules, and shall report such remission to the insurer.
3. The Directorate-General for Insurance and Pension Funds may refuse to forward such information when, in the light of the documentation submitted by the insurance undertaking, it has reason to doubt the suitability of its system of government, the financial situation or the suitability and good repute of the general manager, in accordance with Article 38. The refusal to forward the information to the Member State of the branch must be notified to the insurance undertaking, which may bring the relevant action against it. After a period of three months without the express resolution being notified, the communication of information shall be deemed to be refused.
4. If the supervisory authority of the Member State of the branch indicates to the Directorate-General for Insurance and Pension Funds the conditions under which, for reasons of general interest, those activities must be carried out in that State. Member of the branch, that Directorate-General shall communicate it to the insurance undertaking concerned.
5. The insurance institution may establish the branch and commence its activities since the General Directorate of Insurance and Pension Funds notifies it of the conformity of the supervisory authority of the Member State of the branch or the conditions of exercise by her indicated. It may also start the activity after the two-month period from the communication carried out by the Directorate-General for Insurance and Pension Funds referred to in paragraph 2.
6. The modification of the content of any of the data communicated in accordance with paragraph 1 shall be in accordance with the procedure laid down in this Article. The insurance institution shall also inform the supervisory authority of the Member State of the branch in which it is to be established or established and, as well as the Directorate-General for Insurance and Pension Funds, shall have a period of time. a month to exercise the functions attributed to them by this article.
7. The branch shall keep its documentation at the address of the Member State of the branch in which it can claim and deliver the documents.
Article 48. Communication to operate in freedom to provide services.
1. Any Spanish insurance undertaking which intends to exercise for the first time in one or more Member States activities under the freedom to provide services shall inform the Directorate-General for Insurance and Pension Funds of its project, indicating the nature of the risks or commitments it intends to cover.
2. The Directorate-General for Insurance and Pension Funds shall communicate the information received in accordance with the above paragraph within the maximum period of one month from its receipt to the Member State (s) in whose territory it is situated. propose the insurance undertaking to carry out its activities under the freedom to provide services. The content of this communication will be regulated.
3. The insurance undertaking may start its business from the date on which the Directorate-General for Insurance and Pension Funds notifies it that it has submitted the communication referred to in paragraph 2.
4. Any modification of the nature of the risks or commitments, which the insurance undertaking intends to cover under the freedom to provide services, shall be in accordance with the procedure and requirements set out in the preceding paragraphs.
Article 49. Statistical information concerning the cross-border activities of the Spanish insurance companies.
Spanish insurance companies operating under the right of establishment or under the freedom to provide services shall communicate to the Directorate-General for Insurance and Pension Funds the statistical information it shall be established, which may, within a reasonable period of time, be referred to the supervisory authorities of the Member States concerned which so request.
Section 5. Activity of Spanish insurance companies and reinsurers in third countries
Article 50. Creation of entities and other operations in third countries.
1. The creation by Spanish insurance companies or reinsurers of foreign-dominated companies, the acquisition of the dominant status in foreign companies, the establishment of branches and, where appropriate, the activity under free Provision of services in non-EU Member States will require communication to the Directorate-General for Insurance and Pension Funds one month in advance.
When the activities mentioned are detrimental to the financial and solvency situation of the institution, the Directorate-General, within one month, may decide on the basis of the prohibition of such activities or to establish conditions for their realization.
2. If no objection has been made after the previous period, the operation shall be communicated to the Directorate-General for Insurance and Pension Funds once it has become effective.
CHAPTER II
Access to the activity in Spain of insurance and reinsurance entities of other European Union States
Section 1. General Provisions for Insurance and Reinsurance Entities
Article 51. Insurance companies and reinsurers from other Member States that may operate in Spain.
1. Insurance companies domiciled in other Member States, which have obtained the authorisation to operate in their State of origin, may pursue their activities in Spain under the right of establishment or under the freedom to provide services. of services.
Non-insurance entities excluded from the scope of Directive 2009 /138/EC of the European Parliament and of the Council of 25 November 2009 on insurance against insurance against non-compliance with the provisions of the first subparagraph shall not be eligible for this purpose. life, access to insurance and reinsurance business and its financial year (Solvency II), as provided for in Articles 4 and 7 thereof, and the bodies governed by public law listed in Articles 8 and 10 of that Directive.
2. The insurance institutions referred to in the first subparagraph of paragraph 1 shall comply with the provisions laid down for reasons of general interest and those of Chapter VII of Title III on market conduct which, where appropriate, are applicable. They must submit, on the same terms as the Spanish insurance companies, all the documents required by the Directorate-General for Insurance and Pension Funds in order to verify whether they respect the Spanish provisions in Spain. are applicable.
3. Reinsurers domiciled in other Member States, who have obtained the authorization to operate in their State of origin, may exercise their activities in Spain under the right of establishment or freedom to provide services. services, without the need for administrative authorisation or prior communication, although the provisions laid down for reasons of general interest and those of supervision which, where appropriate, are applicable, shall be respected. They must submit, on the same terms as the Spanish reinsurers, all the documents required by the Directorate-General for Insurance and Pension Funds in order to verify whether they respect the Spanish provisions in Spain. they are applicable to them.
4. The contract documentation and other information which the Directorate-General for Insurance and Pension Funds has the right to require or to be referred to by insurance companies domiciled in another Member State shall be submitted in Spanish. operate in Spain under the right of establishment or freedom to provide services.
Article 52. Observance of the legal provisions by the insurance companies and reinsurers operating in Spain under the right of establishment or freedom to provide services.
1. If the Directorate-General for Insurance and Pension Funds finds that an insurance or reinsurance undertaking operating in Spain under the right of establishment or freedom to provide services does not comply with the Spanish provisions which it are applicable, will require you to accommodate your performance in the Spanish legal order. In the absence of the relevant adequacy by the institution, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authority of the home Member State in order to take the appropriate measures to ensure that the insurance or reinsurance entity puts an end to that irregular situation and notifies them to the General Directorate of Insurance and Pension Funds.
2. If, for lack of adoption of the relevant measures or because the measures taken were inadequate, the infringement of the Spanish legal order would persist, the Directorate-General for Insurance and Pension Funds may adopt, after informing the supervisory authorities of the home Member State, the policy and tariff prohibition measures provided for in Article 120 and the special control measures in Chapter II of Title VI which, in both cases, apply to it.
In addition, the Directorate-General for Insurance and Pension Funds or the supervisory authority of the home Member State may refer the matter to the European Insurance and Occupational Pensions Authority and request their assistance.
3. In the event of urgency, the measures referred to in the preceding paragraph may be adopted by the Directorate-General for Insurance and Pension Funds without the need for the requirement and the information required by paragraph 1.
Article 53. Tributes and surcharges.
Insurance contracts concluded under the right of establishment or under the freedom to provide services that cover localised risks or make commitments in Spain will be subject to the surcharges in favour of the Insurance Compensation Consortium to cover the needs of the Insurance Compensation Fund in the exercise of its loss compensation functions arising from extraordinary events in Spain, a national guarantee fund in the insurance of civil liability arising from the movement of motor vehicles and their function as a liquidator insurance companies, as well as other surcharges and taxes that are legally enforceable under the same conditions as contracts entered into with Spanish insurance companies.
Article 54. Civil liability insurance in motor vehicles.
Insurance companies operating in Spain under the right of establishment or under the freedom to provide services in civil liability insurance in motor vehicles, excluding the liability of the carrier, must be integrated into the Spanish Office of Automobile Insurers (OFESAUTO).
Section 2. Activity under the right of establishment of insurance and reinsurance undertakings domiciled in other Member States
Article 55. Conditions of access to the activity under the right of establishment.
1. Before a branch in Spain of an insurance institution domiciled in another Member State is established and starts to carry out its business under the right of establishment, the Directorate-General for Insurance and Pension Funds may indicate to the supervisory authority of the home Member State the conditions under which, for reasons of general interest, the activity in Spain should be exercised.
The Directorate-General shall have a period of two months, counted from the date of receipt of the communication referred to in Article 47.2 from the supervisory authority of the home Member State.
The branch may be established and commence its business in Spain since the supervisory authority of the home Member State notifies the branch of the conformity or the conditions indicated by the Directorate-General for Insurance and Pensions. It may also be initiated where such notification has not been received by the time limit of two months.
2. Any modification in the branch of any of the aspects referred to in Article 47.1 shall be subject to the same procedure, but the time limit, which shall be common, shall be reduced to one month.
Article 56. Supervision of branches in Spain by the authorities of the State of origin.
Where an insurance or reinsurance undertaking authorised in another Member State carries on its business in Spain through a branch, the supervisory authorities of the home Member State may, by themselves or by means of persons designated for this purpose, after information to the Directorate-General for Insurance and Pension Funds, to the verification of the information necessary to be able to carry out the financial supervision of the institution.
The Directorate-General for Insurance and Pension Funds shall participate in such verification in the terms that are determined to be determined.
The European Insurance and Occupational Pensions Authority may participate in the verifications to be carried out jointly with the other supervisory authorities.
Section 3. Activity in freedom to provide services of insurance and reinsurance entities domiciled in other Member States
Article 57. Conditions for access to the activity under the freedom to provide services.
Insurance companies domiciled in another State of the European Union may initiate or, where appropriate, modify their activity in Spain under the freedom to provide services since they receive the communication that the the supervisory authority of the home Member State has referred to the Directorate-General for Insurance and Pension Funds the communication referred to in Article 48.2.
Article 58. Specific requirements for civil liability insurance in motor vehicles.
1. Insurance companies domiciled in another State of the European Union who intend to operate in Spain under the freedom to provide services by covering the risks of civil liability in motor vehicles, excluding the liability of the carrier, must meet the following requirements at the beginning of its activity in Spain:
(a) Communicate to the General Directorate of Insurance and Pension Funds the name and address of a representative natural person who is habitually resident in Spain or legal person who is established in Spain, with the following faculties:
1. Lender claims submitted by injured parties. To this end, they shall have sufficient powers to represent the insurance undertaking, including for the payment of compensation, and to defend it before the Spanish courts and administrative authorities.
2. Represent the insurance institution before the competent Spanish judicial and administrative authorities in all matters relating to the control of the existence and validity of the insurance policies of civil liability which results from the circulation of motor vehicles.
b) To form before the General Directorate of Insurance and Pension Funds the statement is responsible for the fact that the insurance institution has been integrated into the Spanish Office of Automobile Insurers (OFESAUTO) and that it will apply the legally enforceable surcharges in favour of the Insurance Compensation Consortium.
2. If the insurance institution has not designated the representative referred to in paragraph 1.a), the representative appointed in Spain shall assume its duties for the processing and settlement of claims occurring in another Member State, where the The injured person has his residence in Spain.
Article 59. Tax obligations.
Insurance companies domiciled in another State of the European Union who intend to operate in Spain under the freedom to provide services will be required to practise withholding or income to account and to enter the amount in the Treasury, as well as to inform the Tax Administration, in relation to the operations carried out in Spain, in the terms provided for in the regulations of taxes on the income of natural persons, on companies and on the income of non-residents.
Article 60. Subscription agencies.
1. An insurance institution may enter into contracts for the taking of a risk subscription with Spanish legal persons on behalf of and on behalf of those entities.
2. The subscription agency in Spain will be able to obtain the administrative authorization of the General Directorate of Insurance and Pension Funds. The requirements and procedure for obtaining and retaining the administrative authorisation shall be regulated.
3. It will also require administrative authorisation for a subscription agency to be able to operate for other insurance entities other than those authorised and to be able to subscribe to other risks other than those initially requested. and authorised with a given entity with which it is already authorised. The requirements and procedure for obtaining the extension of the administrative authorisation shall be regulated.
4. The rules on significant holdings contained in Articles 85 to 88 shall apply to subscription agencies, on the understanding that the information provided to the insurance institutions is referred to the subscription agencies, where the transferor or the acquirer is an insurance undertaking, or an insurance broker, or a reinsurance broker or other subscription agency.
5. The name 'subscription agency' shall be reserved for the companies defined in this Article. In the commercial documentation of insurance subscription and advertising which the subscription agencies carry out on a general basis or through telematic means, they must mention their nature as a subscription agency and to the entities or entities insurers with whom they have entered into a proxy contract.
6. The departments and customer services of the insurance companies will address and resolve the complaints and complaints that arise in relation to the performance of the subscription agencies in the terms that the regulations establish on protection of the financial services client.
7. The Directorate-General for Insurance and Pension Funds shall revoke the administrative authorisation granted to the subscription agencies within the meaning of points (a), (b), (b), (d), (e) and (f) of paragraph 3 (a) and (b). Article 169 (6) and (7), in the understanding that the references contained therein to the insurance companies are made to the subscription agencies.
The cause of revocation of the administrative authorization for the effective lack of activity of this Law will be that all the powers granted to the subscription agency have been revoked.
8. The special control measures referred to in Article 160 shall apply to the subscription agencies as soon as they are applicable to them.
9. The regime of infringements and penalties shall be that laid down in Title VIII of this Law.
CHAPTER III
Access to the activity in Spain of third-country insurance and reinsurance
Section 1. 3rd Third Country Insurance Entities
Article 61. Authorisation of branches of insurance entities from third countries.
1. The Minister for Economic Affairs and Competitiveness may authorise insurance companies domiciled in third countries not members of the European Union to establish branches in Spain, provided that they comply with the requirements which they regulate set.
2. The maximum period for resolving the procedure and the notification of the decision is six months. After this period has not been notified, the application shall be deemed to be rejected.
3. Given the administrative authorisation, the branch, its general manager and those who carry out the effective management shall be registered in the administrative register provided for in Article 40.
4. Non-life insurance shall not be required for branches established in Spain of Swiss insurance institutions of Swiss nationality with the requirements to be determined in a regulated manner.
Article 62. Limitations to the activity in Spain of insurance entities in third countries.
It is prohibited to arrange for direct insurance operations in Spain with third-country insurance entities outside the European Union or to do so through private insurance intermediaries that carry out their activities for those companies. From the above, it is excepted from the assumption that these insurance companies contract through branches legally established in Spain.
Section 2. 3rd Third Country Reinsurance Entities
Article 63. Branches of reinsurers from third countries.
1. The establishment of branches in Spain of reinsurers from third countries shall require the prior administrative authorisation of the Minister for Economic Affairs and Competitiveness, which shall be granted in accordance with Article 61, for life reinsurance activities, reinsurance activities other than life, or for all types of reinsurance activities.
2. The approval of the branches shall determine the registration in the administrative register provided for in Article 40.
Article 64. Activity in Spain of the reinsurers of third countries from the country of origin.
Reinsurance entities from third countries may engage in activity in Spain from the country where they have their registered office, but not from branches located outside Spain, even if they are established in the European Union.
TITLE III
Exercise of the activity
CHAPTER I
Insurance and Reinsurance Entity Governance System
Article 65. General requirements of the governance system.
1. All insurers and reinsurers shall have an effective system of government which ensures the sound and prudent management of the business and which is proportionate to its nature, the volume and the complexity of its operations.
2. The system of government shall include written policies of corporate governance that will include, among others, a transparent and appropriate organizational structure, with a clear distribution and adequate separation of functions, effective mechanisms for ensure the transmission of the information, and remuneration policies and practices appropriate to the characteristics of the entities.
3. The entity's governance system shall comprise the following functions: risk management, compliance verification, internal audit and actuarial.
The system of government shall establish effective mechanisms to ensure compliance with the requirements of fitness and good repute of the persons who effectively direct or perform the functions of the entity. (a) the main component, provided for in Article 38, of the requirements laid down in this Law and in the development legislation relating to risk management, the internal risk assessment, internal control and compliance, internal audit, actuarial function and outsourcing of functions or activities.
4. The ultimate responsibility of the government system shall be the administrative body of the insurance and reinsurance entities.
5. The Directorate-General for Insurance and Pension Funds shall verify the governance system of the insurance and reinsurance entities and assess the emerging risks identified by such entities that may affect their financial soundness, They may require them to take the necessary steps to improve and consolidate their governance system.
Article 66. Risk management system, internal risk assessment and solvency, internal control system and governance system functions.
1. Insurance and reinsurance entities shall establish an effective risk management system comprising the strategies, processes and information procedures necessary to identify, measure, monitor, manage and report in a way continues the risks to which, on an individual and aggregate level, they are or may be exposed, and their interdependencies.
This risk management system will be effective and properly integrated into the organisational structure and decision-making process of the entity, and will take due account of the people who lead it in a way effective or exercise the functions that make up the governance system.
Insurance and reinsurance entities shall establish a risk management function that facilitates the application of the risk management system.
2. As part of its risk management system, insurance and reinsurance entities shall carry out an internal risk and solvency assessment on a regular basis and, in any case, immediately after any significant change in their risk management system. risk profile.
The internal risk and solvency assessment shall form an integral part of the business strategy and shall be taken into account in a continuous manner in the entity's strategic decisions.
Insurance and reinsurance entities shall report to the General Directorate of Insurance and Pension Funds the results of each internal risk and solvency assessment, in terms that are determined in a regulatory manner.
The internal risk and solvency assessment shall not be used to calculate or adjust the capital requirement.
3. Insurance and reinsurance entities shall establish, document and maintain at all times an appropriate internal control system for their organisation.
Such a system shall include at least administrative and accounting procedures, an appropriate structure, appropriate reporting mechanisms at all levels of the institution and a verification function of the institution. compliance.
The compliance verification function shall include advice to the administrative body regarding compliance with the laws, regulations and administrative provisions affecting the entity, as well as the compliance with its internal rules. It shall also conduct the assessment of the impact of any change in the legal environment on the entity's operations and the determination and assessment of compliance risk.
4. Insurance and reinsurance entities shall have an effective internal audit function, which shall include checking the adequacy and effectiveness of the internal control system and other elements of the institution's governance system and develop in accordance with the provisions of the regulation of the management, supervision and solvency of insurance and reinsurance entities and the audit of accounts.
The internal audit function must be objective and independent of the operational functions.
The findings and recommendations arising from the internal audit shall be notified to the administrative body, which shall determine which actions to be taken with respect to each of them and shall ensure that these actions are carry out.
5. Insurance and reinsurance entities shall have an effective actuarial function.
The actuarial function shall be performed by persons having sufficient knowledge of actuarial and financial mathematics, in accordance with the nature, volume and complexity of the risks inherent in the activity of the institution insurer or reinsurer, and who can credit the relevant experience in relation to the applicable professional and other rules.
6. The risks to be included in the risk management system, as well as the scope of the internal evaluation and the actuarial function, shall be determined.
Article 67. Outsourcing of functions.
1. Insurance or reinsurance entities may outsource their critical or important operational functions or activities except where the following circumstances are present:
a) The quality of your governance system is significantly impaired,
(b) unduly increases operational risk, undermines the ability of the Directorate-General for Insurance and Pension Funds to monitor compliance with the entity's obligations or to affect the continued service and satisfactory for the policyholders.
2. In order to avoid such negative effects, a person responsible for the outsourced function or activity must be designated within the entity, having sufficient experience and knowledge to check the performance of the service providers.
3 Insurance and reinsurance entities shall inform the General Directorate of Insurance and Pension Funds in advance of the outsourcing of critical or important functions or activities, as well as any subsequent changes significant in relation to those functions or activities. This Directorate-General may object to the same, within one month of receipt of the communication, when any of the cases referred to in paragraph 1 are given.
Changes relating to the controller of the function, the service provider, or the scope of the outsourced activities shall be considered significant.
4. In any event, insurers and reinsurers who outsource part of their duties will continue to respond to the fulfilment of all the obligations set out in this Law and its implementing rules.
CHAPTER II
Asset and liabilities valuation, financial collateral and investments
Section 1. Asset and liabilities valuation, and technical provisions rules
Article 68. Valuation of assets and liabilities.
Insurance and reinsurance entities shall value assets and liabilities in accordance with the following rules:
1. Assets shall be valued for the amount by which they could be exchanged between interested parties and duly informed parties engaged in a transaction under conditions of mutual independence.
2. Liabilities shall be valued for the amount by which they could be transferred or settled between interested parties and duly informed parties engaged in a transaction under conditions of mutual independence.
3. When assessing liabilities in accordance with paragraph 2, no adjustment shall be made to take account of the solvency of the insurance or reinsurance undertaking.
Article 69. Technical provisions.
1. Insurers and reinsurers shall compute among their debts the technical provisions necessary to reflect all obligations arising from insurance and reinsurance contracts.
2. The value of the technical provisions shall correspond to the current amount that insurers and reinsurers would have to pay if they transferred their insurance and reinsurance obligations immediately to another insurance undertaking or reinsurer.
3. For the purposes of the calculation of technical provisions, the information provided by financial markets and generally available data on subscription risks shall be used, information to which the calculation shall be consistent.
4. Technical provisions shall be measured in a prudent, reliable and objective manner.
5. The technical provisions to be calculated and the techniques, methods and assumptions for their calculation, as well as the conditions for the application of the adjustment by marriage to the temporary structure of interest rates without risk and of the volatility adjustment to the temporary structure of interest rates without risk.
6. Where the insurance or reinsurance undertaking wishes to apply the adjustment by marriage, as referred to in the preceding paragraph, it shall obtain the prior authorisation of the Directorate-General for Insurance and Pension Funds, in terms and conditions which are established by the rules of the European Union of direct application.
The maximum period for resolving the procedure for prior authorization and notification of the resolution is six months. After this period has not been notified, the application shall be deemed to be rejected.
Article 70. Requirement to increase the amount of technical provisions.
1. At the request of the Directorate-General for Insurance and Pension Funds, insurance and reinsurance undertakings shall demonstrate the adequacy of the level of their technical provisions, as well as the applicability and relevance of the methods used, and the suitability of the base statistical data used.
2. To the extent that the amount and calculation of the technical provisions does not comply with the provisions applicable, the Directorate-General for Insurance and Pension Funds may require those institutions to increase the amount of the technical provisions. technical provisions to be placed at the required level.
Such requirements shall not constitute a special control measure for those covered by Chapter II of Title VI. The supervisory powers in relation to technical provisions within a procedure of special control measures shall apply without prejudice to the provisions of the preceding paragraph.
Section 2
Article 71. Determination of own funds.
1. The own funds of insurers and reinsurers shall be made up of the sum of the basic own funds and the supplementary own funds. Regulations shall determine the elements that make up each of them.
The amount of each element of the supplementary own funds that the institution wishes to include between own funds, for solvency purposes, shall reflect its loss absorbing capacity and shall be based on prudent assumptions and realists, and shall be subject to the prior authorisation of the Directorate-General for Insurance and Pension Funds under the terms and conditions laid down in the European Union rules of direct application.
The prior authorisation of the General Directorate of Insurance and Pension Funds shall approve the monetary amount of each element of the supplementary own funds, or the method of calculating that amount. In the latter case, the authorisation shall be extended to the amount determined in accordance with this method and shall also fix the period of validity of the method.
The maximum time limit for resolving the procedure for prior authorisation and notification of the decision is three months, unless exceptional circumstances are met in which case it may be extended to six months. After this period has not been notified, the application shall be deemed to be rejected.
2. The assumptions and the conditions under which the surplus funds constituted by the accumulated profits which have not been allocated to the policyholders and the beneficiaries of insurance may be established, and that comply with the criteria set out in the to be classified as Tier 1 own funds in accordance with Article 72, shall not be considered as obligations arising from insurance or reinsurance contracts.
Article 72. Classification of own funds at levels.
1. The elements of own funds are classified in three levels: level 1, level 2 and level 3. The criteria for classification at these levels will be determined in the rules of the European Union of direct application.
2. Insurance and reinsurance institutions shall classify their own funds in accordance with the above criteria. To this end, they shall be referred to the list of the elements of the own funds covered by the European Union rules of direct application.
3. The limits applicable to levels 1, 2 and 3 shall be determined in accordance with the obligations of the insurance institutions in respect of the classification of funds and the authorisation procedure by the Directorate-General for Insurance and Pension funds for the inclusion of elements not incorporated in the list in the previous paragraph, without prejudice to the rules of the European Union of direct application.
Article 73. Eligibility of own funds.
1. The basic own funds shall be eligible for the coverage of the Solvency Capital Requirement and the Minimum Capital Requirement.
2. Supplementary own funds shall be eligible only for the coverage of the Solvency Capital Requirement. Additional own funds shall not be allowed to cover the minimum capital requirement.
Section 3. Compulsory Solvency Capital
Article 74. Calculation of the Solvency Capital Requirement.
1. The Solvency Capital Requirement shall be calculated on the basis of the entity's business continuity principle and shall be equal to the risk value of the basic own funds of an insurance or reinsurance undertaking, with a confidence level of 99.5 percent, and a one-year time horizon.
2. Insurance and reinsurance undertakings shall calculate the Solvency Capital Requirement at least annually and shall report the results of this calculation to the Directorate-General for Insurance and Pension Funds.
3. Insurers and reinsurers shall at all times cover the Solvency Capital Requirement with their own funds, basic or supplementary, which are eligible.
The eligible amount of own funds for the coverage of the Solvency Capital Requirement shall be equal to the sum of the amount of Tier 1, the eligible amount of Tier 2 and the eligible amount of Tier 3.
4. The calculation of the Solvency Capital Requirement shall be regulated.
5. In addition, the insurer or reinsurer shall be required to forward, within one month of the detection of the changes, this information when its risk profile or its own funds may have been significantly reduced from the assumptions on which the last information provided to the Directorate-General for Insurance and Pension Funds was based.
Without prejudice to this obligation, the Directorate-General for Insurance and Pension Funds may require the insurer or reinsurer to rework and present new calculations, in relation to the information it must refer to, where there are indications that the risk profile of the institution has varied significantly from the reference date of the last information submitted.
Article 75. Methods of calculation of the Solvency Capital Requirement.
1. The Solvency Capital Requirement may be calculated in accordance with the following
:a) By using the standard formula, specific simplifications and parameters can be applied, if any.
b) Using full or partial internal models.
2. The use of internal models or specific parameters shall require prior administrative approval at the request of the institution. The maximum period for resolving the procedure and the notification of the decision is six months. After this period has not been notified, the application shall be deemed to be dismissed.
3. The methods of calculation of the Solvency Capital Requirement, the authorisation and implementation procedures, and the effects of their non-compliance, shall be developed in accordance with the rules of the European Union of direct application.
Article 76. Additional mandatory solvency capital requirement.
After the supervisory and exceptional actions, the Directorate-General for Insurance and Pension Funds may require the supervised insurance or reinsurance undertaking, by means of a reasoned decision, to require additional capital. The additional capital requirement assumptions, the applicable procedure and the review deadlines shall be developed in a regulatory manner and by the rules of the European Union of direct application.
Article 77. Responsibility of the administrative body in relation to internal models.
1. The administrative bodies of the insurance and reinsurance undertakings must give their express agreement to the application for authorization of the internal model to the Directorate-General for Insurance and Pension Funds, and also to the concerns the request for authorization of any subsequent modification of that model.
2. It is the responsibility of the entities ' administrative bodies to implement the necessary systems to ensure the smooth functioning of the internal model.
In particular, they must ensure that the design and operation of the internal model is always effective, and that the model is appropriately reflected in the risk profile of the institution.
Section 4. Minimum Minimum Capital Requirement
Article 78. Minimum capital requirement.
1. Insurers and reinsurers shall be required to hold basic own funds eligible to cover the Minimum Capital Requirement, which shall be the amount of the basic own funds eligible under which the policyholders and the Beneficiaries, in the case of continuing their activity, would be exposed to an unacceptable level of risk.
The eligible amount of basic own funds for the coverage of the Minimum Capital Requirement shall be equal to the sum of the amount of Tier 1 and the eligible amount of items of the basic own funds classified in the level 2.
2. The minimum capital requirement shall be calculated as a linear function of a set or a subset of the following net reinsurance variables: technical provisions, accrued premiums, risk capital, deferred taxes and expenses of the entity. The linear function shall be calibrated according to the risk value of the basic own funds of an insurance or reinsurance undertaking, with a confidence level of 85 per 100, with a time horizon of one year.
3. The Minimum Capital Requirement shall not be less than 25 per 100 and shall not exceed 45 per 100 of the institution's Solvency Capital Requirement, including any additional required Solvency Capital Requirement.
In any case you will have the following absolute minimum amounts:
(a) EUR 2,500,000 in the case of insurance undertakings operating in classes of insurance other than life insurance, including captive insurance institutions, except where all or some of the risks of insurance are covered civil liability, credit and caution (classes 10 to 15 of Annex A) (a) of this Law), in which case it shall not be less than EUR 3,700,000;
(b) EUR 3,700 000 in the case of insurance undertakings operating in the life class, including captive insurance institutions;
(c) EUR 3,600,000 in the case of reinsurers, except in the case of captive reinsurance entities, for which the minimum capital requirement shall not be less than EUR 1,200,000;
(d) the sum of the amounts set out in points (a) and (b) in the case of insurance undertakings which simultaneously perform life and insurance activities other than life insurance.
4. For the mutual benefit of the passively and the cooperatives, the absolute minimum amount of the minimum capital requirement shall be three-quarters of the requirement for the remaining entities.
When such entities do not operate in the fields of civil liability, credit, caution or exclusively reinsurer activities, and their annual amount of premiums or quotas does not exceed EUR 5 million for three years. (a) consecutive years, the minimum capital requirement may not be less than EUR 800 000 if they operate in the field of life, EUR 200,000 if they operate in the classes of other damage to property, legal defence or death, and EUR 300,000 if they operate in the remaining. In case the institution exceeds the amount of EUR 5 million for three consecutive years, the minimum amount provided for in the preceding subparagraph shall apply with effect from the fourth year.
However, mutual benefit to such a scheme shall be exempt from the absolute minimum amount of the minimum capital requirement where they do not operate in the fields of life, civil liability, credit or caution or carry out activities exclusively reinsurer and its annual amount of premiums or fees does not exceed EUR 750,000.
5. For social security funds which have not obtained the administrative authorisation to operate by classes, the absolute minimum amount of the minimum capital requirement shall be three quarters of the requirement in the first subparagraph of paragraph 1. previous.
However, for mutual societies which provide in their statutes the possibility of carrying out quotas or of reducing benefits and the annual amount of quotas does not exceed EUR 5 million for three years The minimum absolute minimum amount of the minimum capital requirement shall be that provided for in the second subparagraph of the preceding paragraph. If the institution exceeds the amount of EUR 5 million for three consecutive years, the minimum amounts shall be as set out in the preceding paragraph from the fourth year.
shall be exempt from the absolute minimum amount of the minimum capital requirement of social security funds whose exclusive purpose is to provide benefits or allowances for teaching or education and, in any case, those mutual benefits social security schemes which do not operate by classes, which provide in their statutes the possibility of carrying out quotas or of reducing benefits, which do not cover life risks and the amount of which does not exceed EUR 750 000.
For the purposes of this paragraph, the risks covered by these social security funds shall be assimilated to the insurance classes in the manner prescribed for the Solvency Capital Requirement.
6. Insurers and reinsurers shall calculate the minimum capital requirement at least quarterly and report the results of this calculation to the Directorate-General for Insurance and Pension Funds. Notwithstanding the foregoing, it shall not be necessary to calculate the Solvency Capital Requirement on a quarterly basis for the application of the limits provided for in the first subparagraph of paragraph 3.
Section 5. Inversiones
Article 79. Rules on investments by insurers and reinsurers.
1. Insurance and reinsurance undertakings shall invest their resources in accordance with the principle of prudence. They shall invest only in assets and instruments whose risks they can determine, measure, monitor, manage and control properly, in addition to adequately reporting to the Directorate-General for Insurance and Pension Funds. Such risks shall be taken into account in the assessment of the overall solvency requirements within the internal risk and solvency assessment.
2. The rules on investments are developed in regulation and through rules of the European Union of direct application.
CHAPTER III
Public information on the financial and solvency situation
Article 80. Report on the financial and solvency situation.
1. Insurance and reinsurance undertakings shall publish, on an annual basis, a report on their financial and solvency situation. The content, form and time limits for the publication of this report will be determined.
2. Insurance and reinsurance institutions shall have adequate systems and structures to meet the requirements for reporting and publication obligations in the report on the financial and solvency situation, and will have a written policy to ensure the permanent adequacy of all published information.
The public report on the financial and solvency situation shall be approved by the entity's management body prior to its publication.
Article 81. Waiver of disclosure of information in the report on the financial and solvency situation.
1. The Directorate-General for Insurance and Pension Funds may authorise the non-disclosure of information when such disclosure allows the entity's competitors to take undue advantage of the non-disclosure of information. significant or when commitments to insurance policyholders or other counterparties require the entity to be secret or confidential.
In this case, the entities shall make a statement in their report on the financial and solvency situation and indicate the reasons.
2. The above paragraph shall not apply to information relating to the management of capital whose content is to be regulated.
Article 82. Updates to the report on the financial and solvency situation and additional voluntary information.
1. Where significant circumstances significantly affect the information published in the report on the financial and solvency situation, insurance and reinsurance entities shall publish the appropriate information on their nature. and its effects. Regulations will be determined to be considered important and the measures that the Directorate-General for Insurance and Pension Funds can take in such cases.
2. Insurance and reinsurance undertakings may, on a voluntary basis, publish any information or explanation relating to their financial and solvency situation, the publication of which is not required under Articles 80 and 81 of this Law. and its implementing regulation and paragraph 1 of this Article.
CHAPTER IV
Accounting Obligations
Article 83. Accounting of insurance and reinsurance entities.
1. The accounting of insurance and reinsurance entities shall be governed by their specific rules and, failing that, by those laid down in the Trade Code, the General Accounting Plan and the other provisions of the legislation. market in accounting matters.
2. The economic performance of all insurance and reinsurance entities shall coincide with the calendar year.
The specific accounting standards referred to in the previous paragraph, the accounting obligations of the insurance institutions, the accounting principles of compulsory application, the rules and the rules of application shall be laid down. on the formulation of annual accounts, the criteria for the assessment of the constituent elements of the accounts, as well as the arrangements for the approval, verification, deposit and publicity of those accounts.
3. The Minister for Economic Affairs and Competitiveness, after reporting from the Institute of Accounts and Audit of Accounts and the Advisory Board of Insurance and Pension Funds, may issue the specific accounting rules referred to in paragraph 1, in particular the Accounting Plan of the insurance institutions, as well as their amendments and additional rules.
The Minister of Economy and Competitiveness will be able to entrust to the Directorate-General for Insurance and Pension Funds the development of the specific accounting standards of insurance and reinsurance entities, and their adequacy to the international financial reporting standards that will be applicable, after reporting by the Accounting and Audit Institute of Accounts and the Advisory Board of Insurance and Pension Funds.
Article 84. Formulation of consolidated accounts of insurance and reinsurance group groups.
1. It shall apply to the groups of insurance and reinsurance entities as defined in paragraph 3 of this Article, as provided for in Article 43a of the Trade Code.
Notwithstanding the foregoing, where the international financial reporting standards adopted by the European Union regulations, the formulation of the accounts are not applied in accordance with the provisions of that Article. Consolidated groups of insurance and reinsurance entities shall be governed by their specific rules and, failing that, by those laid down in the Trade Code and in their implementing provisions.
2. The determination of the applicable specific rules for the formulation of consolidated accounts of insurance and reinsurance groups shall be made in accordance with Article 83.3. This determination shall be carried out in compliance with the principles on the presentation of the accounts of the groups of companies contained in Book I of the Trade Code and its implementing provisions, the adjustments being made. required compliance that is necessary for groups of insurance and reinsurance entities.
3. For the purposes of this Article, group of insurance and reinsurance entities shall be understood to be the group in which one of the following circumstances applies:
a) The dominant company is an insurance or reinsurance entity.
(b) The dominant company is an entity whose principal activity is to have holdings in insurance or reinsurance entities.
c) When integrated by insurance and reinsurance entities and by entities of another type, the activity of the first is the most important of the group.
The group concept provided for in this Article for the purposes of the consolidated account formulation is independent of the group supervision provided for in Title V of this Law.
CHAPTER V
Equity regime in insurance and reinsurance entities
Article 85. Obligations relating to the acquisition of holdings in insurance and reinsurance entities.
1. Any natural or legal person who, on its own or acting in concert with others, has acquired directly or indirectly, a holding in an insurance or reinsurance undertaking, in such a way as to have his share of capital or voting rights shall be equal to or greater than five per cent, provided that the following paragraph 2 is not applicable, shall report within a maximum period of ten working days from the time of the written acquisition to the Directorate-General for Insurance and Pension funds and the participating entity, indicating the amount of participation achieved.
2. Any natural or legal person who, on its own or acting in concert with another, has decided to acquire, directly or indirectly, even in the case of increase or reduction of capital, mergers and divisions, a significant contribution in an insurance or reinsurance undertaking or to increase its significant share, so that the proportion of its voting rights or participation in the capital is equal to or greater than the limits of 20%, One hundred or fifty percent, and also when, by virtue of the acquisition, the control the insurance or reinsurance undertaking, notify it in advance in writing to the Directorate-General for Insurance and Pension Funds, stating the amount of such participation, the terms and conditions of the acquisition and the time limit the maximum in which the operation is intended to be performed and will provide the documentation that is regulated.
This obligation also corresponds to the insurance or reinsurance entity from which the significant share referred to is acquired or increased.
The Directorate-General for Insurance and Pension Funds will assess the suitability of the person who intends to acquire or increase the participation and financial soundness of the proposed acquisition or increase according to the criteria and the procedure to be determined by regulation. The information provided to you must be relevant for the assessment, and proportionate and appropriate to the nature of the person who intends to acquire or increase the participation and the proposed acquisition. The Directorate-General for Insurance and Pension Funds may object to the acquisition or object to the acquisition.
3. For the purposes of determining whether there is a significant participation in an insurance or reinsurance undertaking, no account shall be taken of the voting rights or the percentage of capital resulting from the insurance of an issue or a placement of financial instruments or the placement of financial instruments based on a firm commitment, provided that such rights are not exercised to intervene in the issuer's management and are transferred within one year of its acquisition. The actions, contributions and voting rights to be integrated into the computation of a participation shall be regulated.
In any case, the possibility of appointing or removing any member of the board of directors of the insurance institution is understood by notable influence.
4. The provisions of this Article for insurance and reinsurance undertakings shall be without prejudice to the application of the rules on takeover bids and information on significant shareholdings contained in the Law 24/1988, of 28 July, of the Stock Market and its implementing rules and without prejudice to the application of the rules on control of economic concentrations contained in Law 15/2007, of 3 July, of Defense of Competition.
Article 86. Effects of non-compliance.
1. Where one of the acquisitions or increases referred to in Article 85 is carried out, without prior notification to the Directorate-General for Insurance and Pension Funds or, having notified it, the time limit shall not have elapsed. The following effects shall be produced or if the express opposition of the Directorate-General for Insurance and Pension Funds is to be measured:
(a) The political rights corresponding to the shares acquired irregularly cannot be exercised. If they are to be exercised, the corresponding votes shall be void and the agreements shall be impugable in accordance with the provisions of Chapter IX of Title V of the recast of the Law on Capital Societies, approved by the Royal Decree Legislative 1/2010 of 2 July, for which the General Directorate of Insurance and Pension Funds will be entitled.
(b) If necessary, any or some of the special control measures provided for in Articles 160 to 163 shall be adopted on the insurance or reinsurance undertaking.
(c) In addition, the administrative penalties corresponding to the provisions of Chapter II of Title VIII shall be imposed.
2. Where it is established that the holders of a significant holding have an influence which is detrimental to the sound and prudent management of an insurance or reinsurance undertaking, which seriously damages their financial situation, or which have no longer be appropriate, some or some of the measures provided for in the previous paragraph may be adopted, but the suspension of voting rights may not exceed three years. Exceptionally, the Minister for Economic Affairs and Competitiveness, on a proposal from the Directorate-General for Insurance and Pension Funds, may revoke the authorisation.
Article 87. Obligations relating to the reduction of significant participation in an insurance or reinsurance undertaking.
1. Any natural or legal person who has decided to cease to have, directly or indirectly, a significant participation in any insurance or reinsurance undertaking, shall notify it in writing to the Directorate-General for Insurance and Funds of Pensions and shall communicate the estimated amount of the reduction in their participation. This person must also notify the Directorate-General for Insurance and Pension Funds if he has decided to reduce his or her significant participation, so that the percentage of voting rights or capital held is less than twenty, thirty or fifty percent or that you might lose control of the insurer or reinsurer.
This obligation also corresponds to the insurer or reinsurer of which the significant share referred to is diminished or ceased.
2. Failure to comply with this duty of information shall be sanctioned as provided for in Chapter II of Title VIII.
Article 88. Additional reporting obligations.
The insurance entities shall communicate, at the time of filing their periodic information, and also when required for the purpose by the General Directorate of Insurance and Pension Funds, the identity of the shareholders or shareholders that hold significant holdings, the amount of such holdings and any changes in the shareholding. In particular, the data on significant participation shall be obtained from the annual general meeting of shareholders or partners, or from information received pursuant to the obligations arising from the Law 24/1988, of 28 July, of the Securities Market.
CHAPTER VI
Societal Operations
Section 1. th Portfolio Cession
Article 89. Transfer of portfolio between insurance entities.
1. The Minister for Economic Affairs and Competitiveness shall be responsible for authorising the operation of the transfer of portfolio between insurance institutions.
2. The application for authorisation must be settled within six months of its receipt in the Directorate-General for Insurance and Pension Funds, or at the time of completion of the required documentation and, in any case, within the 12 months of the months after their receipt. Where the application is not settled within the preceding period, it may be deemed to be rejected. The authorisation procedure shall be established as well as the consequences of the transfer of the portfolio.
3. The transfer of portfolio of insurance contracts between insurance institutions may be:
(a) Partial, when it comprises a set of policies within one or more branches, grouped in accordance with an objective criterion to be clearly determined in the agreement of transfer with the conditions to be established regulentarily.
b) Total, when it comprises all the policies corresponding to one or more branches. In this case, the authorization of the assignment shall declare the revocation to the entity of the administrative authorization to operate in the branch or branches.
Section 2
Article 90. Structural modifications.
1. It shall be for the Minister for Economic Affairs and Competitiveness to authorise the operations of transformation, merger, global transfer of assets and liabilities or division, involving an insurance undertaking, or any arrangement having economic or financial effects. Legal instruments similar to the previous ones. For these purposes, prior to the granting of the authorization, the Bank of Spain will be asked to report to the Executive Service of the Commission on the Prevention of Money Laundering and Monetary Infringements and to the National Commission of the Stock Market, in the aspects of its competition.
2. The application for authorisation must be settled within six months of its receipt in the Directorate-General for Insurance and Pension Funds, or at the time of completion of the required documentation and, in any case, within the 12 months of the months after their receipt. Where the application is not settled within the preceding period, it may be deemed to be rejected. The remainder of the terms of the authorisation procedure will be established.
3. In any case not expressly regulated in this Law and in its implementing regulation, and in so far as it does not object to it, it shall apply to the transformation, merger, global transfer of assets and liabilities, and the division of insurance institutions, the rules In particular, the provisions of Law No 3/2009 of 3 April 2009 on structural changes in commercial companies, and in the cases resulting from it, the legislation of cooperatives.
4. In so far as it is not expressly regulated in this Law and in so far as it does not object to it, it will apply to the merger, the transfer of assets and liabilities as a whole, and the division of reinsurers into commercial law and, in particular, the provisions of the Law 3/2009, of April 3, on structural modifications of commercial societies.
Article 91. Exceptional assumptions of structural modifications.
Exceptionally, the Minister of Economy and Competitiveness may authorise the transformation, merger, global transfer of assets and liabilities, and the division of insurance entities into cases other than those provided for in regulation where, in the light of the exceptional circumstances in the insurance undertaking which so requests, a more appropriate development of the activity is obtained by the insurance undertaking concerned, provided that this does not detract from its financial guarantees; the rights of the insured and the transparency in the assumption of the obligations derived from insurance contracts.
Section 3.
Article 92. Statutory amendments.
The amendments to the articles of association which must be included in the special administrative register must be communicated to the Directorate-General for Insurance and Pension Funds.
The communication to the Directorate-General for Insurance and Pension Funds shall be made within 10 working days of the adoption of the statutory amendment agreement.
Section 4. First groupings and temporary unions of insurers or reinsurers
Article 93. Economic interest groups and temporary unions of insurance or reinsurance entities.
1. Insurance and reinsurance undertakings may set up economic interest groups and temporary joint ventures, in the latter case exclusively with each other, in accordance with the general legislation governing them and subject to the control of the Directorate-General for Insurance and Pension Funds, in addition to that provided for in that legislation.
2. Exceptionally, the Directorate-General for Insurance and Pension Funds may authorise temporary unions of undertakings in which insurers or reinsurers are integrated with other entities other than when they are treated in the same circumstances. the insurance or reinsurance undertaking applying for the temporary union is made more appropriate to the activity of the institution, provided that this does not undermine its financial guarantees, the rights of the insured and the transparency in the assumption of obligations arising from insurance contracts.
CHAPTER VII
Market Behaviors
Section 1.
Article 94. Premium rates and technical bases.
1. Premium rates should be based on technical bases and statistical information developed in accordance with the provisions of this Law and its implementing rules. They shall be sufficient, according to reasonable actuarial assumptions, to enable the insurance undertaking to satisfy all the obligations arising from insurance contracts and, in particular, to provide adequate technical provisions.
In the calculation of tariffs, within the scope of Council Directive 2004 /113/EC, implementing the principle of equal treatment between men and women in the access to and supply of goods and services, differences of treatment between women and men in the premiums and benefits of insured persons may not be established when they consider sex as a factor of calculation. In no case, the costs related to pregnancy and childbirth shall justify differences in the premiums and benefits of the persons considered individually.
The insurance contracts linked to an employment relationship, in which the differentiation in premiums and benefits are permitted when justified by actuarial factors, are excepted from the provisions of the preceding paragraph.
They must also respect the principles of equity, indivisibility and invariability.
2. The premium rates will respond to the freedom of competition regime in the insurance market without, for these purposes, having the character of restrictive practice of competition the use of common statistics by the institutions. insurers and reinsurers, for the individual processing of their risk premium rates, provided that such statistics are drawn up in accordance with the European Union regulations issued for the implementation of Article 101.3 of the Treaty. Treaty on the Functioning of the European Union.
Article 95. Control of policies, rates and technical documentation of the activity.
1. Contractual conditions and policy models, premium rates and technical bases shall not be subject to administrative authorisation and shall not be subject to systematic referral to the Directorate-General for Insurance and Pension Funds.
However, the General Directorate of Insurance and Pension Funds may require the presentation, provided it is relevant, of the contractual conditions, policy models, premium rates and technical bases. of the insurance institutions, as well as the models of contracts, premiums and any other documentation relating to the reinsurance activity, in order to control whether they respect the actuarial principles, the provisions contained in this Law and their development standards and insurance contract regulators.
The requirement contained in the preceding paragraph may not constitute for the insurer or reinsurer condition prior to the exercise of its activity.
2. Insurance and reinsurance entities shall have at the disposal of the Directorate-General for Insurance and Pension Funds the documentation referred to in this Article at their registered office.
Section 2. Information Duty
Article 96. General duty of information to the policyholder.
1. Before concluding an insurance contract, the insurance undertaking shall inform the taker in writing of the Member State and the authority to which the control of the activity of the insurance undertaking itself is responsible, which shall also be the subject of the insurance contract. be included in the policy and in any other document in which any insurance contract is concluded. The taker shall also be provided with all the information set out in the Law Enforcement Regulation.
2. Before concluding an insurance contract other than life insurance, if the taker is a natural person, or any life insurance contract, the insurer must inform the taker in writing about the law applicable to the contract, on the provisions relating to claims which may be made and on other extremes to be determined in a regulated manner.
3. In life assurance that the taker assumes the risk of the investment, it will be clearly and accurately reported that the amount to be charged depends on fluctuations in the financial markets, which are outside the control of the insurer and whose historical results are not indicators of future results.
In those life insurance modalities in which the policyholder does not assume the risk of the investment, the expected return on the transaction shall be reported considering all costs. The modalities to which it applies as well as the methodology for calculating the expected return will be determined by regulation.
4. Prior to the conclusion of a death insurance or sickness insurance contract, in any of its forms of coverage, the insurance undertaking shall inform the policyholder in writing of the criteria to be applied for the renewal. of the policy and update of the premiums in successive periods, in terms to be determined regulatively.
5. For the duration of the life insurance contract, the insurance undertaking shall inform the taker of the changes in the information initially provided and also of the status of its participation in the contract. benefits, in terms and time limits that are determined to be determined.
6. Such information shall be accessible, provided in the formats and channels appropriate to the needs of persons with disabilities, so that they can effectively access their content without discrimination and on a level playing field.
Section 3. Conflicts Resolution Mechanisms. Other provisions
Article 97. Conflict resolution mechanisms.
1. Disputes that may arise between policyholders, policyholders, beneficiaries, injured parties or persons entitled to any of them with insurance undertakings shall be settled by the competent judges and courts.
2. They may also voluntarily submit their differences to an arbitration decision in the terms of Articles 57 and 58 of the recast text of the General Law for the Defense of Consumers and Users and other complementary laws, approved by the Royal Legislative Decree 1/2007 of 16 November.
3. They may also submit their differences to a mediator in the terms provided for in Law 5/2012 of 6 July on mediation in civil and commercial matters.
4. In any event, and except for those cases where consumer and user protection legislation prevents it, they may also submit to arbitration the questions of dispute, arising or likely to arise, in the field of free provision in accordance with law, in the terms of Law 60/2003, of December 23, of Arbitration.
5. In the terms provided for in the current regulations on the protection of clients of financial services, contained in Law 44/2002, of 22 November, of Measures of Reform of the Financial System, and in its norms of development, the entities insurance companies will be obliged to address and resolve complaints and complaints that policyholders, beneficiaries, beneficiaries, injured parties or rights holders of any of them may submit, related to their interests and rights legally recognised. For these purposes, institutions must have a customer service department or service in charge of addressing and resolving complaints and complaints.
Article 98. Advertising.
1. The insurance companies may advertise their services through all the means of communication, in accordance with the provisions of Law 34/1988 of 11 November, General of Advertising, and provisions for development, as well as to the precise rules for their adaptation to the insurance companies set out in the Implementing Regulation of this Law.
2. The Directorate-General for Insurance and Pension Funds may approve by means of circulars, in accordance with Article 17.2, special rules on the advertising of the activities referred to in this Law.
3. The Directorate-General for Insurance and Pension Funds shall exercise the right of action in order to obtain the cessation or rectification of advertising which is contrary to the provisions referred to in the preceding paragraphs, without prejudice to the penalties applicable in accordance with Chapter II of Title VIII.
Article 99. Protection of personal data.
1. The insurance institutions may treat the data of the policyholders, insured persons, beneficiaries or injured parties, as well as their successors without the need for their consent to the sole purpose of guaranteeing the full development of the insurance contract and the fulfilment of the obligations set out in this Law and its development provisions.
The processing of the data of the persons referred to above for any purpose other than those specified in the preceding paragraph shall have the specific consent of the persons concerned.
2. An insurance institution may treat the data relating to its health without the consent of the data subject in the following cases:
(a) For the determination of the health care that would have been provided to the injured party, as well as the compensation to be provided in their case, when they are to be satisfied by the entity.
(b) For the appropriate payment to healthcare providers or the reimbursement of the insured or their beneficiaries of the health care costs that would have been incurred in the field of an insurance contract health.
The processing of the data will be limited in these cases to those who are indispensable for the payment of the compensation or the benefit derived from the insurance contract. The data may not be processed for any other purpose, without prejudice to the reporting obligations set out in this Act.
The insurance companies must inform the insured, the beneficiary or the injured third party about the treatment and, where appropriate, the transfer of the health data, in the terms provided for in Article 5 of the Law. Organic 15/1999, of 13 December, of Protection of Data of Personal Character except that, in the case of collective insurance, such an obligation is assumed contractually by the taker.
3. Insurance institutions which are part of a group for the purposes referred to in Title V may exchange, without the consent of the person concerned, the personal data necessary for the performance of the of the supervisory obligations set out in this Law. The data may not be used for any other purpose if it is not satisfied with the specific consent of the data subject.
4. Insurance institutions, or, where appropriate, reinsurers, may communicate to their reinsurer entities, without the consent of the insured, insured, beneficiary or injured third party, the data that is strictly necessary for the conclusion of the reinsurance contract in accordance with the terms laid down in Article 77 of Law 50/1980 of 8 October of the Insurance Contract or the performance of the related operations, with the understanding of the conduct of statistical studies or actuarial, risk analysis or research for your clients, as well as any other related activity or derived from the reinsurer activity.
The transfer of such data for any purpose other than those set out in the preceding paragraph shall require the consent of the data subject.
5. Entities which develop on behalf of insurance entities activities subject to externalisation shall be considered to be in charge of the treatment and must be subject to the arrangements laid down for them in Organic Law 15/1999 of 13 December 1999. December, and its development regulations.
6. In the case of the sale of the portfolio provided for in this Law, as well as in the case of conversion, merger or division of insurance entities to which it relates, no transfer of data shall occur, without prejudice to compliance by the responsible of the provisions of Article 5 of Organic Law 15/1999 of 13 December.
7. Insurance institutions may establish common files containing personal data for the settlement of claims and actuarial statistical collaboration in order to allow for the pricing and selection of risks and the preparation of studies of the insurance technique. The transfer of the data will not require the prior consent of the affected person, but if the communication to this one of the possible cession of his personal data to common files for the purposes indicated, with express indication of the responsible one, in order to the rights of access, rectification, cancellation and opposition provided for in the law may be exercised.
Common files may also be established to prevent fraud in insurance without the need for the consent of the affected person. However, in these cases, the communication to the affected person, in the first introduction of his data, who is responsible for the file and the forms of exercise of the rights of access, rectification, cancellation and opposition, will be necessary.
In any case, data relating to health may only be treated with the express consent of the affected person.
8. In the information to be provided to the policyholder in accordance with Article 96, it must also be incorporated which, in relation to the processing of his personal data, provides for Article 5 of the Organic Law 15/1999, 13 of December.
9. An insurance institution shall, within 10 days of the cancellation of the data which had been provided to it before the conclusion of a contract, be cancelled unless it has been concluded, unless it has the right to reply to the contract. specific consent of the data subject to be expressed if it were health-related data.
Article 100. Fight against insurance fraud.
Insurance entities shall take effective measures to prevent, prevent, identify, detect, report and remedy fraudulent conduct relating to insurance, whether they are taken individually or through their participation. in common files referred to in Article 99.7.
The insurance companies will also be able to sign collaboration agreements with the Ministry of the Interior and the State Security Corps and Forces, as well as with the police and police officers of the Autonomous Communities that they have similar functions, in order to collaborate, each in the field of their competences, in the prevention and investigation of fraud in insurance. In any event, the exchange of information that could be carried out under these agreements will respect the provisions of the Organic Law 15/1999 of 13 December.
CHAPTER VIII
Special solvency regime
Article 101. Scope of application.
1. Insurance companies domiciled in Spain which do not carry out activities under the right of establishment or freedom to provide services in other Member States or in third countries may benefit from this special scheme creditworthiness if they prove that they have fulfilled all the conditions required for the three years immediately prior to the application and do not anticipate exceeding the amounts expected in the next five years.
When insurance companies under this special scheme exceed one of the amounts listed in a regulation for three consecutive years, they will automatically be subject to the general scheme from the fourth exercise.
2. In addition, they may benefit from the special solvency arrangements, in the form in which they are regulated, insurance institutions domiciled in Spain which do not carry out activities under the right of establishment or free movement provision of services in other Member States or in third countries, which are in any of the following situations:
(a) Social welfare insurance funds which have not been authorised to operate by classes and which are recognised in their contributions and benefits regulations as a financial-actuarial system, through which the benefit to obtain by the mutualist is in direct relation to the contributions actually realized and imputed and that, the total results to the close of the exercise, positive or negative, once covered the legal and solvency obligations of the entity, are transferred to the provisions of the active mutualists.
(b) Guarantee only benefits in the case of death, where the amount of these benefits does not exceed the average value of the funeral costs for a death or where these benefits are served in kind.
3. Insurance institutions belonging to a group may only benefit from the special solvency regime if all of them individually meet the requirements for the eligibility of such a scheme.
4. The decision of the Directorate-General for Insurance and Pension Funds shall indicate the exercise from which the institution is eligible for the special solvency regime.
5. Institutions applying for administrative authorisation for the exercise of the activity shall not be eligible for this special scheme at the time of the initial authorisation for the exercise of the insurance business.
Article 102. Conditions for the exercise of the entities subject to the special scheme.
The entities referred to in this Chapter shall adjust their actions to the provisions of this Law that are applicable to them and to their implementing rules, with the following particularities:
(a) The administrative authorisation shall not cover the exercise of activities under the right of establishment or freedom to provide services in the European Union.
(b) Social capital shall be as required by Articles 33 and 34.
(c) The minimum capital requirement shall be in accordance with the requirements of Article 78.
(d) The requirements and arrangements applicable to the valuation of technical provisions, investments, own funds and Solvency Capital Requirement shall be in accordance with the procedure to be determined by regulation.
e) Reglamentarily will determine the requirements of the governance system for this type of entity.
(f) The public information requirements for the financial and solvency situation of these entities shall, in so far as they apply to them, be those laid down in Chapter III of Title III of this Law and in their regulatory development.
CHAPTER IX
Community coinsurance. Limited reinsurance
Article 103. Community co-insurance scheme.
1. Insurance undertakings participating in a Community co-insurance operation in the capacity of an undertaking as well as its activities as such co-insurers shall be governed by the provisions applicable to the insurance contract of large companies. risks.
2. Where an insurance contract may be classified as Community co-insurance, the obligations imposed on insurance undertakings operating under the freedom to provide services as provided for in Articles 57 to 59 shall apply. only to the opening entity of the operation.
3. The Spanish entities participating in Community co-insurance operations shall have sufficient statistical data on the operations in which they participate in each of the Member States.
Article 104. Technical provisions of Community co-insurance.
If a Spanish insurer participates in a Community co-insurance operation it shall calculate the technical provisions corresponding to its participation in the operation in accordance with the provisions of this Law and the rules they develop it, but the amount of such technical provisions shall be at least equal to the amount calculated in accordance with the rules to which the operator of the operation is subject.
Article 105. Limited reinsurance.
Insurance or reinsurance entities that conclude contracts or perform limited reinsurance activities shall have sufficient means to identify, measure, monitor, manage, monitor and report appropriately. risks arising from such contracts or activities. Specific provisions may be adopted in respect of the requirements for the exercise of limited reinsurance activities.
CHAPTER X
Conditions relating to the exercise of the activity by branches and subsidiaries of third-country insurance and reinsurance entities
Article 106. Financial guarantees for branches of insurance companies and reinsurers domiciled in third countries.
1. Branches of insurers and reinsurers domiciled in third countries shall carry out their activities subject to the provisions laid down in this Law and their implementing rules for entities domiciled in Spain, except for concerning the activity under the right of establishment and the freedom to provide services in the European Union, which shall in no case be applicable to them, so that their risks must always be located and their commitments assumed in Spain.
2. By way of derogation from the above paragraph, and without prejudice to agreements concluded by the European Union with third countries, the rules to be specified shall be taken into account.
Article 107. Arrangements for branches of entities domiciled in third countries, authorised in several Member States.
1. By way of derogation from Article 106, and without prejudice to agreements concluded by the European Union with third countries, to branches in Spain of entities domiciled in third countries which in turn have branches in other States Member States may apply the rules to be determined.
2. For the purposes of applying this scheme, the institution must apply to the Directorate-General for Insurance and Pension Funds and to the supervisory authorities of the other Member States in which it has branches, with a reasoned proposal for the the supervisory authority to which it wishes to submit, which shall be responsible, hereinafter, for verifying the solvency of all branches authorised in the European Union for the whole of its operations.
The approval of the application will require the agreement of all the supervisory authorities involved and the scheme can only be applied from the date on which the supervisory authority chosen, if not the Spanish, notifies to the Directorate-General for Insurance and Pension Funds its commitment to check the solvency of all branches established in the European Union for all its operations.
3. The Directorate-General for Insurance and Pension Funds shall provide the supervisory authority with responsibility for the supervision of the solvency, the necessary information in respect of the branch established in Spain, in order to enable it to verify the global solvency.
4. The application of this scheme may be terminated by decision of the Directorate-General for Insurance and Pension Funds or any of the other supervisory authorities involved. The termination of the application of the scheme shall affect all branches authorised in the European Union. For these purposes, the Directorate-General for Insurance and Pension Funds shall communicate its decision to the other supervisory authorities involved and, if the decision has been taken by another supervisory authority involved, the decision shall be taken by the Commission. termination of the application of the scheme shall take place from the date on which the Directorate-General for Insurance and Pension Funds receives the communication from the supervisory authority which has adopted the decision.
5. For the purposes of applying Articles 156, 157 and 160.1.a), the supervisory authority responsible for verifying the overall solvency shall be equal, in respect of its powers for the whole of the branches, to the supervisory authorities of the entities domiciled in the European Union.
6. In the event of revocation of the authorisation granted to the branch established in Spain, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authorities of the other Member States.
The Directorate-General for Insurance and Pension Funds, after receipt of the communication of revocation of the authorisation granted to a branch established in another Member State, shall take the appropriate measures, and if the revocation It shall be justified by insufficient overall solvency and shall revoke the authorisation granted to the branch in Spain.
Article 108. Equivalence of the solvency regime of reinsurers in third countries.
1. It shall be assessed whether the solvency regime which a third country applies to the reinsurance activities of entities whose registered office is located in that third country is equivalent to that established in the European Union, in accordance with the following:
(a) This equivalence shall be determined by the European Commission in accordance with the criteria it specifies, with the assistance of the European Insurance and Occupational Pensions Authority.
The list of equivalent prudential regimes will be published by the European Insurance and Occupational Pensions Authority on its website and will be kept up to date. The decisions of the Commission shall be reviewed regularly in order to be updated to take account of any substantial changes to the supervisory arrangements of the European Union and the third country supervisory regime.
(b) Where all the criteria set out in subparagraph (a) are not met, the equivalence may be determined on a temporary basis by the European Commission, with the assistance of the European Insurance and Pensions Authority Retirement, in accordance with the criteria to be regulated.
The list of third countries for which a temporary solvency regime has been established will be published by the European Insurance and Occupational Pensions Authority on its website and will maintain it. updated. Commission decisions shall be reviewed regularly in order to be updated with the progress reports made by the third country, which shall be submitted to the Commission annually for evaluation with the assistance of the Authority. European Insurance and Occupational Pensions.
The temporary equivalence regime shall be five years from 1 January 2016 or end on the date on which, in accordance with paragraph (a), the prudential regime of that third country is considered to be equivalent, if the latter is Date is above. That period may be extended by a maximum of one year when it is necessary for the European Insurance and Occupational Pensions Authority and the Commission to carry out the assessment of equivalence for the purposes of paragraph (a).
2. Where the solvency regime of a third country is considered equivalent, the reinsurance contracts concluded with reinsurer entities whose registered office in that third country shall have equal consideration to the contracts of reinsurance concluded with a reinsurer entity authorised in accordance with the provisions of this Act.
TITLE IV
Supervision of insurance and reinsurance entities
CHAPTER I
General principles
Article 109. Subjective and objective scope of monitoring.
1. The Directorate-General for Insurance and Pension Funds shall exercise its supervisory functions over the insurance and reinsurance entities authorised to operate in Spain, including the activities carried out through branches and under freedom to provide services, as well as the other entities and subjects referred to in Article 2.
2. The supervision shall consist of the continuous verification of the correct exercise of the insurance or reinsurance business, the financial situation, the conduct of the market and the compliance of the supervisory rules by the institutions. insurers or reinsurers.
Article 110. Proportionality of the actions of the Directorate-General for Insurance and Pension Funds.
1. Without prejudice to the main purpose of this Act, as set out in Article 1, the Directorate-General for Insurance and Pension Funds shall duly consider the effects of its decisions on the stability of the financial system, in particular in emergency situations, taking into account the information available at the appropriate time. In periods of great instability, it will also take into account the possible pro-cyclical effects of its decisions.
2. Supervisory actions shall be carried out in a manner proportionate to the nature, complexity and extent of the risks inherent in the business of insurance or reinsurance entities.
Article 111. Transparency of supervisory action.
1. The Directorate-General for Insurance and Pension Funds shall exercise the supervision of insurance and reinsurance entities in a transparent manner and duly ensure the protection of confidential information.
2. The Directorate-General for Insurance and Pension Funds may draw up technical guidelines for the entities subject to its supervision, indicating the criteria, practices or procedures it considers appropriate for compliance with the rules of the monitoring. These guidelines, which must be made public, may include the criteria that the Directorate-General for Insurance and Pension Funds itself will follow in the exercise of its supervisory activities.
To this end, the Directorate-General for Insurance and Pension Funds may make its own, and transmit as such, as well as develop, supplement or adapt the guidelines which, addressed to the subjects subject to its supervision, approve international bodies or committees active in the regulation or supervision of insurance or pension schemes.
Article 112. Convergence of supervisory practices.
In the framework of the Community policies on stability and financial integration, the Directorate-General for Insurance and Pension Funds shall take into account, in an appropriate manner, the European dimension of the supervision of institutions. insurers and reinsurers by means of convergence in supervisory instruments and practices.
For these purposes, the Directorate-General for Insurance and Pension Funds will participate in the activities of the European Insurance and Occupational Pensions Authority.
Article 113. General powers of supervision.
1. In the exercise of its supervisory functions of insurers and reinsurers and in the terms laid down in this Law and in the other rules governing private insurance, the Directorate-General for Insurance and Pension Funds shall have the following faculties:
(a) Require all information that is necessary for the purposes of supervision, statistics and accounting, in accordance with Article 114.
b) Access any document in any form and receive a copy of it.
c) Require any person to forward information within the reasonable time limit set by the General Directorate of Insurance and Pension Funds and, if necessary, quote and make a statement to a person to obtain information.
d) Perform the necessary inspections and checks.
e) Require the telephone and data traffic records that you have.
(f) Requiring insurance and reinsurance entities and members of their management or management bodies or persons to monitor them, the provision of reports from independent experts, auditors of their bodies, internal control or compliance verification.
g) Develop, by way of supplementary to the calculation of the Solvency Capital Requirement and where appropriate, the quantitative instruments necessary in the framework of the supervisory process, in order to assess the capacity of the insurance companies and reinsurers to deal with possible events or future changes in economic conditions which may have a negative impact on their overall financial situation. It may also require that the entities carry out the relevant tests.
h) Adopt the necessary preventive and corrective measures to ensure that insurance and reinsurance entities comply with the regulatory standards of their business that they must comply with.
i) to make public any measure taken, as a result of non-compliance with the applicable rules, unless its disclosure could put the insurance market at serious risk or cause disproportionate harm to the persons affected.
(j) How many other functions are necessary for the exercise of financial supervision, supervision of market conduct and supervision by inspection in the area of entities and groups.
2. The above powers may also be exercised in respect of the outsourced activities of the insurance and reinsurance undertakings, in accordance with the rules laid down in the rules and regulations of the European Union. application.
3. The supervision actions shall be carried out by the officials belonging to the Higher Body of State Insurance Inspectors, with the collaboration of officials belonging to the technical bodies of the General Administration of the State, as well as computer expert officials.
4. Without prejudice to the supervisory powers listed in the preceding paragraphs, the Directorate-General for Insurance and Pension Funds may initiate the supervision procedure by inspection in accordance with the terms laid down in Chapter IV of this Regulation. this title.
5. In the absence of special rules of procedure, Law No 30/1992 of 26 November of the Legal Regime of Public Administrations and of the Common Administrative Procedure shall apply.
Article 114. Information to be provided for supervisory, statistical and accounting purposes.
1. Insurance and reinsurance entities shall provide the Directorate-General for Insurance and Pension Funds with the necessary documentation and information for the purposes of the exercise of the supervisory function. Such documentation and information shall include at least the information necessary for the actions in the framework of the monitoring process provided for in Article 117.2.
Additionally, insurance and reinsurance entities will provide the General Directorate of Insurance and Pension Funds with documentation and information for statistical and accounting purposes.
2. The Directorate-General for Insurance and Pension Funds may determine the nature, extent and format of the information referred to in paragraph 1, the presentation of which is required either periodically or in cases where situations arise. defined in advance, either by individual requirements or in the course of inspection activities.
The Directorate-General for Insurance and Pension Funds may also require any information relating to contracts held by intermediaries or contracts concluded with third parties. It may also request information from auditors in accordance with the provisions of the regulatory regulatory framework for the audit of accounts, actuaries and other external experts of the institutions.
3. The information referred to in paragraphs 1 and 2 shall include qualitative or quantitative data, whether historical, current or anticipated data, and whether they originate from internal or external sources, or any appropriate combination thereof, and shall be adjusted to the principles determined by regulation.
4. Insurance and reinsurance entities shall have appropriate systems and structures in place to comply with the requirements set out in this Article as well as a written policy, approved by the institution's management body, which ensure the continued adequacy of the information presented.
Article 115. Supervision of insurance and reinsurance entities of the European Union operating in Spain under the right of establishment or freedom to provide services.
1. The Directorate-General for Insurance and Pension Funds shall supervise the activity of insurance and reinsurance undertakings in other Member States operating in Spain under the right of establishment or freedom to provide services, in compliance with the provisions applicable to them by reason of general interest and those of Chapter VII of Title III. For these purposes, they shall be subject to the supervision procedure by inspection of Chapter IV of this Title.
2. If the Directorate-General for Insurance and Pension Funds has reason to consider that the activities of an insurance or reinsurance undertaking operating through a branch or in the freedom to provide services in Spain could affect its soundness It shall inform the supervisory authorities of the home Member State.
3. Where an insurance or reinsurance undertaking authorised in another Member State carries out its activity in Spain through a branch, the supervisory authority of the home Member State may, by itself or through the persons concerned, carry out its activities in Spain. designated for this purpose, after information to the Directorate-General for Insurance and Pension Funds, to the on-the-spot verification of the information necessary to enable the institution to carry out financial supervision.
The General Directorate of Insurance and Pension Funds may participate in such verification.
Article 116. Supervision of Spanish branches established in another Member State.
1. Where an insurance or reinsurance undertaking authorised in Spain carries on its business in another Member State through a branch, the Directorate-General for Insurance and Pension Funds may, by itself or by means of persons, designated for this purpose, after information to the supervisory authority of the host Member State, to the on-the-spot verification of the information necessary to enable the institution to carry out financial supervision.
The authorities of the host Member State concerned may participate in such verification.
When the Directorate-General for Insurance and Pension Funds communicates to the supervisory authorities of the host Member State that it intends to carry out an inspection in accordance with this Article, and where it is It will be prohibited from exercising its right to carry out such an inspection, the Directorate-General for Insurance and Pension Funds may refer the matter to the European Insurance and Occupational Pensions Authority and request its assistance. This authority shall be entitled to participate in the inspections when they are jointly carried out by two or more supervisory authorities.
2. If the Directorate-General for Insurance and Pension Funds is informed by the supervisory authority of another Member State that a Spanish insurer or reinsurer operating in that State through a branch or in a free supply of services, carries out activities that may affect its financial soundness, will verify that the entity observes the prudential principles that are required to do so.
CHAPTER II
Financial Supervision
Article 117. Content of financial supervision.
1. Financial supervision shall consist, in particular, of the verification, for the whole of the activities of the supervised entity, of the government system, of the solvency, of the establishment of technical provisions, of the assets and of the funds eligible own, in accordance with the applicable rules, as well as in the verification of compliance with the remaining obligations imposed in this Law and its implementing rules.
In addition, in the case of insurance undertakings which guarantee the provision of a service, supervision shall also be extended to the technical means at the disposal of the entities to carry out the operations which have been carried out. committed to be performed.
The monitoring of the financial situation will be based on a forward-looking and risk-oriented approach.
2. The Directorate-General for Insurance and Pension Funds shall review and evaluate the strategies, processes and information procedures established by the insurance and reinsurance entities in order to comply with the provisions contained in this Regulation. Law and other rules governing private insurance.
The review and evaluation shall include the analysis of the legal, technical and economic-financial situation of the entity and, in particular, compliance with the requirements laid down in the implementing regulation of this Law on solvency, technical provisions, capital, investment rules, own funds and internal models where they are used.
3. The Directorate-General for Insurance and Pension Funds shall assess the adequacy of the methods and practices of insurance and reinsurance entities intended to determine possible events or future changes in economic conditions. may have a negative impact on the overall financial situation of the entity concerned. It will also assess the ability of entities to withstand such possible events or future disruptions of economic conditions.
4. Insurance and reinsurance entities shall remedy the deficiencies or deficiencies identified in the development of supervision.
5. Reviews and evaluations shall be carried out on a regular basis. The minimum scope of reviews and assessments shall be established in accordance with the nature, size and complexity of the activities of the insurance or reinsurance undertaking concerned.
CHAPTER III
Market Conduct Monitoring
Article 118. Content of market conduct monitoring.
Market conduct oversight will ensure transparency and orderly development of the insurance market, the freedom of policyholders to decide on the hiring of insurance and the insurance company with which they hire them. and, in general, the protection of policyholders, policyholders and beneficiaries by promoting the dissemination of all information necessary to ensure the achievement of those purposes, in accordance with the provisions of this Law and its implementing rules.
The action of the Directorate-General for Insurance and Pension Funds shall be without prejudice to the possible qualification of such practices as restrictive of competition by the competition authorities, in accordance with the provided for in Articles 1, 2 and 3 of Law 15/2007 of 3 July of the Defence of Competition.
Article 119. Administrative protection.
1. The protection of users in the field of private insurance is exercised by the General Directorate of Insurance and Pension Funds, in the terms provided for in this Law, in Law 44/2002, of 22 November, of Measures of Reform of the System Financial, and in its development standards.
2. The Directorate-General for Insurance and Pension Funds will resolve complaints and complaints submitted by policyholders, policyholders, beneficiaries, injured parties and associations, which are related to their interests and legal rights. recognised and derived from alleged non-compliance by the claimed entities in the rules of transparency and protection of customers or good practices in the insurance market.
The General Directorate of Insurance and Pension Funds will resolve complaints and complaints filed through reasoned reports, which will in no way have an administrative act of recourse.
3. The lack of attention to the requirements of the Directorate-General for Insurance and Pension Funds arising from the reports issued by the complaints service of the Directorate-General for Insurance and Pension Funds will give rise to the cases, the imposition of the administrative penalties corresponding to the offences referred to in Title VIII or the prohibition laid down in Article 120.
4. Where there is evidence of repeated or serious breaches of the rules of transparency and protection of customers or of good practices in the insurance market by an insurance undertaking, the Directorate-General for Insurance and Pension funds shall take the appropriate measures in the framework of a supervisory procedure.
Article 120. Prohibition of policies and tariffs.
The Directorate-General for Insurance and Pension Funds may prohibit by resolution the use of policies and rates of premiums which do not comply with Articles 94 and 95. For these purposes, the corresponding administrative procedure in which the suspension of the use of the policies or the premium rates may be agreed, as a provisional measure, may be agreed.
Prior to the initiation of the administrative procedure in which the said prohibition is agreed, the aforementioned Directorate-General may require the insurance institution to accommodate its policies or premium rates to the provisions of the in the cited articles.
CHAPTER IV
Monitoring by Inspection
Article 121. Inspection actions.
1. For the proper exercise of the supervisory tasks assigned to it, the Directorate-General for Insurance and Pension Funds may exercise the authority in the terms provided for in this Chapter. Supervision may be carried out by means of the inspection procedure.
2. The inspection may cover market practices, the legal, technical, economic-financial and solvency situation, as well as the conditions under which they exercise their marketing activity and practices, in order to ensure that the Directorate-General Insurance and Pension Funds can adequately perform the tasks assigned to them. It may be carried out on a general basis or on specific questions.
Article 122. Subjects of the inspector activity.
The following entities and people may be inspected:
(a) Insurance and reinsurance entities authorised to operate in Spain, including activities carried out through branches and under the freedom to provide services.
(b) Other entities and subjects referred to in Article 2.
c) Entities that are presumed to be part of a group of insurance entities.
(d) Those who carry out operations that can, in principle, qualify as insurance, to check whether they exercise the activity without prior administrative authorisation.
e) Those who perform outsourced functions of insurance and reinsurance entities.
Article 123. Inspector staff.
1. The inspection activities shall be carried out by the officials of the Higher Body of State Insurance Inspectors. In the performance of their duties they shall have the status of public authority.
2. Officials belonging to the technical bodies of the General Administration of the State, as well as computer experts, will only be able to collaborate in the inspection actions in the terms to be determined in the development of this Law.
Article 124. Inspection powers.
1. For the proper performance of their duties, the staff inspector may examine the books, records and documents, whatever their support, including computer software and magnetic, optical or other files relating to them. to the operations of the institution, in terms of its regulatory development.
2. They may also request that a copy be submitted to them for the purposes of their incorporation in the inspection report, and the insurance undertaking shall be obliged to do so and to provide them with the maximum facilities for the performance of their duties. If the person or entity inspected has reasonable grounds, he/she may object to the delivery of a copy of the documentation by stating his reasons in writing for incorporation in the inspection report.
3. Inspection measures may be carried out without distinction at the registered office of the subject inspected, in any of its branches, where he or she carries out all or part of his activity at the premises where the services are provided, insurance and reinsurance functions or activities where they are outsourced, and in the offices of the Directorate-General for Insurance and Pension Funds where the items on which they are to be carried out may be examined.
Officials of the State Insurance Inspectorate shall have access to the registered office and branches, premises and offices in which activities are carried out by the person inspected, by the entity or by the entities that are presuman are a group. In the case of the constitutionally protected domicile, and in the event of opposition, they shall specify the relevant judicial authorisation and, in the case of other departments, that of the Directorate-General for Insurance and Pension Funds.
4. The inspection of market practices may be initiated without prior notification or identification of the officials acting, assuming the status of mere users or persons interested in the products or services offered, for the purpose of be aware as closely as possible of the actual conditions of such practices, as set out in the relevant report.
Article 125. Documentation of the inspection actions.
1. Inspection measures shall be documented in inspection reports, which may be final or preliminary.
Prior inspection reports shall be lifted when the inspection measures are sufficient to deal with the inspection procedure by inspection, if the wait until the final report is drawn up In danger the protection of the interests of the insured persons or the attitude of the entity or person inspected or other concurrent circumstances in the instruction of the inspection so advise.
2. Irrespective of the content and form to be determined by regulation, in the case of inspection, it shall be reflected where appropriate:
(a) The facts established by the acting inspector that are relevant for the purposes of the legal classification of the conduct or activity inspected.
b) The legal, technical, economic and financial situation arising from the actions carried out by the inspection.
(c) The causes which could determine the revocation of the authorisation, the administrative dissolution, the adoption of special control measures, the adoption of a recovery plan or the short-term financing plan, the an increase in the amount of technical provisions, the requirement for additional mandatory solvency capital and the imposition of administrative penalties.
(d) The proposal to revoke the authorisation, the administrative dissolution of the insurance undertaking, the adoption of special control measures, a recovery plan or short-term financing in cases of deterioration financial or the increase in the amount of technical provisions or the requirement for additional mandatory solvency capital.
3. They shall form part of the inspection report, for all the purposes, their annexes and measures extended by the inspector during his/her checking activity.
4. The inspection records are of a public nature and shall provide proof of the facts of the inspection recorded and verified by the acting inspector, unless otherwise proven.
Article 126. Supervision procedure by inspection.
1. The administrative oversight procedure for inspection shall be in accordance with the following procedures:
(a) It shall be initiated by agreement of the Directorate-General for Insurance and Pension Funds in which the aspects to be inspected shall be determined.
(b) The inspection measures prior to the lifting of the minutes shall, from the agreement of the Directorate-General for Insurance and Pension Funds for which the inspection is ordered, have the duration specified for the appropriate compliance with the command contained in the inspection order.
(c) The inspection report shall be notified to the person concerned, who shall have 15 days to make the allegations and to propose any evidence which he considers relevant in defence of his right to the Directorate-General for Insurance and Pension Funds. If evidence is proposed and they are admitted, they must be carried out within a period of not more than 10 days.
d) If, following the arguments of the entity concerned and, where appropriate, the practice of the test, further action is taken to instruct the administrative supervisory procedure for inspection, they shall be entered in a record additional and will be given to that new hearing procedure for eight days.
e) In the light of the action, the Directorate-General for Insurance and Pension Funds will issue a resolution that will terminate the procedure.
(f) Where the inspection report contains a proposal for an increase in the amount of technical provisions, the requirement for additional mandatory solvency capital, for the adoption of special control measures, for a plan recovery or short-term financing in cases of financial deterioration, withdrawal of the authorisation or administrative dissolution of the insurance or reinsurance undertaking, the decision shall, if there is a place, the measures the recovery or financing plan to be used for the purposes of the short term, shall initiate the procedure for the administrative dissolution of the insurance or reinsurance undertaking, or for revocation of the administrative authorisation.
2. The time limit for making a decision shall be six months after the minutes have been notified. In the case referred to in paragraph 1 (d), this period shall be taken into account on the basis of the notification of the supplementary minutes.
CHAPTER V
Duty of professional secrecy and use of confidential information
Article 127. Duty of professional secrecy.
1. With the exception of data entered in the administrative register referred to in Article 40, the data, documents and information held by the Directorate-General for Insurance and Pension Funds under the terms of the duties entrusted to it this Act will have a reserved character.
2. All persons carrying out or carrying out an activity in the management and supervision of insurance and reinsurance undertakings, as well as those entrusted to them with duties in respect of such entities, shall be obliged to to keep professional secrecy on the confidential information which they receive in the course of such a function. Failure to comply with this obligation shall determine the criminal and other responsibilities provided for by the laws. Such persons shall not be able to provide a statement or testimony or to publish, communicate or display any data or documents reserved, even after they have ceased their service, except for express permission granted by the Directorate-General for Insurance and Pensions which may not in any case refer to personal data. If such permission is not granted, the person concerned shall keep the secret and shall be exempt from the liability.
3. The following assumptions are exempted from the obligation of secrecy set out in the previous paragraph:
(a) When the data subject expressly consents to the dissemination, publication or communication of the data.
b) The publication of aggregated data for statistical purposes, or communications in summary or aggregate form so that individual entities cannot be identified even indirectly.
(c) The information required by the competent judicial authorities in criminal proceedings.
(d) Information which, in the context of the proceedings against which an insurance or reinsurance undertaking is submitted, is required by the judicial authorities, provided that they do not deal with third parties interested in the rehabilitation of the entity.
(e) Information which, in the context of administrative or legal proceedings in which administrative decisions are contested in the exercise of the powers of supervision of the activities of the insurers and reinsurers are required by the competent administrative or judicial authorities.
f) The information required by the parliamentary committees of inquiry, in the terms established by the parliamentary regulations. To this end, the Directorate-General for Insurance and Pension Funds may request the competent bodies of the House to hold a secret session or to apply the procedure laid down for access to the subject classified.
The judicial authorities, as well as the members of a Parliamentary Committee of Inquiry who receive the reserved information, will be required to take the appropriate measures to ensure their reservation.
4. The provisions of this Article are without prejudice to the powers of inquiry conferred on the European Parliament in Article 226 of the Treaty on the Functioning of the European Union.
Article 128. Exchange of confidential information.
1. By way of derogation from the foregoing Article, confidential information may be provided to the persons and entities listed below to facilitate the fulfilment of their respective functions, which shall be in turn obliged to the duty of professional secrecy in accordance with the provisions of that Article:
(a) The competent authorities for the supervision of insurance institutions and other financial institutions in the other Member States.
(b) The Banco de España, the Comisión Nacional del Mercado de Valores and the other entities or bodies responsible for the supervision of the accounts and the solvency of financial institutions.
c) The Insurance Compensation Consortium in the exercise of its liquidator functions of insurance and fund-of-guarantee entities as well as in relation to the information necessary for the verification of the expected surcharges Article 18 of the Recast Text of the Legal Statute of the Insurance Compensation Consortium, approved by the Royal Legislative Decree 7/2004, of October 29.
(d) The authorities responsible for the fight against money laundering.
e) The auditors of the insurance and reinsurance entities and their groups, and the Accounting and Audit Institute of Accounts.
2. The confidential information may also be supplied to the Tax Administration in accordance with Articles 93 and 94 of Law 58/2003 of 17 December, General Tax, after an indomitable authorization from the Minister of Economy and Competitiveness.
3. Confidential information may also be received from the persons and entities referred to in paragraph 1 above. The confidential information received, as well as those obtained by the inspection of branches of Spanish insurance companies and reinsurers established in other Member States, may not be the subject of the communication referred to in Article 3. that paragraph, except in the express agreement of the competent authority which has communicated the information or the competent authority of the Member State of the branch, respectively.
Article 129. Cooperation with the European Insurance and Occupational Pensions Authority.
The Directorate-General for Insurance and Pension Funds shall without delay provide the European Insurance and Occupational Pensions Authority with all the information necessary for it to fulfil its obligations.
Article 130. Cooperation agreements with third countries.
1. Cooperation agreements providing for the exchange of information with the authorities of third countries competent for the supervision of insurance undertakings, reinsurers and other financial institutions or with other authorities, bodies, natural or legal persons, of third countries, shall require that the information provided is protected by guarantees of professional secrecy at least equivalent to those referred to in Article 127, that there is reciprocity and that the the exchange of information is aimed at the performance of the supervisory tasks of the such authorities, bodies, natural or legal persons.
2. The Directorate-General for Insurance and Pension Funds may transfer personal data to third countries in accordance with Title V of the Organic Law 15/1999 of 13 December on the Protection of Personal Data.
3. Where the information originates in another Member State, it shall not be disclosed without the express agreement of the competent authorities which provided it and, where appropriate, only for the purpose for which the competent authorities have given their origin. compliance.
4. Without prejudice to the above paragraphs, the Directorate-General for Insurance and Pension Funds may refuse to provide information to the competent authorities of third countries where the provision of such information is detrimental to the the sovereignty, security or public order, or have been initiated before the Spanish authorities judicial proceedings or dictated by those authorities to the same facts and against the same facts responsible for which the information is requested.
TITLE V
Monitoring of insurance and reinsurance entity groups
CHAPTER I
General Group Provisions
Article 131. Definitions and rules on the supervision of groups of insurance and reinsurance entities.
1. For the purposes of this Title, the following definitions shall
:(a) Parent entity: The entity defined as such in Article 9, as well as any entity that, in the judgment of the supervisory authorities, effectively exercises a dominant influence on another entity.
(b) subsidiary entity: The entity defined as such in Article 9, as well as any entity on which, in the opinion of the supervisory authorities, a parent entity effectively exercises a dominant influence.
(c) Participation: The one defined as such in Article 9, as well as the direct or indirect possession of voting rights or capital in an entity on which, in the opinion of the supervisory authorities, is effectively exercised a noticeable influence.
(d) Participating entity: a parent entity or other entity holding a holding, or any entity linked to another entity for being subject to a single address or because its administrative, management or supervisory bodies, are mostly composed of the same people.
(e) Related entity: An entity that is a subsidiary or another entity in which a holding is held or which is linked to another entity by being subject to a single address or because its administrative, management or supervisory bodies. control, are composed mostly of the same people.
f) Group: All set of entities that:
1. This consists of a participating entity, its subsidiaries and the entities in which the participant or its subsidiaries hold a holding, as well as the entities linked to each other by being subject to a single address or because its administrative, management or control bodies are composed of the majority of the same persons;
2. be based on a recognition, contractual or otherwise, of strong and sustainable financial ties between these entities, which may include mutual and mutual social security mutual societies, provided that:
i. One of those entities, to be considered as the parent entity, effectively exercises, through centralised coordination, a dominant influence on decisions, including financial decisions, of all entities that are part of the group, to be considered as subsidiary entities;
ii. the establishment and dissolution of that relationship, for the purposes of this Title, are subject to the authorisation of the group supervisor; and
iii. in the case of groups of mutuals or social welfare mutual societies, they shall be in accordance with the rules laid down in the rules.
g) Group monitor: The supervisory authority responsible for group supervision, determined in accordance with the provisions of Article 134.
h) College of Supervisors: Permanent and flexible structure of cooperation and coordination, to facilitate decision-making regarding the supervision of a group.
i) Insurance holding company: a parent entity whose principal activity is to acquire and hold shares in subsidiaries that are exclusively or primarily insurance or reinsurance entities, including entities in third countries where in this case at least one of the subsidiaries is domiciled in the European Union and is not a mixed financial holding company.
(j) Mixed insurance holding company: A parent entity, other than an insurance undertaking, of a third-country insurance institution, of a reinsurer entity, of a reinsurer entity of a third country, of a the insurance holding company or a mixed financial holding company between whose subsidiaries there is at least one insurance or reinsurance undertaking.
k) Mixed financial holding company: The one defined as such in Article 2.7 of Law 5/2005 of 22 April of the supervision of financial conglomerates and amending other laws of the financial sector.
(l) Intragroup transactions: all transactions that directly or indirectly relate to an insurance undertaking with other entities in the same group or with any natural or legal person closely linked to the entities of that group for the performance of an obligation, whether or not contractual, and whether or not it has a payment.
m) regulated entities: Those defined as such in Article 2.3 of Law 5/2005 of 22 April of the supervision of financial conglomerates and amending other laws of the financial sector.
2. The provisions of this Act on the supervision of groups of insurers and reinsurers shall apply without prejudice to the obligations arising out of the supervisory rules for entities considered individually.
Article 132. Groups subject to monitoring.
1. Groups formed by:
will be subject to monitoring.(a) Insurance or reinsurance entities that are a participating entity in at least one insurance or reinsurance undertaking, including in an insurance or reinsurance undertaking in a third country;
(b) insurance or reinsurance entities whose parent is an insurance holding company or a mixed financial holding company with registered office in the European Union;
(c) insurance or reinsurance entities whose parent is an insurance holding company or a mixed financial holding company that has its registered office outside the European Union, or an insurance or reinsurance undertaking of a third country;
(d) insurance or reinsurance entities whose parent is a mixed insurance holding company.
2. Where a mixed financial holding company is subject to equivalent provisions in accordance with this Law and with Law 5/2005 of 22 April of the supervision of financial conglomerates and amending other laws of the sector (a) financial, in particular as regards the supervisory requirements for the risks, the Directorate-General for Insurance and Pension Funds where the group supervisor is the group supervisor, after consultation with the other supervisory authorities; may decide to apply only the relevant provisions of that Law 5/2005 to that mixed financial holding company.
3. Where a mixed financial holding company is subject to equivalent provisions in accordance with this Law and with Law 10/2014 of 26 June, of the management, supervision and solvency of credit institutions, or the Law 24/1988, of 28 (a) July, the Securities Market, and its respective development provisions, in particular as regards the supervisory requirements in terms of risks, the Directorate-General for Insurance and Pension Funds when it is the supervisor of the group, after consultation with the other authorities responsible for the supervision of the subsidiaries of the the mixed financial holding company may decide that only the provisions of Law 10/2014 of 26 June, of the ordination, supervision and solvency of credit institutions, or of Law 24/1988, of 28 July, of the Stock Market.
4. The Directorate-General for Insurance and Pension Funds, where the group supervisor is the group supervisor, shall inform the Supervisory Banking Authority and the European Insurance and Occupational Pensions Authority of the decisions taken pursuant to the paragraphs 2 and 3.
Article 133. Scope of group monitoring.
1. Group supervision shall not necessarily involve the exercise of supervisory functions over the insurance or reinsurance entities of a third country, insurance holding companies and mixed financial holding companies, without (a) to the extent to which it is regulated, or to mixed insurance holding companies, all of which are individually considered.
2. In the event that the General Directorate of Insurance and Pension Funds is the group supervisor, it may agree that an entity is not included in group supervision when it is in any of the following assumptions:
(a) The entity is domiciled in a third country in which there are legal impediments to the referral of the necessary information, without prejudice to what is legally available;
b) the entity presents an insignificant interest in attention to the objectives of group supervision; or
c) the inclusion of the entity is inappropriate or misleading in relation to the objectives of group monitoring.
However, although individually considered, several entities in the same group may be excluded under the provisions of point (b), such entities shall be included if they jointly present significant interest in how much to the goals of group monitoring.
In the case of points (b) and (c), the Directorate-General for Insurance and Pension Funds, before agreeing on the non-inclusion of the institution in the field of group supervision, shall consult the other supervisory authorities. affected.
Agreed by the Directorate-General for Insurance and Pension Funds not to include in the supervision of a group of an insurance or reinsurance undertaking which has its registered office in another Member State, under the circumstances of points (b) or (c), the supervisory authorities of the Member State in which the non-included entity is domiciled may ask the Spanish entity to include all information necessary for the supervision of the group at the head of the group insurer or reinsurer considered.
3. Where the supervisory authority of another Member State, which is a group supervisor, agrees to the non-inclusion of a Spanish insurer or reinsurer in group supervision on the basis of assumptions similar to those set out in the letters (b) or (c) of the previous paragraph, the Directorate-General for Insurance and Pension Funds may ask the institution to include at the head of the group any information which may facilitate the supervision of the Spanish insurance or reinsurance undertaking which has not been included in group monitoring.
CHAPTER II
Exercise group monitoring
Section 1. Second Functions and Powers of the General Directorate of Insurance and Pension Funds as a group supervisor
Article 134. Exercise of group supervisor duties by the General Directorate of Insurance and Pension Funds.
1. The Directorate-General for Insurance and Pension Funds shall exercise the functions of group supervisor when all the entities in the group have their registered office in Spain.
2. In the event that not all the entities in the group have their registered office in Spain, the General Directorate of Insurance and Pension Funds shall exercise the functions of group supervisor when it is in any of the following cases:
(a) The head of the group is an insurance or reinsurance undertaking which has its registered office in Spain.
(b) The head of the group is a holding company or a mixed financial holding company, if all the insurance institutions or subsidiaries of the insurance holding company have their registered office in Spain.
(c) The head of the group is an insurance holding company or mixed financial holding company which has its registered office in Spain, if any of the insurance companies or reinsurers subsidiaries of the company Insurance portfolio or mixed financial holding company also has its registered office in Spain.
(d) The head of the group is a number of insurance holding companies or mixed financial holding companies with registered offices in Spain and other Member States, if the group has its registered office in Spain. insurer or reinsurer whose balance sheet total is the largest of all insurers and reinsurers with registered office in the European Union.
(e) Several insurance or reinsurance undertakings with registered offices in different Member States have as their parent a same insurance holding company or mixed financial holding company which does not have a registered office in Spain or another Member State where there is a subsidiary, if it has its registered office in Spain, the insurance or reinsurance undertaking whose total balance is greater.
(f) The group lacks the parent, or in any other circumstance not referred to in (a) to (e), if it has its registered office in Spain the insurance or reinsurance undertaking whose total balance is greater.
3. The cases in which the circumstances referred to in paragraph 2 are not yet to be determined shall be determined by the Directorate-General for Insurance and Pension Funds to assume the functions of the group supervisor, as well as the cases where the in which these circumstances are met, the General Directorate does not assume the functions of group supervisor.
Article 135. Powers of the Directorate-General for Insurance and Pension Funds as group supervisor. College of Supervisors.
1. The General Directorate of Insurance and Pension Funds when it is group supervisor shall have the following powers:
(a) Coordination of the collection and dissemination of relevant or necessary information for current and emergency situations, including the dissemination of information that is of relevance to the role of the authorities monitoring.
b) The monitoring and evaluation of the group financial situation.
(c) The verification that the group complies with the provisions on solvency and risk concentration, and on intra-group transactions.
(d) The examination of the system of government of the group and whether the members of the administrative or management body of the participating entity meet the requirements set out in Article 38 and others to be established regulentarily.
e) Planning and coordination, through meetings held at least on an annual basis or through other appropriate means, of supervisory activities in current and emergency situations, in cooperation with the supervisory authorities concerned and taking into account the nature, size and complexity of the risks inherent in the activity of all the entities that are part of the group.
(f) The direction of the validation process for internal models used at the group level, in accordance with the provisions of Article 147, and of the process for authorising the application of the group scheme with centralised management
g) The other functions, measures, and decisions assigned to the group supervisor in this Act and the other rules that are applicable.
2. It shall apply to the supervision of groups, as provided for in Chapters I, IV and V of Title IV, in relation to the supervision of insurance or reinsurance undertakings.
3. In order to facilitate the exercise of group supervision tasks, a college of supervisors shall be established. Regulations shall cover the aspects relating to the members and the functioning of the colleges of supervisors, as well as the content of the coordination agreements concluded between the Directorate-General for Insurance and Pension Funds and other supervisory authorities.
Article 136. Access to information and verification.
1. Natural and legal persons included in the scope of group supervision, and their related and participating entities, shall exchange all information that is relevant for the purposes of group supervision.
2. The Directorate-General for Insurance and Pension Funds, where the group supervisor is the group supervisor, shall have access to any information that is relevant for the purposes of the exercise of group supervision and regardless of the nature of the institution. affected, in the terms established for the supervision of individual entities in Articles 113 and 114.
The Directorate-General for Insurance and Pension Funds may only apply directly to request information from entities in the group other than the insurance or reinsurance undertaking subject to group supervision, if such information has been requested from this and has not been provided within the required time limit.
3. Where the economic, financial or management relationships of an insurance or reinsurance undertaking with other entities may be presumed to be a group of insurance entities subject to supervision in accordance with the provisions of this Law, institutions have carried out the calculation of the group's Solvency Capital Requirement, the General Directorate of Insurance and Pension Funds, may request information from or inspect these entities for the purpose of determining the origin of the this calculation.
4. The Directorate-General for Insurance and Pension Funds may verify the information requested, in accordance with paragraph 2 of this Article, on the premises of the insurance or reinsurance undertaking subject to group supervision, as well as on the (a) of its related entities, in those of its parent institution, in those of other entities linked to the parent entity and in those of the entities that are presumed to be a group.
5. The procedure for the verification of information by the Directorate-General for Insurance and Pension Funds of entities forming part of a group and domiciled in other Member States, as well as the the procedure for the verification of information of entities that are part of a group and are domiciled in Spain by the supervisory authority of another Member State.
Section 2. Collaboration with other monitoring authorities
Article 137. Call and consultation between supervisory authorities.
1. The Directorate-General for Insurance and Pension Funds, whether or not a group supervisor, shall call upon all supervisory authorities involved in group supervision at least when they are aware of the concurrence of any of the following: following circumstances:
(a) A significant non-compliance with the Solvency Capital Requirement or the Minimum Capital Requirement of an individual insurer or reinsurer.
(b) A significant non-compliance with the group-level Solvency Capital Requirement calculated on the consolidated basis of consolidated data, or the aggregated Solvency Capital Requirement of the group, whichever is the calculation to be used.
c) Other exceptional circumstances.
2. Without prejudice to Article 135, provided that a decision is of importance for the supervisory work of other supervisory authorities, the Directorate-General for Insurance and Pension Funds shall consult with the other authorities. monitor the college of supervisors who may be affected, prior to the adoption of a decision, in relation to:
a) The modification of the actuarial, organizational or managerial structure of the insurance and reinsurance entities of a group subject to prior authorization by the supervisor.
(b) The decision on the extension of the recovery period in accordance with Article 156.
c) Major sanctions or extraordinary measures taken such as the requirement of additional capital to the Solvency Capital Requirement, the imposition of limits on the use of an internal model for the calculation of the the Solvency Capital Requirement, or other extraordinary measures.
In relation to what is set out in (b) and (c), the group monitor will always be consulted.
In addition, whenever a decision is based on information received from other supervisory authorities, the Directorate-General for Insurance and Pension Funds will consult with the supervisory authorities concerned before taking such a decision. decision.
3. The Directorate-General for Insurance and Pension Funds may not carry out such consultation in cases of urgency or if it considers that such consultation could jeopardise the effectiveness of the decision. In this case, the Directorate-General for Insurance and Pension Funds shall inform the other supervisory authorities concerned.
Article 138. Information requested from other supervisory authorities.
1. The Directorate-General for Insurance and Pension Funds, where the group supervisor is the group supervisor, may ask the supervisory authorities of the Member State in which the parent institution has its registered office to ask that institution for any information that it is relevant for the exercise of its rights and duties for coordination of group supervision, and provides it with such information.
2. When the Directorate-General for Insurance and Pension Funds, as a group supervisor, needs any information that has already been provided to other supervisory authorities, it will initially request such information.
Article 139. Cooperation with the supervisory authorities of credit institutions and investment firms.
If an insurance or reinsurance undertaking and a credit institution, an investment firm, or both, are directly or indirectly linked or have a common participating entity, the Directorate-General for Insurance and Pension Funds shall cooperate closely with the supervisory authorities of the latter, supplying and requiring them, without prejudice to their respective powers, to any information which may simplify their work.
Section 3. Monitoring Levels
Article 140. Ultimate parent entity in the European Union.
1. Where a participating insurer or reinsurer or a holding company or a mixed financial holding company, which has a registered office in Spain, is a subsidiary of another insurance or reinsurance undertaking or another the insurance holding company or other parent mixed financial holding company having its registered office in another Member State, group supervision shall be carried out exclusively at the level of the parent or reinsurance undertaking or reinsurer the insurance holding company or mixed financial holding company of the last holding company with registered office in that other Member State.
2. Group supervision of an insurance or parent reinsurance undertaking or a holding company or a mixed financial holding company which has its registered office in Spain and is the ultimate parent at the level of the European Union shall cover the all entities that are part of the group.
Article 141. National subgroup of insurance or reinsurance entities.
1. Where a participating insurer or reinsurer or a holding company or a mixed financial holding company having its registered office in Spain is in turn part of a group whose ultimate parent has its domicile in another Member State, the Directorate-General for Insurance and Pension Funds may agree that the group supervision or the parent reinsurance or insurance holding company or joint financial holding company shall be subject to the supervision of a group. last portfolio with registered office in Spain, which will be considered for these purposes as the parent of a National subgroup of insurance or reinsurance entities.
The monitoring of the national subgroup will require a reasoned resolution from the Directorate-General for Insurance and Pension Funds, after consulting the group supervisor and the ultimate parent institution at the European Union level.
The Directorate-General for Insurance and Pension Funds shall justify the decision taken both before the group supervisor and before the parent insurer or reinsurer or insurance holding company or financial company (a) a joint venture between the European Union and the European Union. The group monitor will report this to the college of supervisors.
The supervision of the national subgroup may not be agreed or maintained when the ultimate parent institution at the European Union level has been authorised by the group supervisor to submit to its registered subsidiary in Spain the Supervisory arrangements for the solvency of groups with centralised risk management.
2. The monitoring of the national subgroup shall be in accordance with the provisions of group supervision, with the following particularities:
(a) The supervision of the national sub-group may be extended to all areas subject to group supervision or to only one or two of them, either the supervision of the solvency, the risk concentration and the operations intragroup, or risk management and internal control.
(b) The supervision of the solvency of the national sub-group shall in turn be adjusted to the following criteria:
1. The method for monitoring the solvency of the subgroup shall be that chosen by the group supervisor to analyse the solvency of the ultimate parent institution at the European Union level.
2. º If the ultimate parent institution at the European Union level has obtained authorisation from the group supervisor to calculate the Solvency Capital Requirement of the group and that of the insurance and reinsurance entities that form part of it according to an internal model, such a method shall be used for the calculation of the Solvency Capital Requirement of the national sub-group and of the insurers and reinsurers that form it.
3. º If the risk profile of the ultimate parent institution at national level deviates significantly from the internal model approved at the European Union level, and the entity considered does not respond adequately to the requirements that the General Directorate for Insurance and Pension Funds may, by means of a reasoned decision, require an additional capital from the Solvency Capital Requirement of the national sub-group to be derived from the application of the said model; or, in exceptional circumstances where such a requirement is inappropriate, may require the institution that calculates the Solvency Capital Requirement of the national sub-group according to the standard formula. The General Directorate of Insurance and Pension Funds shall account for the above resolution both to the institution and to the group supervisor. The group monitor will report this to the college of supervisors.
4. The ultimate parent entity at the national level may not apply for authorisation to subject any of its subsidiaries to the system of supervision of the solvency of groups with centralised risk management.
Article 142. Sub-group of entities comprising national sub-groups of several Member States.
1. Where the Directorate-General for Insurance and Pension Funds has agreed, in accordance with Article 141, to subject group supervision to a national subgroup, it may conclude an agreement with the supervisory authorities of the Member States. members in which other entities linked to the same ultimate parent are present at Community level, and which are the ultimate parent of a national subgroup in those States, that supervision is performed at the level of a larger subgroup covering several National subgroups. In such case group supervision at the subgroup level shall only be exercised by the supervisor designated in the agreement.
The national supervisory authorities involved in the agreement shall justify the decision taken by both the group supervisor and the insurance or parent reinsurance or insurance holding company or company joint financial portfolio at the level of the European Union. The group monitor will report this to the College of Supervisors.
The supervision of the sub-group covering several Member States may not include entities which are the ultimate parent of a national subgroup in other Member States other than those of the supervisory authorities with which the reached the agreement.
2. In the exercise of the supervision of the subgroup covering several Member States, the rules laid down for the supervision of a national subgroup shall apply.
CHAPTER III
Group Financial Situation
Section 1. Group Solvency
Article 143. Monitoring of group solvency.
1. Participating insurers or reinsurers shall ensure that the group has at all times eligible own funds at least equal to the group Solvency Capital Requirement calculated on the basis of the provided for in this Law and the other rules applicable to it.
When the parent group of the group is an insurance holding company or mixed financial holding company, the insurance and reinsurance entities that are part of the group shall ensure compliance with the obligation. provided in the preceding paragraph.
2. Institutions required under paragraph 1 shall ensure that the group has at all times eligible basic own funds to cover the group's mandatory minimum capital, determined in accordance with the rules applicable to the group. application, where applicable.
Article 144. Report on the financial and solvency situation at the group level.
1. Participating insurers and reinsurers, insurance holding companies or mixed financial holding companies shall publish annually a report on the financial and solvency situation at the group level. For this purpose, the provisions of Articles 80 to 82 shall apply to the report on the financial and solvency situation of individual institutions.
2. An institution required under paragraph 1 may, on the basis of the General Directorate of Insurance and Pension Funds, when the group supervisor is the group supervisor, draw up a single report on the financial and solvency situation, which shall include: the group-level information to be made public and the information on any of the subsidiaries belonging to the group which must be individually identifiable and which must be made public in accordance with Articles 80 to 82.
Article 145. Calculation of the solvency at the group level of participating entities.
The calculation of the solvency at the group level of participating insurers or reinsurers shall be carried out in accordance with the method based on accounting consolidation.
However, the Directorate-General for Insurance and Pension Funds, where the group supervisor is the group supervisor, may, after consulting the other supervisory authorities concerned and the group itself, agree on the implementation of the deduction and aggregation, or a combination of both methods where the exclusive application of the method based on accounting consolidation is not appropriate.
Article 146. Calculation of the solvency of the consolidated group: method based on accounting consolidation.
1. The calculation of group solvency shall be made on the basis of consolidated accounts.
2. The consolidated group Solvency Capital Requirement shall be calculated in accordance with either the standard formula or an internal model, approved in a manner consistent with the principles and requirements required at the individual level. The maximum period for resolving the procedure and the notification of the decision is six months. After this period has not been notified, the application shall be deemed to be dismissed.
3. The system of calculation of this method will be developed.
Article 147. Consolidated group internal model and the group's insurance and reinsurance entities.
1. Participating insurers and reinsurers and their related entities, or together entities linked to an insurance holding company or a mixed financial holding company, may submit to the Directorate-General for Insurance and Pension Funds, where the group supervisor is the group supervisor, the application for authorisation to use an internal model in the calculation of the consolidated group solvency capital and the Solvency Capital Requirement insurance and reinsurance entities in the group.
2. Where none of the insurance or reinsurance entities in the group are located in another Member State other than Spain, the approval of the consolidated group internal model and of the insurance and reinsurance entities of the group shall be perform in a manner consistent with the principles and requirements required at the individual level. The maximum period for resolving the procedure and the notification of the decision is six months. After this period has not been notified, the application shall be deemed to be dismissed.
3. The authorisation procedure for an internal consolidated group model and for the insurance and reinsurance entities of the group shall be regulated when any group entity is located in another Member State other than Spain. In any case, the maximum period for resolving the procedure and notifying the decision is six months. After this period has not been notified, the application shall be deemed to be dismissed.
4. The measures to be taken when the risk profile of an insurance or reinsurance undertaking is significantly apart from the assumptions on which the internal model which has been authorised at the group level is based, shall be regulated.
Article 148. Requirement of additional consolidated group Solvency Capital Requirement.
Where the risk profile of the group is not adequately reflected, additional capital may be required on the consolidated group Solvency Capital Requirement.
Article 149. Method of deduction and aggregation.
1. In accordance with Article 145, the Directorate-General for Insurance and Pension Funds, where the group supervisor is the group supervisor, may authorise the use of the method of deduction of aggregation in cases where it is laid down in the rules of the European Union direct application.
2. The system of calculation of this method will be developed.
Article 150. Group regime with centralized risk management.
Parent entities may submit an application for authorisation to allow their subsidiaries to benefit from the group scheme with centralised risk management.
The requirements for eligibility for this scheme, as well as the authorisation procedure for this scheme, will be determined.
Section 2. Risk Concentration and Intragroup Operations
Article 151. Supervision of the concentration of risk and intra-group transactions.
Insurance and reinsurance entities, insurance holding companies and mixed financial holding companies are required to notify the General Directorate of Insurance and Pension Funds, where the group supervisor, on a regular basis and at least once a year, at least any significant risk concentration at the group level as well as all significant operations carried out within the group; including those made with a natural person linked to any entity in the group by means of close links.
Section 3. Risk Management and Internal Control
Article 152. Monitoring the group governance system.
1. The risk management and internal control systems and the reporting procedures shall be implemented consistently in all entities that are part of a group, so that such information systems and procedures can be the subject of group-level monitoring.
The provisions of this Law in relation to the system of government of the insurers and reinsurers individually considered will be of application at the group level.
2. The participating insurance or reinsurance undertaking or the insurance holding company or the mixed financial holding company shall carry out at group level the internal risk and solvency assessment referred to in Article 66. This internal risk assessment and group solvency will be subject to review by the General Directorate of Insurance and Pension Funds when it is the group supervisor.
3. The participating insurance or reinsurance undertaking or the insurance holding company shall implement procedures to detect the deterioration of the group's financial situation and shall notify the General Directorate within a maximum of 10 days. Insurance and Pension Funds, where the group supervisor is the group supervisor, the deterioration that could have occurred.
Section 4. Incompliance with group solvency
Article 153. Measures to address non-compliances.
1. If the insurance or reinsurance entities of a group do not meet the requirements on group solvency, risk concentration and intra-group transactions, and risk management and internal control, as set out in Chapter III of this Regulation. title or, despite meeting those requirements, its solvency is at risk, or the intra-group transactions and the risk concentrations endanger the financial situation of the insurance or reinsurance undertaking, the Directorate-General for Insurance and Pension funds, where the group supervisor is the group supervisor, will require the aforementioned entities to adopt the measures needed to address the situation. Where the insurance or reinsurance undertaking has its registered office in another Member State, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authority of the Member State of the entity's domicile of this decision to the the purpose of the adoption of the necessary measures.
Equally, the Directorate-General for Insurance and Pension Funds, as a group supervisor, may, where appropriate, require the adoption of corrective measures to an insurance holding company or mixed financial holding company. matrix. Where the insurance holding company or the parent mixed financial holding company has its registered office in another Member State, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authority of the State of the address. of the insurance holding company in order to enable it to take the necessary measures.
2. Insurance holding companies or mixed financial holding companies which infringe the laws, regulations or administrative provisions adopted pursuant to this Title and the persons who conduct such companies in a manner they shall be subject to the regime of infringements and penalties laid down in Title VIII of this Law.
The Directorate-General for Insurance and Pension Funds will cooperate with the other supervisory authorities concerned in order to ensure that the sanctions that could be imposed are effective, especially when the the central government or the principal establishment of an insurance holding company does not match its registered office.
CHAPTER IV
Groups with parent entities outside the European Union
Article 154. Verification of equivalence.
1. Where the parent institution of a group is an insurance or reinsurance undertaking or an insurance holding company or a mixed financial holding company, which has its registered office in a third country, the supervisory authorities shall ensure that the parent institution of the group is a (a) shall verify the equivalence of the prudential regime for the supervision of groups from this third country to that provided for in this Title, in accordance with the following rules:
(a) This equivalence shall be determined by the European Commission in accordance with the criteria it specifies, with the assistance of the European Insurance and Occupational Pensions Authority.
The list of equivalent prudential regimes will be published by the European Insurance and Occupational Pensions Authority on its website and will be kept up to date. The decisions of the Commission shall be reviewed regularly in order to be updated to take account of any substantial changes to the supervisory arrangements of the European Union and the third country supervisory regime.
(b) Where all the criteria set out in point (a) are not met, the equivalence may be determined on a temporary basis by the European Commission, with the assistance of the European Insurance and Occupational Pensions Authority, in accordance with the criteria to be laid down in regulation.
The list of third countries for which a temporary solvency regime has been established will be published by the European Insurance and Occupational Pensions Authority on its website and will be kept up to date. Commission decisions shall be reviewed regularly in order to be updated with the progress reports made by the third country, which shall be submitted to the Commission annually for evaluation with the assistance of the Authority. European Insurance and Occupational Pensions.
The temporary equivalence regime shall be five years from 1 January 2016 or end on the date on which, in accordance with point (a), the prudential regime of that third country is considered to be equivalent, if the latter is Date is above. That period may be extended by a maximum of one year when it is necessary for the European Insurance and Occupational Pensions Authority and the Commission to carry out the assessment of equivalence for the purposes of point (a).
Temporary equivalence shall not apply where there is an insurance or reinsurance undertaking located in a Member State whose total balance is higher than the total balance sheet of the parent undertaking in a third country. In this case, the group supervisor function shall be exercised by the group supervisor determined in accordance with the criteria set out in Article 134.2.
(c) Where no decision has been taken in accordance with points (a) and (b) above, it shall be the responsibility of the Directorate-General for Insurance and Pension Funds, where, in accordance with the criteria laid down in Article 134.2, the group supervisor, verify, ex officio or at the request of the parent institution or any of the insurance or reinsurance entities of the group authorised in the European Union, the equivalence of the prudential regime for the supervision of groups of the third country. The European Insurance and Occupational Pensions Authority will assist the group supervisor in this.
When carrying out such verification, the Directorate-General for Insurance and Pension Funds shall, with the assistance of the European Insurance and Occupational Pensions Authority, consult the other supervisory authorities concerned, before taking a decision on equivalence. This decision shall be taken in accordance with the criteria adopted by the European Commission in accordance with point (a), as well as with the decisions taken previously bilaterally with respect to that third country, except where it is necessary to take account of substantial amendments made to the Spanish supervisory regime or to the supervisory regime of that third country.
In case of disagreement between the supervisory authorities regarding the decision on the equivalence adopted, the matter may be referred to the European Insurance and Occupational Pensions Authority and request its assistance in a three months from the date of notification of the decision by the Directorate-General for Insurance and Pension Funds, when acting as a group supervisor.
2. In the event that group supervision in the third country is considered equivalent, the Directorate-General for Insurance and Pension Funds shall use the equivalent supervision exercised by the supervisory authorities of the third country, applying the provisions of Sections 1 and 2 of Chapter II of this Title and Articles 144, 148 and the Rules of Procedure, mutatis mutandis, to cooperation with the supervisory authorities of the third country.
3. The rules applicable shall be determined when the supervision of groups in third countries is not considered equivalent.
TITLE VI
Financial deterioration situations. Special control measures
CHAPTER I
Financial Impairment Situations
Article 155. Financial deterioration of insurance and reinsurance entities.
Insurance and reinsurance entities will implement procedures to detect the deterioration of their financial situation and will report within a maximum of ten days to the General Directorate of Insurance and Pension Funds. the production of such deterioration, of any insufficiency with respect to the Solvency Capital Requirement or with respect to the Minimum Capital Requirement, and as soon as there is a risk that such insufficiency may occur in the three months next.
Article 156. Non-compliance with the Solvency Capital Requirement.
1. Where the insurer or reinsurer observes a non-compliance with the Solvency Capital Requirement or the risk that it occurs within the following three months, it shall be required to submit to the approval of the Directorate-General for Insurance and Pension Funds a recovery plan, within two months of the fact that the non-compliance or the risk of non-compliance has been observed.
2. The Directorate-General for Insurance and Pension Funds shall require the institution to adopt and execute, within six months of the date of the non-compliance or the risk of occurrence, the measures necessary to restore the level of the pension. eligible own funds for the coverage of the Solvency Capital Requirement or to reduce its risk profile in such a way as to cover the Solvency Capital Requirement. The deadline may be extended for three more months.
3. The assumptions and the measures to be taken in the event of exceptional adverse situations affecting insurance and reinsurance entities representing a significant share of the market or of the classes concerned shall be regulated.
Article 157. Non-compliance with the Minimum Capital Requirement.
When the insurer or reinsurer observes a default in the minimum capital requirement or the risk of it occurring within the following three months, it shall be required to submit to the approval of the Directorate-General for Insurance and Pension Funds, within the following month, a short-term financing plan aimed at resetting within a period of three months, to be counted since the non-compliance or the risk of the occurrence, the own funds has been observed. (a) the minimum capital requirement, at least up to the level of the minimum capital requirement; or risk in such a way that the minimum capital requirement is met.
Article 158. Plan content.
The content of the recovery plan and the short-term financing measures provided for in this chapter will be regulated.
CHAPTER II
Special Control Measures
Article 159. Situations that may lead to the adoption of special control measures.
1. The Directorate-General for Insurance and Pension Funds may take special control measures where insurance or reinsurance undertakings are in one of the following situations:
(a) Impairment of eligible own funds to cover the minimum capital requirement.
(b) Impairment of eligible own funds to cover the Solvency Capital Requirement.
(c) Deficit exceeding 20 per 100 in the calculation of the Solvency Capital Requirement.
(d) Failure to comply with the rules relating to the valuation of assets and liabilities, including technical provisions, in such a way that a deviation of more than 20 per 100 is produced in the calculation of eligible own funds for cover the Solvency Capital Requirement. As well as, a non-compliance with respect to technical provisions, when the required level is not reached once the entity is required for its increase in the terms of Article 70.2.
e) Financial or liquidity difficulties that have determined late or default in their payments.
(f) Relevant deficiencies in the system of government or internal control system, which prevent the management of the activity and, in particular, compliance with the obligations in respect of risk management, compliance, internal and actuarial auditing or outsourcing of functions or activities.
g) Manifest difficulty in achieving the social end, or paralysis of the social organs in order to make it difficult to function.
(h) Situations in fact, deducted from checks carried out by the Directorate-General for Insurance and Pension Funds, which endanger the solvency of the institution, the interests of the insured or the performance of the (a) the obligation to pay the costs incurred by the insurance undertaking, or the accounting or management irregularity in such a way as to prevent or otherwise make it difficult to know the true estate status of the entity.
2. Special control measures may be taken on the dominant entities of groups of insurers and reinsurers, and on the insurance and reinsurance entities themselves which are part of the group where the group is located. any of the situations described in paragraph 1.
Article 160. Special control measures that can be taken.
1. Irrespective of the administrative penalties that may be imposed, the Directorate-General for Insurance and Pension Funds may adopt the following special control measures:
a) Require a short-term financing plan from the insurer.
b) Require a recovery plan to the insurer to restore its financial position.
(c) Prohibit the provision of assets to be determined by the institution and its subsidiaries, unless they are financial institutions subject to supervision. This measure can be completed with the following:
1. The deposit of securities and other movable property or the management of real estate by persons accepted by the General Directorate of Insurance and Pension Funds.
2. The notification of the measure to credit institutions depository of cash or securities.
3. The preventive annotation of the ban on the availability of the corresponding public records, for which the resolution of the General Directorate of Insurance and Pension Funds in which the agreement is agreed will be sufficient. referred to as a prohibition. During the period of validity of the preventive entry, no legal rights shall be entered in the public registers or any judicial or administrative injunctions shall be entered into, nor may the credit institutions carry out or carry out cash payment for injunctions or awards or for any other concept, without the prior and express authorization of the General Directorate of Insurance and Pension Funds.
(d) to prohibit the institution and its subsidiaries, unless the latter are financial institutions subject to supervision which, without prior authorisation from the Directorate-General for Insurance and Pension Funds, may carry out the acts of management and disposition to be determined, take on new debts, distribute dividends, active branches and returns, hire new insurance or admit new partners.
2. The Directorate-General for Insurance and Pension Funds shall, on behalf of the institution, take account of the communications which, as a result of the special control measures adopted, must be carried out in the public registers.
Article 161. Additional special control measures.
If the deficit of eligible own funds to cover the Solvency Capital Requirement exceeds 20%, where the shortfall affects the Minimum Capital Requirement and the other situations described in the Article 159.1 (c) to (h), and in order to safeguard the interests of the insured, the Directorate-General for Insurance and Pension Funds may adopt, jointly or separately, any of the following measures:
a) The prohibition of disposition of goods.
(b) The prohibition of acts listed in Article 160.1.d).
c) Suspend the hiring of new insurance or the acceptance of reinsurance.
(d) prohibit the extension of insurance contracts concluded by the insurance undertaking in all or some of the classes. For these purposes, the insurance undertaking must inform the insured persons in writing of the prohibition of the extension of the contract within 15 calendar days after receipt of the notification of this special control measure; in this case, the The period laid down in the second paragraph of Article 22 of Law 50/1980 of 8 October of the Insurance Contract shall be reduced to 15 calendar days. Irrespective of the written communication to the policyholders, the decision to adopt such a measure shall be published in the Official Journal of the State and in the Official Journal of the European Union.
e) Prohibit the exercise of insurance or reinsurance activity abroad.
(f) Require the insurer or reinsurer to propose appropriate organisational, financial or other measures, provide a forecast of its results and set the time limits for its implementation in order to overcome the the situation which gave rise to that requirement. Such measures shall be subject to the approval of the Directorate-General for Insurance and Pension Funds.
(g) To order the Chief Executive Officer or similar administration to make known to the other administrative bodies the administrative decision taken and, where appropriate, the Act of the Inspection of Insurance, as well as to the organs administration of the subsidiaries.
(h) Call the administrative bodies or the board or general assembly of the insurance or reinsurance entity as well as designate the person to chair the meeting and account for the situation.
i) provisionally replace the entity's administrative organs.
j) The conduct of reviews of specific issues by the entity's auditor of accounts or by another auditor, provided that they do not constitute a violation of the independence regime to which they are subject, in accordance with the regulatory rules for the audit of accounts.
Article 162. Collaboration of the Insurance Compensation Consortium in the implementation of the special control measures adopted.
The Directorate-General for Insurance and Pension Funds may seek the collaboration of the Insurance Compensation Consortium so that, in relation to the special control measures taken, it will carry out the functions which it has determine regulentarily.
Article 163. Intervention by the insurer.
1. As a measure of special control complementary to those provided for in Articles 160 and 161, the Directorate-General for Insurance and Pension Funds may agree to the intervention of the insurance or reinsurance undertaking to ensure its correct compliance.
2. Acts and agreements of any body of the insurance or reinsurance undertaking which are adopted as of the date of notification of the decision which agrees to the administrative intervention and which affect or are related to the measures of Special control referred to above shall not be valid and shall not be carried out without the express approval of the designated financial controller. The exercise of actions or resources by the institution concerned against the administrative acts of supervision or in relation to the action of the financial controller is exempted from this approval.
3. The appointed financial controller shall have the power to revoke any powers or delegations conferred by the management body of the insurance or reinsurance undertaking or its proxies prior to the date of its entry into force. publication of the agreement. If such action is taken, the financial controller shall require the return of the documents in which the proxies are established, as well as to promote the registration of their revocation in the relevant public records.
4. The Directorate-General for Insurance and Pension Funds may seek support from the Insurance Compensation Consortium for the performance of the functions assigned to the financial controller.
Article 164. Procedure for the adoption of special control measures.
The adoption of special control measures shall be carried out by means of an administrative procedure carried out in accordance with the rules of the supervision procedure by inspection, with the specific features to be established. regulentarily.
Article 165. Temporary replacement of the administrative organs.
The provisional replacement of the insurance or reinsurance entity's administrative organs shall be in accordance with the following rules:
1. The administrative decision, of an immediate executive nature, shall designate the person or persons to act as interim administrators and shall indicate whether they are to do so jointly or severally.
The appointment will be published in the "Official State Gazette" and will be entered in the corresponding public records, including, where appropriate, those in the other Member States, publication that will determine their effectiveness. in front of third parties. The replacement of provisional administrators shall be subject to the same requirements and effects where it is necessary to proceed.
2. Provisional administrators shall meet the requirements laid down in Article 38.
3. Interim administrators shall also have the character of financial controllers, with the powers set out in Article 163, of the acts and agreements of the board or the general assembly of the insurance or reinsurance undertaking.
4. The obligation to draw up the annual accounts of the insurance or reinsurance undertaking and the approval of the insurance or reinsurance undertaking and the social management may be suspended for a period not exceeding one year from the expiry of the period of time. If the Directorate-General for Insurance and Pension Funds estimates, at the request of the provisional administrators, that there is no reliable and complete data or documents for this purpose. In this case, the holding of joint shareholders 'or mutual shareholders' meetings or assemblies for the approval of such meetings may also be suspended.
5. Agreed by the Directorate General of Insurance and Pension Funds the cessation of the temporary replacement measure of the administrative organs of the entity, the provisional administrators will proceed to convene immediately the board or assembly general of the insurance or reinsurance undertaking, in which the new administrative body is appointed. Until the latter's inauguration, provisional administrators will continue to perform their duties.
6. Provisional administrators may carry out their action on the territory of all Member States and may exercise in them the same functions and powers as in Spain. For these purposes, it shall be sufficient to certify the status of administrator of a certification of the decision to which the appointment is agreed. They may grant powers of representation only or request assistance where this is necessary to carry out the implementation of the measures in the territory of other Member States and, in particular, to resolve any difficulties which may arise. find the creditors resident in them.
Persons who attend or represent them must have recognized good repute and meet the necessary conditions of qualification or professional experience to perform their duties, in the terms of Article 38.
Article 166. Effects of the special control measures in other Member States.
1. Adopted by the Directorate-General for Insurance and Pension Funds on an insurance undertaking of the measures referred to in Articles 160.1.a), b), c) and d), 161.d), e), f) and i) and 163, that shall take effect in accordance with the provisions laid down in the in its legislation, in all Member States. For these purposes and without prejudice to the following paragraph, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authorities of the other Member States of the agreement to which the measure is adopted. effects within ten days of their adoption.
2. Furthermore, if the measure of special control of the prohibition on the disposal of goods on a Spanish insurance undertaking operating in other Member States under the right of establishment or under the freedom to provide services is adopted, the Directorate-General for Insurance and Pension Funds, shall, where appropriate, request the supervisory authorities concerned to take the same measures as the Directorate-General for Insurance and Funds of the European Union on the assets situated in its territory; Pensions would have been adopted.
Such measures shall be governed by the provisions of this Law and its implementing rules.
Article 167. Measures taken with regard to insurance companies domiciled in other Member States.
1. Where an insurance undertaking domiciled in another Member State has been taken by the supervisory authority of that Member State, the special control measure prohibiting the availability and application of the Directorate-General for Insurance and Pension funds that impose identical measure on the assets of the entity located in Spanish territory, with the indication of those who must be the subject of it, the aforementioned General Directorate shall impose such a measure.
2. Where an insurance undertaking domiciled in another Member State, including its branches in Spain or in other Member States, has adopted a reorganisation measure or a winding-up procedure, such measure or procedure shall be shall have effects in Spain as soon as it does so in the Member State in which the measure has been adopted or the procedure has been initiated.
3. Once notified to the Directorate-General for Insurance and Pension Funds the adoption of the measure or the opening of the procedure, it shall publish in the "Official State Gazette" an extract of the agreement or resolution of which the measure or procedure; in any event, the extract shall include the competent authority of the Member State which has adopted the measure or procedure, the legislation resulting from it, and, where appropriate, the identification of the liquidator or designated liquidators.
4. Provisional administrators and liquidators appointed by the competent authority of another Member State may carry out their duties in Spain; for such purposes, it shall be sufficient to establish their status as a certification of the Resolution or legalised copy of the agreement for which the appointment or appointment is made, translated into Spanish.
5. Such measures taken by other states and the adoption procedures shall be governed by the law of the Member State of adoption of the measure without prejudice to the fact that the following cases are referred to as follows: rules and leaving aside what can be foreseen in international treaties:
(a) The effects of those measures and procedures on employment contracts subject to Spanish legislation shall be governed by this legislation.
(b) The rights of the insurer on a property, ship or aircraft that are subject to registration in a Spanish public register shall be governed by Spanish law.
c) Without prejudice to paragraph 1, the adoption of reorganisation measures or the opening of the settlement procedure shall not affect the actual rights of creditors or third parties in respect of tangible assets. or intangible, movable or immovable assets, both specific assets and sets of non-determined assets, the composition of which is subject to change, belonging to the insurance undertaking which is located in Spain at the time of adoption of the such measures or the opening of such proceedings, or the exclusive right to charge a credit, in particular, the right guaranteed by a pledge of which the credit is to be granted or by the transfer of such credit to guarantee, where such guarantees are governed by the Spanish law.
d) The adoption of reorganisation measures or the opening of a winding-up proceedings on a buyer's insurance undertaking shall not affect the rights of the seller based on a reserve of domain when it is said to be is found, at the time of the adoption of the measure or the opening of the procedure, in Spanish territory.
The adoption of reorganisation measures or the opening of a winding-up proceedings on an insurance undertaking selling a good, after it has been delivered, shall not constitute a cause of termination or termination of the proceedings. sale and shall not prevent the purchaser from acquiring the property of the goods sold when the property is located, at the time of the adoption of the measures or the opening of the procedure, in Spanish territory.
e) The adoption of reorganisation measures or the opening of a winding-up procedure shall not affect the right of a creditor to claim the compensation of his credit with the credit of the insurance institution when the law governing the liquidation the settlement allows for compensation.
(f) The effects of a reorganisation measure or settlement procedure on the rights and obligations of participants in a Spanish regulated market shall be governed exclusively by the Spanish Law.
(g) The nullity, annulment or unenforceability of the legal acts prejudicial to the whole of the creditors shall be governed by the law of the home Member State, unless the person who benefited from the act for all creditors, prove that the said act is subject to the Spanish legislation and that this legislation does not in any way permit its challenge.
(h) The validity of the transfer for consideration by an insurance undertaking carried out after the adoption of a reorganisation measure or the opening of a settlement procedure, of a property situated in the Spain, vessel or aircraft subject to registration in a Spanish public register or of transferable securities or other securities whose existence and transfer involves an entry in a register or an account provided for by Spanish legislation or are placed in a central deposit system governed by Spanish law, shall be governed by the Spanish legislation.
i) The effects of a reorganisation measure or settlement procedure on a pending cause followed in Spain relating to a property or a right of which the insurer has been dispossessed shall be governed exclusively by the Spanish legislation.
Article 168. Consign procedures.
1. Insurance companies subject to a special control procedure shall not be able to apply for the declaration of competition judicially or to benefit from the measures provided for in Article 5a of Law 22/2003 of 9
.2. The judge, in the case of a request for a contest, before agreeing on his declaration, shall ask the Directorate-General for Insurance and Pension Funds or, where appropriate, the supervisory body of the competent Autonomous Community, to report on the situation of the entity and the measures taken. Where the Directorate-General for Insurance and Pension Funds, or the supervisory body of the competent Autonomous Community, reports that the institution is subject to some special control measure, it shall not accept the request for a tender or of the insolvency mediator.
3. The judge, when declaring an insurance undertaking in contest, shall immediately notify the decision to the Directorate-General for Insurance and Pension Funds or, where appropriate, to the supervisory body of the competent Autonomous Community. In the case of entities authorised to operate throughout the national territory, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authorities of the other Member States within the following 10 days of the the existence of the procedure and its effects. In addition, the Directorate-General for Insurance and Pension Funds shall publish in the Official Journal of the European Union an extract from the above resolution indicating, in any case, the competent court and the application to the Spanish legislation procedure.
4. The declaration in the contest of an insurance undertaking does not prevent the adoption of special control measures or their modification by maintaining the Directorate-General for Insurance and Pension Funds or, where appropriate, the Community supervisory body. Autonomous competent authority, all the powers of revocation and dissolution provided for in Articles 169 to 174. The settlement agreement of an entity in competition involves the opening of the settlement phase, which shall be governed by the insolvency law.
The adoption of any of the above measures shall be notified to the competition judge immediately by the Directorate-General for Insurance and Pension Fund or, where appropriate, by the supervisory body of the Autonomous Community. competent.
Received the proposal for a convention, and before transferring to the insolvency administration, the judge shall request the Directorate-General for Insurance and Pension Funds or, where appropriate, the supervisory body of the Community. Competent Autonomous Region, in order to give a ruling on the viability of the continuity of the insurance business and the fulfilment of all the guarantees of solvency and the exercise of the legally enforceable insurance activity.
Received such report or after the date granted without it has been issued, the judge shall bring it to the attention of the insolvency administration together with the proposal for a convention for the purposes of Articles 107 and 115 of the Treaty. Law 22/2003, of July 9, Bankruptcy.
The disposal of assets subject to the prohibition measure, whatever the stage of the insolvency proceedings in which it takes place, will require the express authorisation of the Directorate-General for Insurance and Pensions or, where appropriate, the supervisory body of the competent Autonomous Community.
5. In the case of known creditors who have their domicile in another Member State, they must be informed of the way in which they have to apply for recognition of their claims and may submit the written claims for claims or claims. comments to the latter in the form that is determined to be regulated.
6. The Directorate-General for Insurance and Pension Funds, or, where appropriate, the supervisory body of the competent Autonomous Community, shall be a party to all procedures involving insurance undertakings.
TITLE VII
Revocation, dissolution and liquidation
CHAPTER I
Revoking administrative authority
Article 169. Causes of revocation and its effects.
1. It is for the Minister for Economic Affairs and Competitiveness to revoke the administrative authorisation granted to insurers and reinsurers, without prejudice to the provisions of Article 19.1.
2. The revocation of the administrative authorisation of an insurance undertaking may be partial, where it affects one or more of the classes, or total, where it extends to all the classes in which the institution is authorised.
Likewise, the revocation of the administrative authorisation of a reinsurer may be partial, where it affects the life reinsurance activity or the reinsurance activity other than life insurance, or total, when extend to both activities.
3. The authorisation of a branch or classes or an activity in the following cases should be revoked:
a) If the entity expressly disclaims it.
(b) Where the institution has not commenced its business within a period of one year or ceases to exercise it for a period of more than six months. This inactivity shall be equivalent to the lack of effective activity by the insurance undertaking in the class or classes, in terms to be determined in a regulated manner. For reinsurer entities, inactivity due to a lack of initiation or cessation of exercise, the lack of effective activity in life reinsurance or non-life reinsurance shall be equated.
(c) When the total transfer of the insurance institution's portfolio is produced in one or more classes or the total disposal of the reinsurance institution's portfolio in one of the activities.
4. The total revocation of the administrative authorisation should be as follows:
(a) Those referred to in paragraph 3, where they affect all the classes in which the insurance undertaking is authorised or the whole of the activity of the reinsurer.
(b) When the entity ceases to comply with any of the requirements established by this Law for the granting of the administrative authorization or when it has obtained the authorization by false or inaccurate statements.
(c) Where the institution fails to meet the required minimum capital requirements and the financing plan submitted is manifestly inadequate, or where it does not implement or failed to comply with the plan approved in the three months the following at the time the insufficiency is observed with respect to the Minimum Capital Requirement.
d) When the dissolution is agreed.
e) When the entity has been imposed the administrative penalty for revocation of the authorization.
(f) Where it is established that the holders of a significant holding have an influence which is detrimental to the sound and prudent management of the insurance or reinsurance undertaking, which seriously damages their situation financial or those who have ceased to be suitable in an over-coming form.
5. The Government may revoke the authorisation granted to Spanish insurance companies and reinsurers with majority foreign participation in application of the principle of reciprocity or when they advise it in extraordinary circumstances. of national interest. In no case shall this cause of revocation be applicable to Spanish insurance and reinsurance entities in which the majority foreign participation comes from countries of the European Union.
6. Where one of the reasons for revocation referred to in paragraph 3.b) or points (b) and (c) of paragraph 4 is concerned, the Minister for Economic Affairs and Competitiveness, before agreeing on the withdrawal of the administrative authorisation, may grant a period of time, which shall not exceed six months, in order for the institution that has requested it to subsc it.
7. The decision to revoke the administrative authorisation shall be notified within the maximum period of six months, with the time limit being suspended for as long as, where appropriate, the institution is granted to overcome the cause of revocation.
8. The revocation of the administrative authorisation shall in all cases determine the immediate prohibition of the signing of new insurance or reinsurance contracts by the institution, as well as the liquidation of the insurance operations of the branches concerned. by revocation, subject to the provisions of Section 2. of Chapter II of this Title.
In the event of a total revocation of the authorisation, the administrative dissolution of the insurance or reinsurance undertaking shall proceed without the need to be subject to the provisions of Articles 173 and 174.1, except in cases where refers to Article 172.1 and 2.
9. In the event of revocation of the authorisation of an insurance or reinsurance undertaking authorised to act in the whole of the national territory, the Directorate-General for Insurance and Pension Funds shall inform the supervisory authorities of the other Member States to take appropriate measures to prevent the insurance or reinsurance undertaking from initiating new operations on its territory.
Also, in collaboration with the aforementioned authorities, the Directorate-General for Insurance and Pension Funds shall take the necessary measures to safeguard the interests of the insured and, in particular, prohibit the free disposal of the assets of the insurance undertaking.
10. Any revocation of the authorisation of an insurance undertaking or reinsurer authorised to act throughout the national territory shall be notified to the European Insurance and Occupational Pensions Authority in order to maintain that authority. updated the public list of approved insurance entities referred to in Article 20.6.
Also, the resolution adopting the revocation will be published in the "Official State Gazette" and in the "Official Journal of the European Union".
Article 170. Revocation of administrative authorisation to insurance companies domiciled in other Member States.
Where the supervisory authority of an insurance undertaking domiciled in another Member State, operating in Spain under the right of establishment or under the freedom to provide services, revokes the authorisation The Directorate-General for Insurance and Pension Funds will prohibit the insurance institution from hiring new insurance in both schemes.
In this case, and in order to safeguard the interests of the insured, the Directorate-General for Insurance and Pension Funds may adopt, in collaboration with that authority, the special control measures regulated in Articles 160 and 161.
Article 171. Revocation of the administrative authorisation of branches of entities domiciled in third countries.
1. It shall be the cause of revocation of the administrative authorisation granted to the branch of an insurance institution domiciled in a country not a member of the European Union, in addition to those listed in Article 169 (3) and (4), which is part of that Any of the circumstances which, in a Spanish insurance institution, are the cause of dissolution. In addition, the Government may revoke the authorisation of these branches, where they advise them in extraordinary circumstances of national interest.
In the event that an insurance institution domiciled in a non-EU country has branches established in Spain and in other Member States, the Directorate-General for Insurance and Pension Funds will report the other supervisory authorities involved and will coordinate their actions with them.
2. The need to safeguard the interests of insured persons, beneficiaries, injured persons or other insurance undertakings, which is required by this Law to agree to the intervention of the liquidation of an insurance undertaking, is presumed, in any event, to be the liquidation affecting branches of foreign entities domiciled in non-EU countries whose headquarters would have been dissolved.
CHAPTER II
Dissolution and liquidation of insurance and reinsurance entities
Section 1. Dissolution
Article 172. Causes of dissolution.
Are causes of dissolution of insurance and reinsurance entities:
1. The revocation of the administrative authorisation affecting all the classes or activities in which the institution operates. However, revocation shall not be a cause of dissolution where the institution itself renounces the administrative authorization and this waiver is solely motivated by the modification of its social object in order to carry out an activity other than those of listed in Article 3.1.
2. The total transfer of the insurance contract portfolio when it affects all the classes in which the institution operates. However, such disposals or activities shall not be the cause of dissolution where, in the public deed of disposal, the transferor manifests the modification of its social object in order to carry out an activity other than those listed in it. Article 3.1, or in the case of mutual insurance and social security mutual insurance companies which are transformed into a capital company with activity other than the insurer.
3. The number of partners in mutual insurance, insurance cooperatives and social security mutual societies has been reduced to a figure below the prescribed minimum.
4. Do not perform passive derbranches.
5. The causes of dissolution listed in Article 363 of the Recast Text of the Capital Companies Act, approved by the Royal Legislative Decree 1/2010 of 2 July, taking into account the following:
(a) In the case of mutual insurance and social security mutual societies, the references in this precept to social capital shall be understood as being made to the mutual fund.
(b) Net worth shall be defined in Article 36.1.c of the Trade Code.
6. For insurance cooperatives, the causes of dissolution included in your specific legislation.
Article 173. Dissolution agreement.
1. The dissolution, except in the case of compliance with the term laid down in the statutes, shall require the agreement of the general meeting or assembly. For these purposes, the administrators must convene it for their celebration within two months of the concurrency of the cause of dissolution and any partner may require the administrators to convene the meeting or assembly if, to their judgment, there is legitimate cause for dissolution.
2. The dissolution agreement shall include the relationship of assets and rights representing the assets assigned to the technical provisions in the investment register and those that cover the institution's mandatory capital requirements. insurer.
Article 174. Administrative dissolution.
1. In the event that there is a legal cause of dissolution and the meeting or assembly was not convened or, if it were, not to be held, the agreement could not be reached or would be contrary to the dissolution, the administrators will be obliged to request the administrative dissolution of the institution within ten calendar days, from the date on which the meeting or assembly was to have been convened pursuant to Article 173, where it was not convened; or, from the date specified for its conclusion, when that is not constituted; or, finally, from the day of the celebration, when the agreement of Dissolution could not be achieved or would have been contrary to dissolution.
2. Known by the Directorate-General for Insurance and Pension Funds the concurrence of a cause of dissolution, as well as the non-compliance by the social organs of the provisions of the previous paragraph, will proceed to the administrative dissolution of the entity.
Section 2
Article 175. General settlement rules.
1. The liquidation of Spanish insurance companies and reinsurers which have an adopted form of a public limited liability company, insurance or mutual insurance company shall be governed by the provisions of this Law and its implementing rules and, in the absence of (a) by the rules applicable to capital companies.
The liquidation of insurance cooperatives is governed by the provisions of the cooperative legislation that is applicable in all the provisions of this Law and its implementing legislation.
2. The settlement shall ensure the same rights as the shareholders of the capital companies and, in particular, the right of information and the right to participate in the assets resulting from the liquidation.
3. During the liquidation period, the operations defined in Article 3.1 may not be concluded, but the insurance contracts in force at the time of the dissolution shall remain effective until the end of the current insurance period and they shall be defeated at that time without the possibility of extension, without prejudice to the anticipated declaration of maturity.
4. The liquidation of a Spanish entity shall also comprise that of all its branches.
The obligations arising out of contracts concluded under the right of establishment and under the freedom to provide services shall be treated in the same way as the obligations arising out of the other insurance of the institution in liquidation, without distinction of nationality of the creditors by contract of insurance.
Where a Spanish reinsurer is liquidated, the obligations arising out of reinsurance contracts concluded under the right of establishment and under the freedom to provide services shall have the same obligations. treatment of the obligations arising out of the other reinsurance contracts of the institution in liquidation.
Article 176. Effects on other Member States of the liquidation of Spanish entities.
1. The administrative decision or the agreement which it brings shall be recognised in the territory of the other Member States, in accordance with the provisions of its legislation, and shall have effect on them as soon as it does so in Spain.
For these purposes, the Directorate-General for Insurance and Pension Funds, within ten days, from the next to the date on which the decision is made or has knowledge of the agreement, shall inform the authorities. monitoring of the other Member States on the existence of the procedure and its effects.
It shall also publish in the Official Journal of the European Union an extract from that resolution or agreement which shall, in any event, indicate the competence of the Directorate-General for Insurance and Pension Funds on the procedure, which shall be the law applicable to such settlement procedure is that contained in this Law and its implementing rules, as well as the identification of the appointed liquidator or liquidators.
2. The liquidators may carry out their action on the territory of all Member States and may exercise in them the same functions and powers as in Spain. For these purposes, it shall be sufficient evidence to prove the status of liquidator a certification of the decision or a legalised copy of the agreement for which the appointment is made.
They may also grant proxy powers or request assistance where this is necessary to carry out the settlement process in the territory of other Member States and, in particular, to resolve the difficulties that resident creditors may encounter in them.
In any case, persons who attend or represent them must be of good repute and must meet the necessary conditions of qualification and professional experience to perform their duties, on the same terms as the liquidators.
Article 177. Effects in Spain of the liquidation of insurance companies domiciled in other Member States and operating in Spain under the right of establishment or freedom to provide services.
The Directorate-General for Insurance and Pension Funds may require the supervisory authorities of other Member States to provide information on the status and development of the settlement procedures to be carried out in respect of entities subject to the supervision of those authorities and operating in Spain under the right of establishment or freedom to provide services and shall give publicity to them.
Any decision relating to the opening of a winding-up proceedings of an insurance or reinsurance undertaking, including branches held in other Member States, adopted in accordance with the law of the State Member of origin, once communicated to the Directorate-General for Insurance and Pension Funds, will be recognised without further formalities and will take effect in Spain as soon as it does so in the Member State initiating the procedure.
Article 178. Supervision of settlement.
1. Institutions in liquidation are subject to supervision until the cancellation of the registration in the administrative register.
2. The liquidation shall not affect the validity of the measures which have been adopted in the exercise of the supervisory function, and the following may be adopted:
(a) The intervention of the settlement, subject to this the actions of the liquidators in the terms defined in this Article, in Article 163, and in their regulatory provisions for development.
b) The separation, appointment of liquidators or entrusts from the liquidation to the Insurance Compensation Consortium in the cases listed in Article 14 of the Legal Statute of the Insurance Compensation Consortium, approved by Royal Decree-Law 7/2004 of 29 October.
(c) Dispose, on its own initiative or at the request of the liquidators, the transfer of the entity's insurance contract portfolio to facilitate its liquidation.
(d) Determine the date of the anticipated maturity of the term of the insurance contracts that integrate the institution's portfolio into liquidation, in order to avoid damages to the creditors on an insurance contract. Such determination shall respect the economic balance of the benefits in the contracts concerned and must take place with the necessary publicity, in advance of 15 calendar days to the date on which it is to take effect and, unless otherwise provided for in the exceptional circumstances advising against delaying the due date, at the same time as compliance by the liquidators with the duty to report to be determined on a regulated basis.
e) Require information to the liquidators on the progress of settlement.
Article 179. Protection of credit for insurance contracts.
1. In settlement processes, the following shall be considered for insurance contract
:(a) Those of the policyholders, insured and beneficiaries of an insurance contract and those of the injured parties referred to in Article 73 of Law 50/1980 of 8 October of the Insurance Contract. This includes the claims arising from the provision of the service for repair or replacement of the disaster or the assistance or the provision in kind to which the insurance undertaking would have been required in the insurance contract.
(b) Those of those who have concluded with the insurance institutions contracts affected by the provisions of Article 24 for operations carried out without administrative authorisation or have been carried out in breach of the measures of special control of the suspension of the hiring of new insurance or of the acceptance of reinsurance and of the prohibition of the extension of the contracts of insurance concluded, provided for in Article 161 (c) and (d) respectively.
(c) Appropriations satisfied by the Insurance Compensation Consortium under the provisions of Article 11 (e) of the recast of the Act on Civil and Safe Liability in the Movement of Motor Vehicles, adopted by Royal Decree-Law 8/2004 of 29 October.
2. The insurance contract credits shall be considered as credits with special privilege on the following goods and rights:
(a) Assets allocated to technical provisions in the special register of assets for settlement purposes and those assigned to the mandatory capital requirements of the insurance undertaking. They also have such consideration of this type of assets of the insurance undertaking which, in breach of the applicable rules, do not appear in the register duly allocated.
(b) The goods in respect of which the special control measure for the prohibition of disposal has been adopted, even if such a measure has not been the subject of registration.
3. For the purposes of the settlement, institutions shall keep a special register of assets representing the technical provisions calculated and invested in accordance with the rules applicable. The requirements of that special register of assets shall be regulated by regulation.
4. The payment of the insurance contract credits shall be made from the goods and the affected rights, with the benefit of a pro rata, preferably on any other credit.
In respect of claims against the insurance institution which do not benefit from the priority referred to in paragraph 2, the system of precedence established by Law 22/2003 of 9 July, Insolvency, shall apply.
Article 180. Legal status of liquidators.
1. The good repute, qualification and professional experience of the liquidators shall be in accordance with the criteria laid down in Article 38 for administrators.
2. Liquidators shall be subject to the same administrative liability regime as the administrators of an insurance undertaking.
Article 181. Settlement process.
1. The liquidators shall, in union with the administrators, take stock of the inventory, a census of the members or mutualists who are at the time of the dissolution and the balance sheet of the institution and shall submit them, within a period not exceeding one month from their date of appointment, to the Directorate-General for Insurance and Pension Funds or, if the settlement is brought, to the financial controller.
2. Liquidators shall take the necessary measures to finalise the settlement as soon as possible, and may transfer the entity's insurance contract portfolio in a partial, total or global form, subject to authorisation, as well as to agree to the rescue. or resolution of insurance contracts.
3. The disposal of the buildings may take place without a public auction when the settlement is brought in or when, having been assessed for these purposes by valuation companies authorised and registered in the Register of the Banco de España, the price of disposal is not less than the valuation. It will, in any case, require prior authorisation from the Directorate-General for Insurance and Pension Funds.
4. Where the value of performing an asset is less than its estimated value in the special register of assets for settlement purposes, the liquidators shall justify this situation to the Directorate-General for Insurance and Pension Funds.
5. Once all the appropriations have been paid, the liquidators shall provide the distribution of the resulting liquid between the partners or, where appropriate, between the mutualists in the terms provided for in this Law. In the case of an insurance cooperative, the distribution of the resulting liquid shall be governed by the law of cooperatives that is applicable.
6. Once the liquidation operations have been completed and, where appropriate, the division of the assets resulting from the liquidation, the Minister of Economy and Competitiveness shall declare the entity in liquidation extinguished and the seats in the liquidation shall be cancelled. administrative registration, publishing this resolution in the "Official State Gazette".
The cancellation in the administrative register will determine, in the entity's declaration of extinction, the subsequent cancellation in turn in the Commercial Registry and in the Register of Cooperative Societies, when it is is the legal form.
By way of exception, the seats in that administrative register shall be cancelled without declaration of extinction of the entity, and at that time the activity may be initiated according to the amended social object, when it has the general transfer of the portfolio or the revocation of the authorisation, provided that, in both cases, the social object of the institution has been amended without dissolution of the institution and the Directorate-General for Insurance and Pension Funds has previously been verify that the portfolio transfer has been executed or the insurance operations have been wound up; respectively.
7. During the liquidation period, the entity may offer the Minister of Economy and Competitiveness the removal of the cause of dissolution and request the rehabilitation of the revoked administrative authorization. Such rehabilitation may be granted only if the institution meets all the conditions required during normal operation and ensures all the rights of insured persons and creditors, including those whose insurance contracts have been declared due during the liquidation period. If the rehabilitation of the revoked administrative authorization is agreed upon, the cause of dissolution shall be deemed to be completely removed, the registration practiced in the Commercial Registry shall be cancelled, and the rehabilitation agreement shall be given advertising that the provision imposes for the dissolution agreement.
Article 182. Effects on shares against insurance institutions in liquidation.
1. In the case of winding-up proceedings or taken over by the Insurance Compensation Consortium, and in respect of the goods in respect of which the prohibition measure under Article 160.1.c has been adopted, they may not be registered in the (a) public records of collateral rights and/or any judicial injunctions or administrative arrangements, from the date of publication in the 'Official Gazette of the State' of the ministerial order for dissolution, without prejudice to the the effectiveness of the appropriations which, where appropriate, are intended to be guaranteed by the said inscriptions or annotations.
The records in charge shall indicate on a marginal note the fact of the dissolution and the closing of the registered portfolio to the acts referred to in the preceding paragraph. If the rehabilitation of the revoked administrative authorisation is agreed, the relevant marginal note shall be cancelled.
2. In the case of liquidation brought by the Ministry of Economy and Competitiveness, the individual shares exercised by the creditors, before the commencement of the liquidation or during the liquidation, may continue until the a final judgment, but its execution shall be suspended and the claim which, if appropriate, declares that judgment in its favour shall be settled with those of the other creditors. However, after one year after the judgment becomes final, the suspension shall be automatically lifted without the need for a declaration or a resolution in this respect, whichever state the settlement was in.
The provisions of the preceding paragraph do not apply to shares in the exercise of real rights over goods located outside the Spanish territory, which shall be governed by their specific legislation, or to the shares in the financial year of a real right of guarantee to be governed by a law other than the Spanish law.
Section 3. Liquidation by the Insurance Compensation Consortium
Article 183. Performance of the Insurance Compensation Consortium in the liquidation of insurance and reinsurance entities.
The Insurance Compensation Consortium, hereinafter the Consortium, will assume the status of liquidator of the Spanish insurance companies and reinsurers, whatever their form or legal nature, in the cases provided for in this Law and in the recast text of the Legal Statute of the Insurance Compensation Consortium, approved by the Royal Legislative Decree 7/2004 of 29 October.
Article 184. Substantive general rules.
1. The Consortium shall replace all the social bodies of the institution whose liquidation has been entrusted to it. Accordingly, there shall be no place for the holding of the ordinary or extraordinary meetings or assemblies of shareholders, mutualists or cooperative members of the institution.
However, the administrative and legal-administrative resources brought by the insurer or reinsurer against the supervisory acts of the Ministry of Economy and Competitiveness prior to the assumption the settlement by the Consortium may be continued by the administrators on their own behalf, if they are to be made available to the administrative or judicial body within one month of publication in the Official Gazette of the Status " of the discharge to the Consortium.
2. The Consortium, as a liquidator, representing creditors and in defence of their rights, shall, where there is a place to do so, require the requirement of any liability of any kind, civil or criminal, without any obligation to provide any security, in which may have been incurred by those who have been in charge of administration or management of the institution in liquidation.
When, as a result of these actions, the courts will point out indemnities or any other economic compensation in favor of the entity and have ended its liquidation, the Consortium, if it had been agreed in the settlement plan approved by the Board of Creditors, shall distribute the amount obtained among the creditors who have not recovered all of their claims, in accordance with the criteria set out in the said settlement plan and in the the case of a solvent entity between the entity's partners or mutualists.
3. In no event shall the Consortium, its organs, representatives or proxies be considered debtors or liable for the obligations and responsibilities incumbent upon the entity whose liquidation is entrusted to it, or its administrators.
4. In the intervening settlements, the settlement intervention shall cease at the time the Consortium is entrusted.
5. In the case of the existence of subsidiaries, which are mainly owned by the insurer or reinsurer in liquidation and whose social object is the management of assets on behalf of the institution in liquidation, it is entrusted to the Consortium of the the liquidation of the insurance or reinsurance undertaking shall involve the appointment of the insurer or reinsurer as liquidator of such subsidiary entities, with the replacement of all the social bodies, sufficient for the registration of such appointment in the Register Trade in the corresponding administrative decision declaring the joint liquidation of the group of companies.
The liquidation of the subsidiary entities will be carried out in accordance with the rules of the consolidated text of the Law of Capital Companies, approved by Royal Legislative Decree 1/2010, of July 2. If the subsidiary is insolvent, the Consortium shall be exempt from applying for the competition, with all settlements being processed in a coordinated manner.
6. The assignment of the liquidation of an insurance or reinsurance entity to the Consortium shall mean the change of its registered office, to all legal effects, to the address designated by the Consortium. The change of domicile shall also affect the majority of subsidiaries controlled by the institution in liquidation whose social object is the management of assets on behalf of that entity in liquidation.
For the registration of the change of registered office in the Commercial Registry and in the administrative registers, the certification of the agreement adopted, issued by the president of the Consortium, will be sufficient.
The change of address and its subsequent modifications shall be notified in the form and with the publicity that the commercial law determines for the statutory modifications.
Article 185. General rules of procedure.
The settlement procedure by the Consortium shall be in accordance with the following specialties:
1. Entrusted with the liquidation of the Consortium, all creditors shall be subject to the winding-up proceedings by the Consortium and the declaration of competition may not be requested by the creditors or the insurance institution, without prejudice to the of any kind exercised before the courts against such insurer, prior to the dissolution or during the liquidation period, continue their processing until the obtaining of a judgment or a firm judicial decision. However, the execution of the judgment, the preventive embargoes, the judicially agreed administrations and the other precautionary measures taken by the judicial authority, that of the car which takes the execution in the executive proceedings, the Summary judicial proceedings and extrajudicial executives on mortgaged or pignorised goods located in Spanish territory, as well as the execution of the administrative provisions of the award, shall be suspended from the entrustment the settlement to the Consortium and during the settlement of the settlement procedure.
2. They shall be due, to the date of publication in the "Official Gazette of the State" of the administrative decision to which the liquidation is entrusted to the Consortium, the outstanding debts of the insurer, without prejudice to the discount if the payment of those is verified before the time prescribed in the obligation, and shall cease to pay interest all the debts of the insurer, except the mortgage and pignoraticios, as far as the respective warranty.
3. The administrators or liquidators, if appointed, shall submit to the Consortium the inventory, the census of partners and mutualists, and the balance sheet of the institution within one month after the settlement has taken place, without the Consortium having to submit it to the Directorate-General for Insurance and Pension Funds or to the financial controller, or to be subject to the obligations imposed by Articles 383 and 388 of the recast of the Capital Companies Act, approved by the Royal Decree Legislative 1/2010 of 2 July.
If the necessary documentation and information are not received from the administrators or liquidators, the Consortium will formulate an inventory of the entity's assets, a census of partners and mutualists, and a debt ratio to the date of the assumption of liquidation, using the background and data at its disposal, which shall serve as the basis for the formulation of the precise documentation for the performance of the legally enforceable accounting and tax obligations, without taking into account liability in case of error or omission of data not listed in the documentation or background found.
4. In the fulfilment of the duty of information to creditors, the special circumstance that the liquidation has been assumed by the Consortium shall be expressly stated. Likewise, from the moment he becomes aware of the existence of labor credits or presumes the possibility of his existence, he will communicate it to the Fund of Salarial Guarantee, a communication that will take the effects of the citation referred to by the Article 33.3 of the recast text of the Law of the Workers ' Statute, approved by the Royal Legislative Decree 1/1995, of March 24.
5. Where the transfer of the portfolio of an institution in liquidation is automatically agreed by the Directorate-General for Insurance and Pension Funds, the provisions of the implementing regulation of this Law shall not apply as regards information public and the right of opposition.
6. The disposal of the immovable property of the insurance undertaking in liquidation may take place without a public auction and shall not require the authorisation of the Directorate-General for Insurance and Pension Funds, without prejudice to the disposal of such assets. the rules of transparency due and the need to request the lifting of the precautionary measure on the goods in question are observed.
7. As expressly stated in this Law, the rules on the liquidation and extinction of the recast of the Law of Capital Societies, approved by Royal Legislative Decree 1/2010 of 2 July, will be applicable. Law 22/2003, of July 9, Bankruptcy.
Article 186. Purchase of credits from resources of the Insurance Compensation Consortium.
1. With regard to the resources of the Consortium affected by its liquidating activity and with the aim of improving and achieving a faster satisfaction of the rights of the creditors by contract of insurance, in accordance with Article 179, including the Public authorities which have such a condition, the Consortium may offer the acquisition by cession of its claims, for the amount which would correspond to them in proportion to the foreseeable liquid resulting, taking into account, these alone effects, the following rules:
(a) All assets, rights and claims, including, where applicable, interest, of which the insurer is a holder, shall be incorporated into the asset, even if they are pending or are to be initiated judicial or extrajudicial for their maintenance on the estate of the entity or re-integration to the entity. The institution's credit claims shall be computed by its value entered, increased in interest, if applicable, and without deducting from these effects the value adjustments to be made on the basis of the possible insolvency of the institutions. debtors.
(b) The material and financial investments shall be valued for the higher than the following two: the purchase price plus the amount of improvements made on those, plus the amount of the adjustment and legally possible updates; or the realization value.
(c) Not to be taken into account, for the purposes of fixing the percentage to be offered to creditors by insurance contract as referred to in Article 179.1, the order of credit ranking and the costs of liquidation anticipated by the Consortium.
In addition, also from its own resources, the Consortium will be able to acquire the credits of the workers derived from wages and, where appropriate, the compensation due to those as a result of the extinction of the labour relations, with the limits provided for in Article 53.1.b) of the recast text of the Law of the Workers ' Statute, adopted by the Royal Legislative Decree 1/1995 of 24 March, for the alleged collective redundancies or Article 52 (c) of the Treaty on the European Parliament and the Council of the European Parliament exclusively from liquidation, subrogating to the position of those creditors in the settlement plan of the entity.
The Consortium will be able to acquire the portion of wages and compensation for extinction of the employment relationship that is payable to the Salarial Guarantee Fund, subrogating in the position of the worker in front of the agency.
The administrative decision entrusting the liquidation to the Insurance Compensation Consortium shall be sufficient to provide for the effects provided for in Article 33 (6) and (7) of the recast of the Law on the Statute of the Workers approved by the Royal Legislative Decree 1/1995 of 24 March in relation to the benefits to be paid by the Guarantee Fund.
For the purposes of Article 51 (9) and (10) of the recast of the Law of the Workers ' Statute, collective redundancies in an insolvent entity whose liquidation has been entrusted to the Consortium shall have the effect of the same treatment as undertakings in insolvency proceedings.
The Consortium will be able to acquire, for its real values and whenever appropriate for the most efficient development of its liquidating function, all manner of credits against the entities in liquidation, subrogating on the rights of the recipients, with the maintenance of the range of the credits acquired. It may also make as many conventions as it deems appropriate for a better development of the settlement process.
2. The acquisition by transfer of the claims referred to in paragraph 1 shall in no case assume the debts of the insurance undertaking in liquidation by the Consortium.
The assignment of these credits, whatever the amount satisfied, will reach the total amount of those and in the same order of preference that corresponds to them. Their owners will not be able to make any claim for this concept; they will also not be able to claim against the Consortium the holders of these credits that opt not to accept the offer made by the Consortium, who will maintain the ownership of their claims and shall be subject to the outcome of the settlement.
Article 187. Payments from the entity's resources.
The Consortium will be able to satisfy in advance, with the resources of the insurance institution in liquidation, the credits of the creditors with real right in the terms and by the order established in the mortgage legislation. If the satisfaction of such claims is not reached, the creditors referred to shall have in the settlement, in order to charge the unsatisfied amount, the preference that corresponds to them according to the nature of their credit.
Article 188. General meeting of creditors.
1. At the same time as the settlement plan is formulated, the Consortium shall convene the general meeting of creditors not less than one month and no more than two in advance. It shall be cited by means of personal notification and shall give notice to the public that, in accordance with the circumstances of the case, it considers relevant. Until the day indicated for the conclusion of the meeting, the creditors or their representatives may examine the settlement plan. Until 15 days before the date for the meeting, the exclusion or inclusion of credits may be requested, as well as the challenge of the amount of the amounts included in writing addressed to the Consortium, or by appearance before this body, by designating the documents of the liquidation or by submitting the documentation to the applicant in justification of his/her right. The Consortium shall decide on each claim without further appeal, without prejudice to the right of challenge referred to in paragraph 4 and shall make the final list of creditors.
2. The meeting shall be held on the day, hour and place indicated in the call, and may continue on consecutive days as necessary, and shall be chaired by a representative of the Consortium. All creditors included in the final list may, personally or by means of a representative. The creditors ' meeting shall be legally constituted if the claims of the concurrent and represented add up to at least three fifths of the debtor's liability on the first call and whatever the number of the concurrent claims and represented on the second call; between one and the other shall be at least twenty-four hours.
3. Declared legally constituted by the board by the representative of the Consortium, will begin the session by the reading of the plan of liquidation and will proceed to the debate and subsequent vote on it. The settlement plan shall be deemed to have been approved provided that they vote in favour of the creditor plan whose claims are more than half of the amount of the appropriations present and represented, both at first and second convocation, and shall be obliged all creditors for that purpose, without any right of abstention, and where the provisions of Article 10.3 of Law 47/2003 of 26 November, General Budget, are applicable to the Public Finance.
If the settlement plan is not approved by the creditors, the Consortium will request the tender declaration.
4. Within eight days following the conclusion of the meeting, creditors who have not attended it or who, by concurring, have disagreed with the majority vote or who have been eliminated by the Consortium from the final list referred to in paragraph 1, they may contest the winding-up plan judicially. Impeachment can only be founded on the following grounds:
a) Defects in the prescribed forms for the convocation, celebration, deliberation and adoption of agreements of the creditors ' meeting.
(b) Lack of capacity or representation in any of the voters, including or excluding undue credits or appearing on the final list of creditors with a greater or lesser amount than is deemed to be fair, provided that in either of these cases the estimate of the pretense has a decisive influence on the formation of the majority.
c) Error in estimating the asset or the credit ranking suffered by the Consortium.
In all else, the challenge of the settlement plan will be in accordance with the provisions of Law 22/2003, of July 9, Bankruptcy, for the opposition to the approval of the agreement.
5. After the time limit referred to in paragraph 4 has not been expressed, or once a final judgment has been given, the Consortium shall ratify the settlement plan, adjusting it to any changes that may have been made. of the vote in the Board of Creditors or, where appropriate, those introduced by the final judgment that has resolved the challenge and the oversold variations in the assets.
6. The Consortium shall pay the appropriations in implementation of the approved settlement plan. The unclaimed credits shall be entered in the deposit in the Consortium itself at the disposal of its rightful owners for a period of twenty years, after which, without having been claimed, they will be admitted to the Treasury. The settlement plan shall be executed, the entity shall be extinguished and the records shall be cancelled in the manner provided for in Article 181.6. The provisions of Article 400 of the Recast Text of the Law on Capital Societies, approved by Royal Legislative Decree 1/2010 of 2 July, will apply.
7. If, as a result of the time lag, other than the case of challenge of the settlement plan provided for in paragraph 5 of this same Article, between the general meeting of creditors of the settlement plan and the cash payment of the credit to creditors, and where appropriate, the division of the social haber between the partners, as a result of a remainder or in excess of assets, shall be incorporated into the assets of the Consortium for the purposes set out in the following paragraph.
8. The claims recognised by a firm judgment notified to the creditor at a later date to the conclusion of the general meeting of creditors, as well as those which the Consortium recognises, as they are adjusted to the right, after that date. The Board of Directors shall be satisfied by the Consortium with the remainder referred to in the previous paragraph and, failing that, with its own resources in the same terms as it would have been included in the settlement plan. In the case of insurance contract credits referred to in Article 179, the percentage to be paid shall, where appropriate, be the one approved for the purposes of the winding-up benefits of Article 186 if it is higher than the one resulting from the settlement.
9. Where the insurance undertaking in liquidation is in a position of insolvency, if the settlement plan is approved by the creditors ' meeting, the recovery by the Consortium of settlement expenses shall be conditional upon them being fully satisfied the other recognised in the settlement.
Article 189. Performance of the Insurance Compensation Consortium in the procedures conformed.
1. The judge, in the light of the report issued by the Directorate-General for Insurance and Pension Funds in accordance with the provisions of Article 168.2, may, on its own initiative, agree to the opening of the winding-up phase without further formalities, with the effect of Articles 143 et seq. of Law 22/2003, of 9 July, Insolvency and with the specialties provided for in this Law. In this case, the insolvency administration shall, simultaneously with the report provided for in Article 74 of Law 22/2003 of 9 July, present the settlement plan in accordance with Article 148 of the same law.
2. The insolvency administration of an insurance undertaking shall be exercised exclusively by the Insurance Compensation Consortium. Similarly, in the event of a request for a Insolvency Mediator as provided for in Article 5a of that Law, the appointment shall be made to the Insurance Compensation Consortium.
3. In any event, in the cases of judicial declaration of competition of insurance institutions, the Consortium of Insurance Compensation, in addition to assuming the functions attributed to it by article 14.2 of the recast text of its Legal Statute, approved by Royal Decree-Law No 7/2004 of 29 October 2004, where appropriate, it will proceed to the settlement of the amount of the goods referred to in Article 179.2 for the sole purpose of distributing it to the insured, beneficiaries and injured parties, without prejudice to the rights that continue to be provided in the insolvency proceedings.
Within the contest, the creditors by contract of insurance shall have the consideration of specially privileged creditors in the terms provided for in Article 179.
4. If the insured entity has no liquidity required, the Consortium may anticipate the costs that are accurate, from its own resources, for the proper development of the insolvency proceedings. However, payment of the rights of procuratorates and fees of lawyers involved in the application or opposition to the contest, as well as in the incidents and resources which may be derived, shall be taken into account by the parties which appoint them, without proceeds from the Consortium's advance.
5. The appropriations with special privileges of the creditors for insurance contracts referred to in Article 179 may be satisfied during the common phase of the competition if the insolvency administration, under the responsibility of the assets, is deemed to be appropriate. as referred to in Article 186, whether the payment can be made without the need for its disposal as if the payment is necessary, the disposal to be carried out by the Insurance Compensation Consortium in accordance with paragraph 3.
6. The Consortium may apply the settlement benefits of Article 186 without prejudice to the effect of the liquidation of the goods concerned in the manner provided for in paragraph 3.
7. The report on the rating provided for in Article 175 (3) of Law 22/2003, dated 9 July, is to be issued by the Consortium as the settlement body of the entity, which will be an interested party in the incident on behalf of creditors. The same shall be transmitted as soon as the Consortium has had the possibility to know sufficiently the background and situation of the entity, to determine the asset inventory and the relationship of creditors and to be able to issue a reasoned report on the causes of the insolvency and the corresponding qualification. For these purposes, the Judge shall suspend the opening of the autonomous section of qualification provided for in Article 174 of Law 22/2003, of 9 July, until the liquidator notifies him that he is already in a position to issue the report, which in any case shall always be prior to the call of the Board of Creditors.
8. After the contest has been completed, if the contest has been finally settled, the provisions of Article 188.8 will apply.
TITLE VIII
Violations and penalties
CHAPTER I
Violations
Article 190. Infringing subjects.
1. Any natural or legal person who incurs the actions or omissions that have been classified as an offence under this Law, and in particular the following:
a) Insurance or reinsurance entities.
(b) Insurance holding companies, mixed financial holding companies and mixed insurance holding companies, where they are the parent of a group of insurance entities subject to supervision and the companies of mutual group, as provided for in Title III.
(c) Entities which, where appropriate, are required to formulate and approve the consolidated accounts of the groups of insurance and reinsurance entities referred to in Article 84.
(d) The entities required of financial conglomerates in the case of an insurance undertaking or a mixed financial holding company, provided that in the latter case it corresponds to the Directorate-General for Insurance and Funds Pensions shall be the responsibility of the coordinator of the supplementary supervision of that financial conglomerate.
e) Natural persons or entities that hold significant holdings in insurance or reinsurance entities.
(f) Persons who exercise the effective management, under any title, in any of the entities described in the preceding letters or exercise in them any of the functions of the system of government provided for in the Article 65.3.
g) Persons for whom a prohibition or mandate is legally established in relation to the objective scope of this Law.
h) The liquidators of insurance or reinsurance entities.
2. In relation to point (f) of the preceding paragraph, they shall be deemed to have effective management, under any title, who hold administrative and management positions in the entity under the terms of Article 38.2, as well as those who, without Formally appointed, they de facto perform such responsibilities.
Article 191. Liability of members, liquidators or management and management positions.
1. The offenders referred to in points (e) to (h) of Article 190.1, where they are responsible for the offences committed by the institutions, may be the only ones to be punished by the commission.
2. For the purposes of the preceding paragraph, they shall not be held liable for the offences committed by the entities listed in points (a), (b) and (c) of Article 190.1, who exercise administrative positions, in the following cases: cases:
(a) Where those who, as part of the collective administration bodies, have not been assisted by reason of the relevant meetings or have voted against or have saved their vote in relation to the decisions or agreements that would have resulted in the infringements.
(b) Where such offences are solely attributable to executive committees, delegated members, directors-general or similar bodies, or other persons with functions provided for in Article 65.
The absence of liability shall not exempt from the obligation to replace the altered state to its original state, as provided for in Article 206.1, in the event that it has obtained profits from the decisions or agreements which would have resulted in the infringements.
Article 192. Sanctioning powers in respect of insurance companies domiciled in other Member States.
Insurance companies domiciled in other Member States operating in Spain under the right of establishment or under the freedom to provide services are subject to the authority of the Ministry of Economics and Competitiveness in the terms of this Title in terms of implementation and with the following details:
(a) The sanction of revocation of the authorisation shall be understood as being replaced by the prohibition on the initiation of new operations in the Spanish territory as well as the prohibition of renewal of the existing policies.
(b) The initiation of the procedure shall be communicated to the supervisory authorities of the home Member State so that, without prejudice to the penalties provided for under this Law, they shall take the measures they deem appropriate. so that, where appropriate, the entity terminates its infringing action or avoids its reiteration in the future. The Ministry of Economic Affairs and Competitiveness shall notify the decision taken to the authorities concerned.
(c) Charges of administration and management of branches are considered to be the proxy and other persons who effectively conduct such a branch.
Article 193. Classes of violations.
Violations are classified into very severe, severe, and mild.
Article 194. Very serious infringements.
They will be considered very serious violations:
1. Failure to comply with the obligation to have the minimum capital required.
2. Non-compliance with the obligation to have the own funds eligible to cover the Solvency Capital Requirement, where a deviation of 20% or more is derived from this non-compliance.
3. Failure to comply with the rules on the valuation of assets and liabilities, including technical provisions, in such a way as to produce a deviation of more than 20% in the calculation of eligible own funds to cover the capital Mandatory solvency.
4. Failure to comply with the rules concerning the calculation of the Solvency Capital Requirement where this default is derived by a deviation of 20% or more.
5. Lack of legally required accounting, as well as non-compliance with the obligation to submit annual accounts to audit accounts in accordance with current legislation.
6. The exercise of activities other than the social object which are legally determined to be exclusive or the conduct of operations prohibited by law or order of law or with a breach of the requirements established in these areas, unless it has a purely occasional or isolated character.
7. In the event of insufficient mandatory minimum capital or the Solvency Capital Requirement, no communication shall be made to the Directorate-General for Insurance and Pension Funds in the cases and time limits laid down in Articles 156 and 157 or not present the financing or recovery plan provided for in the above Articles.
8. Failure to comply with the obligation to communicate in time the existence of the cause of dissolution.
9. Repeated non-compliance with the special control measures referred to in Articles 160 and 161. For these purposes, it is understood that the non-compliance has the character of repeated when the decision to adopt the measures is not complied with and does not meet within the period granted the requirement that the General Directorate of Insurance to the effect and Pension Funds.
10. To present deficiencies in the system of government, especially in relation to the functions of risk management, internal control, verification of compliance and actuarial, as well as in the outsourcing of functions or activities, when such (a) a reduction in the solvency or the risk of the viability of the insurance or reinsurance undertaking or the group defined in Article 131.1.f), or a financial conglomerate to which it belongs.
11. The failure to refer to any data or documents must be supplied to the Directorate-General for Insurance and Pension Funds, or the lack of veracity of the data, where the sound and prudent management of the institution is jeopardised. insurer or reinsurer or the group defined in Article 131.1.f), or financial conglomerate to which it belongs, or the assessment of its solvency is difficult and where it has been correctly submitted that the institution or group or Financial conglomerate would be out of the way because of the adoption of special control measures, in situations of financial impairment or in situations that result in the requirement of additional mandatory solvency capital.
12. The acquisition or increase of a significant participation in an insurance or reinsurance undertaking in breach of Article 85, where this transaction involves the transmission of control therein.
13. The transfer of portfolio, transformation, merger, division and extinction of insurance or reinsurance entities without the required authorisation or, where granted, without adjustment to it.
14. The excuse, refusal or resistance to the performance of the inspector, provided that I measure the express and written request in this respect. Any action or omission by the entity or persons with whom the actions which store unduly dilate, hinder or prevent such actions shall be considered as an excuse, refusal or resistance to action.
15. Failure to publish the report on the financial and solvency situation.
16. The lack of remission by the insurance companies operating in class 8 of Annex A) (a): Fire and natural elements of the information to be supplied for the purposes of the liquidation and collection of the fees for the maintenance of the service the prevention and extinction of fires of special contributions by the establishment or extension of the fire prevention and extinguishing service, in compliance with the obligation laid down by the additional provision fourteenth, when such conduct has a repeat character.
17. The implementation of acts or operations which are contrary to the rules on market transparency and the protection of the rights of users in the field of insurance, provided that the number of persons concerned, the reiteration of the conduct or the effects on customer confidence and the stability of the financial system, such breaches can be estimated to be particularly relevant.
18. Unduly withhold, without entering into time, the mandatory surcharges collected in favor of the Insurance Compensation Consortium.
19. Failure to comply with the obligation to provide the competent body with the information referred to in the legislation governing the registration of death cover insurance contracts, as well as the lack of accuracy of the information referred, when this conduct has a repeat character.
20. The lack of referral of the information referred to in Article 2.2 of the recast of the Act on Civil and Safe Liability in the Movement of Motor Vehicles, adopted by Royal Decree-Law 8/2004 of 29 October and its detailed rules, as well as the lack of accuracy of the information referred to where the effective enforcement of the insurance obligation or the identification of the insurance undertaking which is to take the damage is difficult to carry out. damage caused in a road accident, provided that such conduct is of a nature repeat.
21. Failure to comply with the duty of information due to its partners, the insured and the general public, as well as the failure to comply or defective the reporting obligations to the insured and mutualists of the future estimated rights derived from instruments of a complementary or alternative nature to social security which provide for retirement commitments, provided that the number of persons concerned or the importance of the information is such that such non-compliance can estimated to be particularly relevant.
Article 195. Serious infringements.
Serious violations will be considered:
1. Failure to comply with the obligation to have the own funds eligible to cover the Solvency Capital Requirement, where a deviation of 10% or more is derived from this non-compliance, does not constitute a very serious infringement severe.
2. Failure to comply with the rules relating to the valuation of assets and liabilities, including technical provisions, in such a way as to produce a deviation equal to or greater than 10% in the calculation of eligible own funds to cover the the Solvency Capital Requirement where it does not constitute a very serious infringement.
3. Failure to comply with the rules relating to the calculation of the Solvency Capital Requirement where a deviation of 10% or more is derived from that non-compliance and does not constitute a very serious infringement.
4. Failure to comply with the rules on the accounting of transactions and the formulation of annual accounts, provided that it does not constitute a very serious infringement, as well as those relating to the preparation of the financial statements required for the General Directorate of Insurance and Pension Funds.
5. The merely occasional or isolated conduct of activities outside the exclusive social object or of acts or operations prohibited by rules of ordination and supervision or with non-compliance with the requirements laid down therein.
6. Failure to comply with the obligation to communicate in time the dissolution agreement or the request for administrative dissolution.
7. To present deficiencies in the system of government, especially in relation to the functions of risk management, internal control, internal audit, actuarial, as well as in the outsourcing of functions or activities and provided that constitutes a very serious infringement.
8. The lack of remission of any data or documents must be supplied to the Directorate-General for Insurance and Pension Funds, or the lack of veracity of the referrals, when this makes it difficult to assess the solvency of the institution. insurer or reinsurer or group defined in Article 131.1.f), or financial conglomerate to which it belongs and, where it has been correctly presented, a decrease in the declared solvency ratios is reduced.
9. The repeated failure to comply with the agreements or resolutions of the Directorate-General for Insurance and Pension Funds. For these purposes, it is understood that the non-compliance has the character of repeated when an agreement or resolution is violated and the requirement that the General Directorate of Insurance and Pension Funds has to do so is not addressed.
10. The acquisition or increase of a significant participation in an insurance or reinsurance undertaking in breach of the provisions of Article 85.
11. The non-compliance by the liquidators, or by those who served as management or management in the five years prior to the date of dissolution, of the obligations imposed on them by Article 180.
12. Do not collect in the form and term from which they are unduly unduly and, in general, fail to fulfil their obligations to collect the surcharges that are legally enforceable in favour of the Insurance Compensation Consortium.
13. Failure to comply with the duty of information due to its partners, mutualists, policyholders or the general public, as well as the carrying out of any acts or operations with non-compliance with the rules of advertising and duty information of insurance or reinsurance entities.
14. The lack of replacement, as provided for in Article 38.3, of those in whom there is a cause of incapacity or prohibition, as well as the lack of referral to the Directorate-General for Insurance and Pension Funds of the necessary information for the assessment of the requirements of good repute and fitness, and their incomplete remission or lack of accuracy in the information submitted.
15. Failure by the insurer to comply with the mandatory rules of the specific legislation on insurance contract, where over the two years prior to its commission more than ten requirements of the Directorate-General would have been neglected. Insurance and Pension Funds within the time limit granted for the purpose, because the complaints and complaints raised in the administrative protection procedure of the financial services clients have been well founded, if they are not considered as a very serious infringement.
16. The implementation of acts or operations with non-compliance with the rules on market transparency and protection of the rights of users in the field of insurance, provided that this does not involve the commission of a very serious infringement of in accordance with the provisions of the previous Article, unless it is occasional or isolated.
17. Discriminatory conduct on grounds of sex against the insured, insured, beneficiaries or injured parties, where they have been so declared by judicial judgment, in accordance with the rules on the effective equality of men and women women.
18. The absence or malfunctions of the departments or services of customer service, once the period granted to the effect by the Directorate General of Insurance and Pension Funds has elapsed, has not been carried out deficiencies detected by this.
19. Failure to comply with the obligation to provide the competent body with the information referred to in the legislation governing the registration of death cover insurance contracts, as well as the lack of accuracy of the information submitted.
20. Failure to comply with special control measures when not considered to be very serious.
21. The lack of remission by the insurance companies operating in class 8 of Annex A) (a): Fire and natural elements of the information to be supplied for the purposes of the liquidation and collection of the fees for the maintenance of the service the prevention and extinction of fires or special contributions by the establishment or extension of the fire prevention and extinguishing service, in compliance with the obligation laid down by the Additional Disposition fourteenth.
22. The lack of referral of the information referred to in Article 2.2 of the recast of the Act on Civil and Safe Liability in the Movement of Motor Vehicles, adopted by Royal Decree-Law 8/2004 of 29 October and its detailed rules, as well as the lack of accuracy of the information referred to where the effective enforcement of the insurance obligation or the identification of the insurance undertaking which is to take the damage is difficult to carry out. damage caused in a road accident.
23. Failure to fulfil the obligation to submit the reasoned offer or give the reasoned reply referred to in Articles 7 and 22.3 of the recast of the Act on Civil and Safe Liability in the Movement of Motor Vehicles, adopted by the Real Legislative Decree 8/2004, of October 29, when such conduct has a repeat character.
Article 196. Minor infractions.
They will have the consideration of minor infractions:
1. Failure to comply with the obligation to have the own funds eligible to cover the Solvency Capital Requirement where this default is derived from a deviation of less than 10%.
2. Failure to comply with the rules relating to the valuation of assets and liabilities, including technical provisions, in such a way as to result in a deviation from the calculation of the eligible own funds to cover the Solvency Capital Requirement less than 10 percent.
3. Failure to comply with the rules on the calculation of the Solvency Capital Requirement where this default is derived from a deviation of less than 10%.
4. The non-time remission of any data or documents must be supplied to the Directorate-General for Insurance and Pension Funds, or their lack of accuracy when it does not constitute a serious or very serious infringement. In particular, the referral, outside the time-limits and form, of the documentation and information necessary to enable the updated administrative register to be carried out in accordance with Article 40.
5. Failure by the insurer to comply with the mandatory rules of the specific legislation on insurance contracts, if it does not meet within one month the requirement that the General Directorate of Insurance and Funds of the European Union will give to it. Pensions when the complaints and complaints raised in the administrative protection procedure of the financial services clients are well-founded.
6. To cease to have significant participation in breach of the provisions of Article 85.
7. To submit in an incomplete or inaccurate manner the financial statements required to be communicated to the Directorate-General for Insurance and Pension Funds.
8. Failure to comply with the agreements or resolutions of the Directorate-General for Insurance and Pension Funds, where it does not constitute a serious infringement.
9. The implementation of acts or operations which are contrary to the rules on market transparency and the protection of the rights of users in the field of insurance, where they do not constitute a serious or very serious infringement in accordance with the provisions of the two previous articles.
10. Failure to fulfil the obligation to submit the reasoned offer or give the reasoned reply referred to in Articles 7 and 22.3 of the recast of the Act on Civil and Safe Liability in the Movement of Motor Vehicles, adopted by the Real Legislative Decree 8/2004 of 29 October, when it does not constitute a serious infringement.
11. Failure to comply with the decision issued by the client defender of an insurance institution when it is in favour of a claim made by a policyholder, insured, beneficiary or injured third party.
12. Enter the surcharges collected in favor of the Insurance Compensation Consortium out of time.
13. In general, non-compliance with mandatory requirements for insurance companies falling within the scope of the Law on the supervision of private insurance, provided that they do not constitute a serious or very serious infringement. For these purposes, rules for the supervision of private insurance shall be understood to mean those covered by this Law and its regulatory provisions for development and, in general, those which appear in rules containing precepts of enforcement. referred to the objective scope of this Act.
Article 197. Limitation of violations.
1. Very serious infractions will be prescribed at five years, the serious ones, at four and the mild, at two years.
2. The limitation period for infringements shall begin to be counted from the day on which the infringement was committed. In the case of infringements resulting from an ongoing activity, the initial date of the calculation shall be the date of completion of the activity or of the last act with which the infringement is consumed.
3. It shall interrupt the initiation of the sanctioning procedure with the knowledge of the person concerned, and shall resume if the sanctioning file has been brought to a standstill for more than two months for reasons not attributable to the alleged person responsible.
It will also interrupt the limitation of the initiation, with the knowledge of the person concerned, of the inspection procedure in which the commission of the infringement is revealed and will resume once the resolution that puts end of the procedure.
CHAPTER II
Sanctions
Article 198. Administrative penalties for entities for very serious infringements.
For the commission of very serious infractions, one or more of the following sanctions will be imposed on the offending entity:
a) Revocation of the administrative authority.
(b) Suspension of the administrative authorisation to operate in one or more branches in which the insurance undertaking is authorised or to operate in one or more of the activities in which the reinsurer is authorised; for a period not exceeding 10 years and less than five years.
c) Multa for a maximum amount of 1 percent of its business volume and greater than EUR 240,001. For these purposes, the term 'business volume' shall be understood as the period of time, understood as the premiums written corrected with the change in the provision for unconsumed premiums, in the last financial year closed before the end of the year. Commission of the infringement. For entities operating under the right of establishment or freedom to provide services, this figure shall relate to the volume of business in Spain.
This sanction may be imposed simultaneously with the penalties provided for in points (a), (b) and (d).
d) Public assembly with publication in the "Official State Gazette".
This sanction may be imposed simultaneously with the penalties provided for in points (a), (b) and (c).
Article 199. Administrative penalties for entities for serious infringements.
For the commission of serious infractions, one or more of the following sanctions shall be imposed on the offending entity:
(a) Suspension of the administrative authorisation to operate in one or more branches in which the insurance undertaking is authorised or to operate in one or more of the activities in which the reinsurer is authorised; for a period of up to five years.
b) Mull for a maximum amount of EUR 240,000 and above EUR 60,000.
This sanction may be imposed simultaneously with the penalties provided for in points (a) and (c).
c) Public assembly with publication in the "Official State Gazette".
This sanction may be imposed simultaneously with the penalties provided for in points (a) and (b).
Article 200. Administrative penalties for entities for minor infringements.
For the commission of minor infractions, one or more of the following sanctions will be imposed on the offending entity:
a) Multa for maximum amount of 60,000 euros.
b) The private assembly.
Article 201. Liability in case of merger, global transfer of assets and liabilities or excision.
In the case of entities extinguished by merger, global transfer of assets and liabilities or division, the administrative responsibility of those entities for penalties of fines in the area of supervision of private insurance shall be (a) the acquiring or newly created entity, taking into account, in the case of a division, the percentage of the assets acquired.
Article 202. Penalties for very serious violations committed by members, liquidators, by whom, under any title, they exercise the effective direction and by whom they perform the functions that make up the system of government.
For the commission of very serious violations, one or more of the following sanctions may be imposed on each offender:
(a) Separation of the charge, with disablement to exercise management, management, settlement and performance of the functions provided for in Article 66 in any insurance or reinsurance entity, for a maximum period 10 years.
(b) Temporary suspension in the exercise of the term of office of not less than one year and not more than five years.
(c) Multa for a maximum amount of EUR 500 000 and more than EUR 150 000. This sanction may be imposed simultaneously with the penalties provided for in points (a) and (b)
d) Public assembly with publication in the "Official State Gazette". This sanction may be imposed simultaneously with the penalties provided for in points (a), (b) and (c)
Article 203. Penalties for serious violations committed by members, liquidators, by whom, under any title, they exercise the effective direction and by whom they perform the functions that make up the system of government.
For the commission of serious infringements, one or more of the following sanctions may be imposed on each offender:
(a) Temporary suspension in the exercise of the term of office not exceeding one year.
(b) Fine for a maximum amount of EUR 150 000 and more than EUR 30 000. This sanction may be imposed simultaneously with the sanction provided for in point (a).
c) Public assembly with publication in the "Official State Gazette". This sanction may be imposed simultaneously with the penalties provided for in points (a) and (b)
Article 204. Penalties for minor infractions committed by members, liquidators, by whom, under any title, they exercise the effective direction and by whom they perform the functions that make up the system of government.
For the commission of minor infractions, one or more of the following sanctions may be imposed on each offender:
a) Multa for maximum amount of 30,000 euros.
b) The private assembly.
Article 205. Criteria for the graduation of sanctions.
1. The imposition of penalties shall take into account the factors of aggravation or attenuation that may arise.
2. The following circumstances shall be considered to be aggravating or mitigating, depending on the circumstances:
(a) The nature and number of facts constituting the infringement, as well as the degree of intentionality in their commission.
b) The severity of the hazard created or the damage caused.
(c) The gains obtained, if any, as a result of the acts or omissions constituting the infringement.
(d) The conduct previously developed by the offender in relation to the commission of infringements of the same nature, as provided for in Articles 194, 195 and 196, which have not been prescribed and have been declared by firm resolution.
e) The degree of responsibility in the facts that the offender concurs.
f) The relevance of the position occupied or the functions performed by the person in the organizational structure of the entity.
g) The unfavorable consequences of the facts for the insurance sector, the financial system or the national economy.
h) To have voluntarily made reparation for damages caused.
i) The size of the offending entity measured on the basis of the total amount of its balance sheet, and the turnover, measured on the basis of the amount of its premium volume in the last financial year ended prior to the commission of the infringement.
j) The consequences that the amount of the penalty to be imposed could have on the continuity or viability of the offending entity.
(k) In the case of insufficient Solvency Capital Requirement or Minimum Capital Requirement, any objective difficulties that may have been encountered in order to achieve or maintain the legally required level.
(l) The remuneration obtained by the offender in the exercise of his office, as well as his or her economic situation and other personal circumstances.
m) The level of cooperation of the offenders in the clarification and processing of sanctioning files.
3. The aggravating or mitigating circumstances of the infringements shall be applied for each individual offender and for each offence committed, and may be regarded as highly qualified in the light of their particular relevance.
4. The penalties to be imposed shall be divided into three degrees, minimum, medium and maximum. Each grade shall comprise the result of dividing the maximum amount of time or the pecuniary amount provided for in the penalty to be imposed in three instalments. Taking into account the concurrency or non-extenuating or aggravating circumstances, the sanction shall be fixed according to the following rules:
a) Where more than two circumstances of aggravation were present in the very serious infringements, and at least two of them were highly qualified, the penalty provided for in Article 198.a) and, where appropriate, the Article 202.a). For graduation in the latter, it will be attended to the concurrence of other circumstances other than the two of aggravating very qualified determinants of the imposition of this sanction.
(b) Where in very serious and serious infringements there are circumstances of aggravation and at least one of them is highly qualified, the penalties provided for in Article 198.b) or Article 199.a) shall be imposed and, where appropriate, Article 202.b (b) or (3) (a), respectively, provided that the circumstances of the application of the provisions of point (a) above are not met in the very serious infringements. In addition, in all cases and in accordance with the criteria set out in paragraph 2, the penalty shall be applied to the concurrence of other circumstances other than that of a very qualified aggravation determining the imposition of such penalties. penalties.
c) Where circumstances of aggravation and mitigation for the same offence are present, they shall be rationally compensated for the determination of the penalty, by graduating the value of each other, and by applying to following criteria:
1. When a single aggravating circumstance occurs, the penalty will be imposed in the middle grade.
2. When multiple circumstances of aggravation, or a very qualified single, are present, the penalty shall be imposed to the maximum degree.
(d) Where no mitigation or aggravation circumstances are present, or if they are compensated, the penalty shall be imposed to the minimum degree.
(e) In general, within the limits of each grade, the amount of the penalty shall be in the middle of the degree to which it corresponds, with the result that it shall be motivated otherwise, and taking into account that it is in circumstances The penalty to be applied will be the one resulting from multiplying the amount of half of the grade by 0.5 as many times as circumstances of attenuation. If an attenuation circumstance is considered to be highly qualified, it shall be computed as if it were two attenuation circumstances that have no such consideration.
(f) Where several penalties are imposed simultaneously for the same infringement, the existing aggravating or mitigating circumstances shall apply for the graduation of all penalties corresponding to that infringement.
Article 206. Measures inherent in the imposition of administrative sanctions.
1. The body imposing the sanction may require the infringer to cease the conduct and to replace his or her state of origin with the situation by the altered state within the time limit to which the effect is determined.
2. Also, in the event that, by the number and class of persons affected by the sanctions for separation or suspension, it is necessary to ensure continuity in the administration and direction of the entity, the body imposing the sanction may provide for the appointment, on a provisional basis, of one or more administrators or members who are required to enable the governing body of the administration to adopt agreements, indicating their roles in both cases. The appointment of the interim administrators shall be governed by the provisions of the general rules of this Law and shall exercise their positions until, by the competent body of the entity, which shall be immediately convened, the corresponding appointments and take possession of the appointees or, where appropriate, until the period of separation or suspension.
3. The imposition of the penalties, other than the one consisting of a private one, shall be recorded in the administrative register of insurance and reinsurance entities and in the register of senior insurance and reinsurance entities and, once they are They shall be the subject of communication to the immediate meeting or general assembly which is to be held at a later date.
The sanctions for separation of the charge and suspension, once they are executive, will also be included in the Mercantile Register and, where appropriate, in the Register of Cooperatives.
4. Likewise, the sanctions, except for the one consisting of private admonition, once they are executive, will be communicated to the National Securities Market Commission and the Banco de España.
5. The cancellation of the antecedents by penalties in the administrative register may be carried out on its own initiative or at the request of the persons concerned, provided that the time limit of one year for the penalties for the penalties has elapsed, without having been punished again. minor offences, three years for penalties for serious infringements and five years for penalties for very serious infringements. This period shall be counted from the day following the day on which the penalty has been completed.
Article 207. Concurrency of administrative procedures and criminal proceedings.
The exercise of sanctioning powers will be independent of the possible concurrency of crimes or crimes of a criminal nature. However, where it is considered that the facts may be a criminal offence, they shall be brought to the attention of the judicial authority or of the Prosecutor's Office and the administrative procedure shall be suspended until it is brought to the attention of the Firm judicial pronouncement. The suspension of the sanctioning administrative procedure will also be agreed until a firm judicial decision is made when it becomes aware that criminal proceedings are being carried out for the same acts or for others whose separation of the sanctionable under this Law is rationally impossible.
There is no need to impose administrative sanctions when criminal sanctions have been imposed and there is an identity of subject, fact, and foundation. If there is a place to resume the administrative penalty procedure, the administrative decision to be taken shall respect the assessment of the facts contained in the judgment.
Article 208. Exercise of activities and use of names reserved for insurance and reinsurance entities.
1. Persons or entities, as well as those who in fact or in law exercise administration or management positions in them, who perform insurance or reinsurance operations without the required administrative authorization or who use the The names of the insurance companies or reinsurers, without being so, will be punished with a fine of up to EUR 500 000, in addition to giving publicity to the constitutive conduct of the infringement. If, in order to cease immediately in the course of activities or in the use of the names, they shall continue to carry out or use them, they shall be punished with a fine of up to EUR 1,000,000, which may be repeated on the occasion of subsequent requirements.
2. It shall be competent for the imposition of penalties and for the formulation of the requirements referred to in the previous paragraph by the Director General of Insurance and Pension Funds. The requirements shall be made after the hearing of the person or entity concerned and the fines shall be imposed in accordance with the applicable procedure for the imposition of the penalties on insurance or reinsurance undertakings.
3. The provisions of this Article shall be without prejudice to other responsibilities, including criminal law, which may be enforceable.
Article 209. Prescription of penalties.
1. Penalties for very serious infringements will be prescribed at five years, the penalties for serious infringements, the four and the penalties for minor offences will do so at two years.
2. The period of limitation of the penalties shall begin to be counted from the day following the day on which the decision imposing the sanction or, where applicable, the breach of the sanction imposed, if it has commenced, shall become final. to be satisfied.
3. It shall interrupt the limitation of the initiation, with the knowledge of the person concerned, of the execution of the sanction, and shall resume the period if such execution is paralyzed for more than three months due to the non-imputable cause of the offender.
CHAPTER III
Sanctioning Procedure
Article 210. Regulation of the sanctioning procedure.
1. The sanctioning procedure shall be regulated:
(a) By the special rules laid down in this Law and the regulatory regulations dictated in its development.
(b) In its absence, the provisions of Royal Decree 2119/1993 of 3 December 1993 on the sanctioning procedure applicable to the subjects acting on the financial markets and on Royal Decree 1398/1993 of 4 August 1993, are to be followed. approving the Rules of Procedure for the exercise of sanctioning powers. Title IX of Law 30/1992 of 26 November of the Legal Regime of Public Administrations and of the Common Administrative Procedure shall also be applicable.
2. A simplified procedure shall be regulated in the case of minor offences or, even if serious, where the facts are clearly determined by the fact that they have been proved in other sanctions or entered in Acts of the Insurance inspection, as it has been recognised or declared by the persons concerned, on the basis of administrative records or other justified circumstances.
Article 211. Public complaint.
By public denunciation, they may be brought to the attention of the Administration facts or situations that may constitute violations of the rules of supervision of private insurance.
Received a complaint, it will be forwarded to the competent body to carry out the actions that could be carried out. This body may agree to the file of the complaint when it is deemed to be unfounded or if the facts or persons complained of are not sufficiently specified or identified. Action may be initiated if there are sufficient evidence of accuracy in the facts charged and these are unknown to the Administration. In this case, the complaint shall not form part of the administrative file.
The complainant shall not be considered to be interested in the administrative proceedings which are initiated as a result of the complaint and shall not be informed of the outcome of the complaint. It shall also not be entitled to the interposition of resources or claims in relation to the results of such actions.
Article 212. Administrative powers.
1. The start of the sanctioning procedures shall be the responsibility of the Director-General of Insurance and Pension Funds, who shall appoint an official as an instructor for the Directorate-General for Insurance and Pension Funds.
2. The resolution of sanctioning procedures for serious and minor infringements shall be the responsibility of the Director-General for Insurance and Pension Funds.
In the case of very serious infringements, the resolution will be the responsibility of the Minister of Economy and Competitiveness, on a proposal from the Directorate-General for Insurance and Pension Funds.
3. The implementation of the penalties shall be the responsibility of the Directorate-General for Insurance and Pension Funds.
Article 213. Deadlines.
1. The time limit for resolving and notifying the resolution in the sanctioning procedure shall be one year from the adoption of the initiation agreement. In the case of the simplified procedure, the deadline for resolving and notifying the decision shall be six months.
2. Both the time limit for the adoption of the decision and the time limits for the completion of the formalities provided for in this Chapter may be extended as provided for in Articles 42.6 and 49 of Law No 30/1992 of 26 November 1992 on the Public administrations and the Common Administrative Procedure, the decision taken to the stakeholders should be notified.
Additional disposition first. Regime applicable to European Economic Area States which are not part of the European Union.
The provisions of this Law which refer to the Member States of the European Union, to the insurance and reinsurance entities in their homes or to the activity in them of the insurance and reinsurance entities Spain shall also apply to the States party to the Agreement of the European Economic Area which are not members of the European Union, to the insurance and reinsurance undertakings in which they are domiciled and to the activity of the insurance institutions and Spanish reinsurers in those States.
Additional provision second. Establishment and information on compulsory insurance.
1. Persons may be required to carry out certain activities which present a direct and specific risk to health or to the safety of persons, including financial security, the subscription of insurance or other equivalent guarantee covering the damages they may cause and for which they are liable.
The required security shall be proportionate to the nature and extent of the risk covered.
2. The insurance subscription obligation must be established by means of rules with a range of law which must be provided with a mandatory report from the Directorate-General for Insurance and Pension Funds, or from the competent authority of the Autonomous Communities, with the purpose of which they may make comments on insurance techniques.
The carrying out of activities lacking the relevant compulsory insurance shall be a very serious administrative infringement, except as provided for in its specific rules.
The natural or legal person who is required to subscribe to the insurance will be subject to a penalty, and may be fined 1,000 to 20,000 euros.
The instruction and resolution of the sanctioning procedure shall be the responsibility of the competent public administration for the matter in which the regulation imposes the subscription of the compulsory insurance.
3. The Directorate-General for Insurance and Pension Funds shall communicate to the European Commission, in accordance with the register which is developed regulatively and which will manage the Insurance Compensation Consortium, the existing compulsory insurance Spain, indicating the specific provisions governing compulsory insurance.
4. To this end, the competent bodies of the Autonomous Communities shall communicate to the Directorate-General for Insurance and Pension Funds within three months of the entry into force of this Law, the compulsory insurance in their respective community, and within one month of their approval, the compulsory insurance to be established subsequently, indicating the specifications of the previous paragraph.
Additional provision third. Validity of the administrative authorisation throughout the European Union.
The administrative authorisation granted to Spanish insurance companies and reinsurers under the legislation prior to this Law, when extended to the entire Spanish territory, will be valid throughout the European Union in the terms of the provisions of Article 21, except in the case of Social Security Mutualities which are not authorised to operate by insurance classes and of the insurance institutions covered by the special solvency regime.
Additional provision fourth. Validity of the authorisations for the extension of benefits granted to social security mutual societies.
The social welfare mutual societies that prior to the entry into force of this Law had obtained the administrative authorization for the extension of benefits but fulfilled the conditions for the benefit of the scheme Solvency special may continue to be operated by classes.
Additional provision fifth. Information to the European Commission and the European Insurance and Occupational Pensions Authority on the difficulties of Spanish insurance companies or reinsurers.
The Directorate-General for Insurance and Pension Funds shall inform the European Commission and the European Insurance and Occupational Pensions Authority of the general difficulties encountered by the insurance institutions, or Spanish reinsurers to establish themselves and exercise their activity in a third country.
Additional provision sixth. Special purpose entities.
Special purpose entities domiciled in Spain which fulfil the conditions laid down in the specific rules applicable to them, may apply in Spain for administrative authorization for the exercise of its activities, which shall be awarded by the Minister for Economic Affairs and Competitiveness in accordance with the procedure to be determined in accordance with the rules of the European Union of direct application. The maximum time limit for resolving and reporting the resolution is six months. After this period has not been notified, the application shall be deemed to be dismissed.
Additional provision seventh. Review of amounts expressed in euro.
The amounts expressed in euro in Articles 11 and 78 shall be reviewed every five years, amending their initial amount in euro in the percentage change of the harmonised indices of consumption prices of all Member States of the European Union. the European Union as published by Eurostat, from 31 December 2015 to the date of the revision, rounded up to a multiple of EUR 100 000. If the percentage change since the previous revision is less than five percent, no revision of the amounts shall be made.
The revised amounts will be published by the European Commission in the Official Journal of the European Union and will be applied within 12 months of the publication.
To facilitate their knowledge and application, these updates will also be made public by resolution of the General Directorate of Insurance and Pension Funds.
Additional disposition octave. Obligations of the auditors of the insurance and reinsurance entities.
Account auditors of insurance or reinsurance entities shall be required to report to the Directorate-General for Insurance and Pension Funds within the time limit laid down in the regulatory regulatory framework for accounts, any facts or decisions on an insurance or reinsurance undertaking which they have been aware of in the performance of their audit function carried out on the same or another entity with which the insurance or reinsurance undertaking has a close link resulting from a control relationship, when the said fact or decision can:
a) Constitute a serious violation of the private insurance supervision regulations;
(b) prejudice the continuity of the exercise of the activity of the insurer or reinsurer;
c) imply the abstention of the opinion of the auditor, or an unfavourable opinion or with caveats, or prevent the issuance of the audit report;
d) assume a default on the Solvency Capital Requirement; or
e) assume a non-compliance with respect to the Minimum Capital Requirement.
Additional provision ninth. Insurance actuaries.
Insurance actuaries may, in any case, perform the actuarial function referred to in Article 66.5 and its regulatory development.
In any case, actuaries have obtained an advanced university degree of advanced character and specialized in actuarial and financial sciences.
Additional provision 10th. Insurance experts, Averas Commissioners and Avert Liquidators.
Are insurance experts who rule on the causes of the claim, the assessment of the damages and the other circumstances that influence the determination of the compensation resulting from an insurance contract and make the proposal for a liquid amount of compensation.
It is commissars and fault-liquidators who develop the functions attributed to them by Law 14/2014, of July 24, of Maritime Navigation.
Insurance experts, breakdown commissioners and breakdown liquidators who are involved in the adversarial assessment procedure must have sufficient technical knowledge of the legislation on insurance contracts and, in the case of regulated professions, being in possession of a certificate in the matter on which it is to be ruled, with the scope to be established in a regulated manner.
Additional provision eleventh. Concerts of insurance companies with agencies of the Administration of Social Security.
Without prejudice to the provisions of Articles 77 and 199 of the recast text of the General Law on Social Security, approved by the Royal Legislative Decree 1/1994 of 20 June, and in this Law, the rules of supervision of the Private insurance shall be applicable to financial guarantees, technical bases and premium rates corresponding to the obligations assumed by the insurance institutions under the terms of the concerts which, if necessary and after the management report General of Insurance and Pension Funds or competent body of the Autonomous Communities, establish with bodies of the Social Security Administration, or entities governed by public law which are entrusted, in accordance with their specific legislation, with the management of some of the special schemes for social security.
Insurance policy models established by virtue of the concerts referred to in the preceding paragraph shall be made available to the Directorate-General for Insurance and Pension Funds or competent bodies of the Autonomous Communities.
Additional disposition twelfth. Communications between supervisors in the field of sanctions.
In the event that the Banco de España, the National Securities Market Commission, the National Commission of the Markets and Competition or the Directorate-General for Insurance and Pension Funds initiate a procedure of sanctioning a financial institution subject to the supervision of another of the supervisors, shall communicate this circumstance to the relevant supervisor, which may collect the information it considers relevant for the purposes of its supervisory powers.
Additional disposition thirteenth. Security of caution in favour of public administrations.
The insurance contract concluded with an insurance company authorized to operate in the course of security will be admissible as a form of guarantee to the public authorities in all cases that the current legislation require or allow credit institutions or credit institutions to provide guarantees to such authorities. They are requirements for the insurance contract to be able to serve as a form of guarantee to the public authorities:
(a) It shall be the condition of the policyholder to provide the guarantee to the public administration and that of the insured person.
(b) The non-payment of the premium, whether unique, first or next, shall not entitle the insurer to terminate the contract, nor shall it be extinguished, neither the cover of the suspended insurer nor is it released from its obligation in the case the event of the claim consisting in the contest of the circumstances under which the guarantee is to be made effective.
(c) The insurer shall not be able to oppose the insured with any exceptions that may be appropriate against the policyholder.
d) The policy in which the insurance contract is formalised shall be in accordance with the model approved by the Minister for Economic Affairs and Competitiveness.
Additional disposition fourteenth. Additional reporting obligations of insurance entities operating in the fire and natural elements branch.
1. The insurance institutions operating in class 8 (Fire and natural elements), as provided for in Annex A) (a) to this Act, shall forward to the Insurance Compensation Consortium, with the periodicity and through the procedure to be determined by Resolution of the Directorate-General for Insurance and Pension Funds, the following information:
(a) Identification data of the insurance institution: social name, address and administrative key with which it is registered in the Administrative Registry of Insurance and Reinsurance Entities.
(b) Primes charged in the financial year for fire insurance contracts, distributed by municipal authorities on the basis of the risks assumed by property located in each of them.
For these purposes, the premiums to be considered will be 100 per 100 of those for fire insurance and 50 per 100 for insurance for multi-risk insurance that includes the risk of fire.
In case of co-insurance existence the obligation will fall on each co-insurance entity according to its share of participation.
2. This obligation shall apply both to the Spanish insurance institutions and to those domiciled in another Member State of the European Economic Area who are active in Spain under the right of establishment or under freedom to provide services.
The information will be automatically processed.
3. The Insurance Compensation Consortium shall provide, at the request of the competent bodies for the settlement and collection of fees for the maintenance of the fire prevention and extinguishing service and the special contributions by the establishment or extension of the fire extinguishing service, information broken down by municipal and insurance entities, so that the percentage of the fire insurance premium volume of an entity can be determined insurer represents on the sum of the volume of premiums of all the insurance entities which cover the risk of fires of property located in a municipality.
The above information will be provided directly or through the Spanish Federation of Municipalities and Provinces within the deadlines and through the procedure to be determined by the General Directorate of Insurance and Pension Funds. For these purposes, the Insurance Compensation Consortium and the Spanish Federation of Municipalities and Provinces will be able to subscribe to the necessary collaboration agreements.
Also, the Insurance Compensation Consortium will provide the information to the "Management of Concerts for the Contribution to the Fire-Extinction Services" as a more representative organization of the insurance entities for the subscription of the collaboration agreements for the fulfilment of the tax obligations.
4. The obligation laid down in paragraph 1 shall be considered as a rule for the management and supervision of private insurance and its non-compliance shall constitute an administrative infringement in accordance with the provisions of this Law.
The Insurance Compensation Consortium shall forward to the Directorate-General for Insurance and Pension Funds a list of the insurance institutions which, while authorised to operate in the aforementioned class, have not sent the information referred to in paragraph 1. The Insurance Compensation Consortium shall also communicate to the General Directorate of Insurance and Pension Funds any significant incidents that may occur in the performance of this obligation.
Without prejudice to the administrative infringements arising from the breach of the obligation and in the light of the communications of the Insurance Compensation Consortium, the Directorate-General for Insurance and Pension Funds may to formulate requirements for insurance institutions or to require the carrying out of computer audits, or the implementation of other measures conducive to ensuring the accuracy of the information provided.
5. The format of the data file for the remission of the premium information collected by the insurance institutions shall be established by Resolution of the General Directorate of Insurance and Pension Funds.
Additional provision 15th. Technical bases and calibration of death insurance risks.
The simplified regime applicable to death insurance, at the level of technical bases, provisions and capital of compulsory solvency, shall be determined on the basis of the specific risks of this type of insurance.
Additional provision sixteenth. Progressive introduction of the authorisations established by this Law and other measures to adapt to Solvency II.
1. On the basis of the publication of this Law, insurers and reinsurers may submit to the Directorate-General for Insurance and Pension Funds applications for approval in respect of a full or partial internal model, in accordance with the provisions of this Law. with Article 75.1.b), or an internal group model, in accordance with Articles 146 and 147, being the responsibility of the Minister for Economic Affairs and Competitiveness for the decision on these authorisations.
2. Also, from that date, insurance and reinsurance entities will be able to apply to the General Directorate of Insurance and Pension Funds for the following aspects:
(a) The own funds additional to those referred to in Article 71.
(b) The classification of the own funds items referred to in Article 72.
c) The use of specific parameters referred to in Article 75.1 (a).
d) The creation of special purpose entities in accordance with the additional provision sixth.
(e) Additional own funds of an intermediate insurance holding company in accordance with what is available on a regulated basis.
f) The use of the variable income risk sub-module based on the regulated duration.
g) The use of the matching adjustment of the relevant temporary structure of interest rates without risk in accordance with Article 69.5.
h) The use of the transitional measure on the interest rates without risk referred to in the 18th final provision.
i) The use of the transitional measure on the technical provisions referred to in the final decision.
3. From 1 September 2015, insurance institutions which comply with the provisions of Article 101 may apply to the Directorate-General for Insurance and Pension Funds for the application of the special rules governing the solvency of the insurance system. Chapter VIII of Title III.
4. In relation to the group-level supervision of insurance and reinsurance entities, the Directorate-General for Insurance and Pension Funds is competent to:
a) Determine the level and scope of application of group monitoring in accordance with Articles 133 and 140 to 142.
b) Identify the group monitor in accordance with article 134.
c) Establish a college of supervisors in accordance with Article 135.
(d) Authorise the provisions of paragraph 2 (c), (h) and (i), at the level of the group, in accordance with the provisions of the European Union rules of direct application.
e) Deciding the deduction of any participation in credit institutions, investment services companies and related financial institutions, as developed by regulation.
f) Authorize the choice of the method to calculate the group solvency in accordance with what is available to be regulated.
g) Make an assessment of the equivalence, if any, in accordance with Article 154.
(h) Authorise the application of the centralised risk management regime in accordance with Article 150.
i) Determine methods that ensure adequate supervision of non-equivalent third-country groups and determine the level of equivalence verification, in accordance with the provisions of the regulations.
5. Decisions to terminate the proceedings under this provision shall not have effect until 1 January 2016, provided that they have been issued before this date.
Additional 17th disposition. Enforcement of communication through electronic means.
The Directorate-General for Insurance and Pension Funds may establish by circular the obligation to communicate with it by electronic means, in the cases provided for in Article 27.6 of Law 11/2007, of 22 June, electronic access of citizens to Public Services.
18th additional disposition. Arrangements for the calculation of technical provisions for accounting purposes.
As long as the Royal Decree 1317/2008 of 24 July, which approves the Plan of Accounting of the insurance institutions, for accounting purposes, does not change, the articles to be determined will continue to apply. Regulation (EC) No 2486/1998 of 20 November 1998 laying down the rules for the Management and Supervision of Private Insurance and its implementing rules.
Additional 19th disposition. Regulatory referrals.
The regulatory references made in other provisions to the recast text of the Law on the Management and Supervision of Private Insurance, approved by Royal Decree-Law 6/2004 of 29 October, will be read to the corresponding precepts of this Law.
320th additional disposition. Reallocation of resources.
The obligations arising from compliance with this Law will be addressed through reallocation of the Ministry of Economy and Competitiveness's ordinary resources without requiring additional allocations.
First transient disposition. Arrangements for mutual insurance, social welfare insurance and cooperatives at variable premiums.
The mutual insurance to variable premium and the social forecast mutual societies at variable premium which at the entry into force of this Law were authorized for the exercise of the insurance activity according to the provisions of the recast of the Law on the Management and Supervision of Private Insurance, approved by Royal Decree-Law 6/2004 of 29 October, as well as social welfare and cooperative mutual societies at a variable premium which, in accordance with the provided for in Article 69.2 (b) of the recast of the Law on the Management and Supervision of Insurance Private sector, approved by Royal Decree-Law 6/2004 of 29 October, have been authorized for the exercise of the insurance activity in one of the Autonomous Communities in the field of their competences, they will not be able to continue exercising insurance activity with that legal form.
Within one year of the entry into force of this Law, mutual insurance against variable premiums shall be transformed into mutual insurance at fixed premium, in limited liability companies or in order to settle their dissolution and liquidation. The social welfare mutual societies and the variable premium cooperatives may be further transformed into fixed-premium social welfare mutual societies and fixed-premium cooperatives, respectively.
Second transient disposition. Transitional arrangements for adaptation to minimum amounts of social capital and mutual fund.
1. The insurance companies which, at the entry into force of this Law, continue to be subject to the scheme provided for in the additional sixth provision of the recast text of the Law on the Management and Supervision of Private Insurance, approved by the Royal Decree Legislative 6/2004, of 29 October, may continue to maintain such a system, provided that they are adequately calculated, accounted for and invested in technical provisions, with the required solvency capital and the minimum capital legally enforceable and are not incurred in a procedure of special control measures, are not incurred in the cause of dissolution or revocation of the administrative authorisation.
2. Institutions which have opted for the provisions of the previous paragraph and no longer fulfil any of the requirements laid down therein shall submit to the approval of the Directorate-General for Insurance and Pension Funds a feasibility plan from the the time they cease to comply with those requirements. If the Directorate-General for Insurance and Pension Funds authorises the plan of viability, it shall fix the conditions and the time limit, which may not exceed two years, in which those institutions shall in any event reach the social capital or mutual fund. the minimum required by Articles 33 or 34 of this Law, as appropriate. Failure to meet the expected deadline, in relation to the feasibility plan, will cause dissolution.
3. Insurance undertakings which have opted for the provisions of paragraph 1 may maintain the activity in the classes in which they are authorised, but without extending it to other different classes.
Transitional provision third. Administrative procedures in progress.
The administrative procedures initiated prior to the entry into force of this Law will be governed by the above regulations.
Transitional disposition fourth. Transitional arrangements for the conditions for the exercise of social security mutual societies which have not obtained administrative authorisation for the extension of benefits.
1. From 1 September to 31 December 2015, social welfare insurance companies which do not have authorisation for the extension of benefits may apply to the Directorate-General for Insurance and Pension Funds to benefit from the scheme. Article 102 of this Law provides for special provisions. The maximum period of validity of this transitional regime shall be three years after the entry into force of this Law.
2. In order to benefit from this special scheme, they shall submit to the Directorate-General for Insurance and Pension Funds, together with the application, a plan to adapt to the general regime of Solvency II.
Transient disposition fifth. The scheme of certain insurance operations carried out by mutual social security schemes under the recast of the Law on the Management and Supervision of Private Insurance, approved by Royal Decree-Law 6/2004 of 29 October. Exception of limits to benefits in the form of capital.
1. The social welfare insurance funds authorized prior to the entry into force of this Law which, without authorization for the extension of benefits, came carrying out legal or assistance insurance operations, or family aids for the purpose of subvening to needs motivated by legal acts or acts which temporarily impede the exercise of the profession, may continue to carry out such operations indefinitely.
Risk hedges that are performed in breach of the provisions of the preceding paragraph shall be considered to be prohibited pursuant to Article 5 of this Law.
2. The social welfare insurance funds which, under the legislation prior to this Law, are legally guaranteeing benefits to persons in excess of the limits laid down in Article 44.1 of this Law, may continue to guarantee the benefits which they have established, but may not agree to increase or revaluation of benefits as long as they remain in excess of the limits referred to in that provision, or to incorporate new mutualists into such policies; or performance regulations.
Transitional disposition sixth. Auxiliary advisers registered as of 1 January 2016.
Ancillary advisers who on 1 January 2016 are entered in the Register provided for in Article 52 of Law 26/2006 of 17 July on the mediation of private insurance and reinsurance, shall, on their own initiative, cause a discharge of their own the legal obligation to register.
Transitional disposition seventh. Scheme of social benefits authorised for social welfare insurance schemes under the recast of the Law on the Management and Supervision of Private Insurance, approved by Royal Decree-Law 6/2004 of 29 October.
1. The social security mutual societies which, at the entry into force of this Law, were authorized to grant social benefits in accordance with the provisions of Article 64.2 of the recast of the Law on the Management and Supervision of Insurance Private sector, approved by Royal Decree-Law 6/2004 of 29 October, may continue to provide them, even if the social benefits for which they have been authorised are not linked to the insurance operations referred to in the Article 44.1 of this Law, in compliance with the conditions laid down therein, as well as the following:
(a) Since the entry into force of this Law, the social organs of the social welfare society will not be able to agree to the granting of new social benefits in favour of their mutual societies that do not comply with the provisions of the Article 44.4 of this Act.
(b) Those which have already been agreed upon by the social bodies prior to the entry into force of this Law may continue to be subject to their total extinction, without the possibility of extension.
(c) Social benefits that are agreed in breach of the provisions of points (a) and (b) of this paragraph shall be considered to be prohibited in accordance with Article 5 of this Law.
2. The social security mutual societies which, at the entry into force of this Law, were authorized to grant social benefits under the provisions of Article 64.2 of the recast of the Law on the Management and Supervision of Insurance The law of the Court of Justice of the European Parliament, adopted by Royal Decree-Law 6/2004 of 29 October, and provided that the social benefits for which they have been authorized are in accordance with the provisions of Article 44.1 of this Law, may continue to be provided in the required by this last precept.
Transient disposition octave. Transitional arrangements for the reinsurer activity of the associations of social security mutual societies.
The reinsurance contracts entered into between the social security mutual societies and the associations of social security mutual societies, under the provisions of previous legislation, which are in force at the time of entry into force. This law may be maintained until its expiration, without the possibility of renewal or extension.
transient disposition ninth. Transitional arrangements for the minimum capital requirement.
1. Insurers and reinsurers who, at the entry into force of this Law, comply with the solvency margin established in Article 17 of the Recast Text of the Law on the Management and Supervision of Private Insurance, approved by the Royal Decree Legislative 6/2004, of 29 October, and its implementing legislation, but do not have sufficient basic own funds sufficient to cover the minimum capital required under Article 78 of this Law, will be required to comply with the established in the latter provision before 31 December 2016. Otherwise, the administrative authorisation for the development of the insurance or reinsurance activity shall be revoked.
This shall not prevent the application, where appropriate, of any special control measures that are relevant.
2. Until 31 December 2017, the percentages provided for in the first paragraph of Article 78.3 of this Law for the calculation of the minimum capital requirement shall apply exclusively to the Solvency Capital Requirement, not including any additional required Solvency Capital Requirement.
Transient disposition tenth. Scope of application of the special solvency regime.
From 1 September to 31 December 2015, insurance companies domiciled in Spain that do not carry out activities under the right of establishment or freedom to provide services in other States Member States and non-member countries may benefit from the special solvency regime as laid down in Chapter VIII of Title III, when they request it from the Directorate-General for Insurance and Pension Funds by crediting that they fulfil all the conditions laid down in this Regulation. The rules will be established during the financial year preceding the application.
Transient disposition eleventh. Insurance companies and reinsurers who, as of 1 January 2016, do not subscribe to new contracts.
1. Insurers and reinsurers who, as of 1 January 2016, do not enter into new insurance or reinsurance contracts and exclusively manage their existing portfolio of contracts to terminate their activities, shall not be subject to the Titles I to V of this Law as long as they meet any of the following conditions:
(a) The entity has communicated to the General Directorate of Insurance and Pension Funds that it will cease its business before 1 January 2019.
(b) The entity is subject to reorganisation measures provided for in Title VI of this Law and an administrator has been appointed.
2. The entities referred to in paragraph 1 shall be subject to the provisions of Titles I to V of this Law from the following dates:
(a) For the purposes of paragraph 1.a), from 1 January 2019 or from an earlier date if the Directorate-General for Insurance and Pension Funds is not satisfied with the progress made with a view to the cessation of the entity activity.
(b) For those in point 1.b), from 1 January 2021 or from a previous date if the Directorate-General for Insurance and Pension Funds is not satisfied with the progress made with a view to the cessation of the entity activity.
3. In order to be eligible for this transitional measure, insurance and reinsurance entities shall meet the following requirements:
a) If the entity is part of a group, all entities that are part of it must cease to subscribe to new insurance or reinsurance contracts.
(b) To present to the Directorate-General for Insurance and Pension Funds an annual report setting out the progress made with a view to the cessation of its activity.
c) Notify the General Directorate of Insurance and Pension Funds to apply this transitional measure.
4. This transitional measure shall not prevent any entity from operating in accordance with this Law and its Implementing Regulation.
Transient Disposition twelfth. Temporary validity.
Without prejudice to the provisions of the additional eighteenth provision, until the regulatory provisions for the development of this Law are issued, the Regulation on the management and supervision of insurance shall remain in force. In the case of the private sector, which was approved by Royal Decree 2486/1998 of 20 December, the Social Welfare Mutual Insurance Regulation, approved by Royal Decree 1430/2002 of 27 December, the Accounting Plan of the insurance institutions, approved by the Royal Decree Decree 1317/2008 of 24 July; and other provisions of a general nature development of the recast text of the Law on the Management and Supervision of Private Insurance, in whatever way they do not object to this Law.
transient disposition thirteenth. Transitional arrangements for amendments made to the Insurance Contract Act through the final provision of this Law.
The insurance companies will have a period of six months to adapt the policies that are marketed from the entry into force of this Law to the modifications introduced through the final disposition of the Also in Law 50/1980 of 8 October of Insurance Contract. After the expiry of the same period and for a maximum period of one year, the insurance institutions shall adapt the policies corresponding to the contracts in force for renewal. However, those provisions which are imperative since the entry into force of this Law shall be directly applicable.
Repeal provision.
All provisions of equal or lower rank shall be repealed as set out in this Law, and in particular the following:
(a) Articles 33.a), 75 and the definition of great risks in Article 107.2 of Law 50/1980, of Insurance Contract.
b) Royal Decree 2020/1986 of 22 August, approving the Rules of Procedure of the Liquidating Commission of Insurance Entities.
(c) Royal Decree 2226/1986 of 12 September, for which the Liquidating Commission of the Insurance Entities is entrusted with the functions attributed to the Commission created by the Royal Decree-Law 11/1981 of 20 August.
(d) Royal Decree 731/1987, of 15 May, for which the Regulation of the Insurance Compensation Consortium is approved, as soon as it may be in force.
e) The Order of 25 March 1988, supplementing Royal Decree 2020/1986 of 22 August 1988.
(f) Royal Decree 312/1988 of 30 March, for which the Liquidator Commission of the Insurance Entities is entrusted with the liquidation of the social security institutions.
(g) Royal Decree-Law 6/2004 of 29 October, approving the recast of the Law on the Management and Supervision of Private Insurance, with the exception of Articles 9, 10 and 24 as regards mutual insurance, (ii) the additional provision, sixth; the additional provision, seventh; and the reference contained in the repeal of the Royal Legislative Decree, letter (a) .8, for which it is maintained in The additional provisions of Law No 30/1995 of 8 November 1995 on Ordination and Supervision of Private Insurance, which must remain in force.
Final disposition first. Amendment of Law 50/1980, of 8 October, of Insurance Contract.
Law 50/1980, of 8 October, of Insurance Contract, is amended in the following terms:
One. Article 8 (3) is worded as follows:
" 3. Nature of the risk covered, describing, in a clear and comprehensible manner, the guarantees and coverage granted in the contract, as well as for each of them, the exclusions and limitations that affect them. '
Two. Article 11 is worded as follows:
" 1. The policyholder or policyholder shall, during the term of the contract, communicate to the insurer as soon as possible the alteration of the factors and circumstances stated in the questionnaire provided for in the previous article. (a) aggravating the risk and are of such a nature that, if they were known to the latter at the time of the perfection of the contract, it would not have concluded it or would have concluded it under more burdensome conditions.
2. In the insurance of persons the policyholder or the insured person has no obligation to communicate the variation of the circumstances relating to the health of the insured person, which in no case shall be considered to be an aggravation of the risk."
Three. Article 22 is worded as follows:
" 1. The duration of the contract shall be determined in the policy, which may not set a time limit of more than ten years. However, it may be established that it is extended one or more times for a period not exceeding one year each time.
2. The parties may object to the extension of the contract by means of a written notification to the other party, carried out within a period of at least one month in advance of the end of the current insurance period when the person who opposes the extension is the taker, and two months when he is the insurer.
3. The insurer shall inform the taker, at least two months before the end of the current period, of any changes to the insurance contract.
4. The terms and conditions of the opposition to the extension of each part, or its unavailability, shall be highlighted in the policy.
5. The provisions of the preceding paragraphs shall not apply as soon as it is incompatible with the regulation of life insurance."
Four. A fifth section is added, under Title III entitled "Death and dependency insurance", with the following articles:
" Article cent six bis.
1. For the insurance of death the insurer is obliged, within the limits established in this title and in the contract, to provide the funeral services agreed upon in the policy for the case in which the death of the insured occurs.
The excess of the sum insured over the cost of the service provided by the insurer shall correspond to the taker or, failing that, to the heirs.
2. In the event that the insurer could not have provided the benefit for reasons beyond its will, force majeure or for having made the service through other means other than those offered by the insurer, the insurer be obliged to satisfy the sum insured to the heirs of the deceased insured person, not being responsible for the quality of the services provided.
3. In the event of a death insurance concurrency in a single insurer, the insurer shall be obliged to return, at the request of the policyholder, the premiums paid from the policy that has decided to cancel since the event occurred.
4. In the event of death, if the death insurance concurrency had occurred in more than one insurer, the insurer who would not have been able to comply with its obligation to provide the funeral service in the terms and conditions laid down in the the contract, shall be obliged to pay the sum insured to the heirs of the deceased insured person.
5. Opposition to the extension of the contract may only be exercised by the taker.
Article cent six ter.
1. Under the insurance of dependency, the insurer is obliged, within the limits established in this title and in the contract, for the case of the situation of dependence, to the fulfillment of the agreed benefit in order to attend, in whole or in part, directly or indirectly, the harmful consequences for the insured person arising from such a situation.
2. For the purposes of this article, it is understood by situation of dependency that foreseen in the regulatory norms of the promotion of the personal autonomy and attention to the people in situation of dependency.
3. The provision of insurance may consist of:
a) Abonar the insured capital or income.
b) Refund to the insured for expenses arising from the assistance.
(c) Ensure that assistance is provided to the insured person, and the insurer must make these services available to the insured person and directly assume their cost.
4. Opposition to the extension of the contract may only be exercised by the taker.
Article one-hundred-six-quater.
In health care, dependency and death insurance, the insurance companies will guarantee to the insured the freedom of choice of the service provider, within the limits and conditions established in the contract. In such cases, the insurance undertaking must make available to the insured person, in an easily accessible form, a relationship of service providers guaranteeing an effective freedom of choice, except in those contracts in which it expressly provides a single provider is provided.
In death insurance, the provisions of Article 106 bis.2 shall apply where the heirs engage in the services by means other than those offered by the insurer in accordance with the preceding paragraph."
Final disposition second. Amendment of Law 13/1996, of December 30, of Fiscal, Administrative and Social Order Measures.
With effect from January 1, 2016, the following amendments are introduced in Law 13/1996, of December 30, of Fiscal, Administrative and Social Order Measures:
One. Article 12 (9), point (2) is deleted.
Two. Paragraph 14 of Article 12 shall be deleted.
Final disposition third. Amendment of Law 38/1999, of 5 November, of Ordination of the Building.
The Law 38/1999, of 5 November, of Ordination of the Building, is amended in the following terms:
One. Article 19 (1) is worded as follows:
" 1. The system of guarantees required for the construction works covered by Article 2 of this Law shall be made effective in accordance with the obligation laid down in application of the second provision, having regard to the following guarantees:
(a) Insurance of material damage, insurance or financial guarantee, in order to guarantee, for one year, the compensation of material damages for defects or defects of execution affecting elements of termination or termination of the works, which may be replaced by the retention by the sponsor of a 5 per 100 of the amount of the material execution of the work.
(b) Insurance of material damage, insurance or financial guarantee, in order to guarantee, for three years, the compensation of damage caused by defects or defects of the building or construction elements they cause non-compliance with the requirements of the habitability of Article 3 (1) (c).
(c) Insurance of material damage, insurance or financial guarantee, to ensure, for ten years, the compensation of the material damage caused to the building by defects or defects that have its origin or affect the Foundations, supports, beams, forges, loading walls or other structural elements, and which directly compromise the mechanical strength and stability of the building. "
Two. The first additional provision is amended, which is worded as follows:
" Additional disposition first. Perception of amounts on account of price during construction.
One. Obligations of promoters who receive advance amounts.
1. Natural and legal persons who promote the construction of all kinds of dwellings, including those under the community of owners or cooperative societies, and who intend to obtain from the acquirers the supply of money for their own construction, must meet the following conditions:
(a) To guarantee, from obtaining the building license, the return of the amounts handed over to the legal interests, by means of a security contract signed with insurance companies duly authorised to operate in Spain, or by means of a solidarity guarantee issued by duly authorised credit institutions, in the event that the construction does not start or does not come to fruition within the agreed time limit for the delivery of the dwelling.
b) To receive the advance amounts by the acquirers through credit institutions in which they are to be placed in a special account, with the separation of any other funds belonging to the promoter, including the This is the case with the case of communities of owners or cooperative societies, and of which they can only have access to the care resulting from the construction of the dwellings. For the opening of these accounts or deposits the credit institution shall, under its responsibility, require the guarantee referred to in the above condition.
2. The security shall be extended to the amounts provided by the acquirers, including applicable taxes, plus the legal interest of the money.
Two. Requirements for guarantees.
1. In order for a security insurance contract to serve as a guarantee of anticipated amounts in the construction and sale of homes, it must meet the following requirements:
(a) An individual insurance policy shall be entered into for each acquirer, in which the building is identified for which the quantities or commercial effects are delivered in advance.
(b) The sum insured shall include the total amount of the amounts anticipated in the contract of sale, of accession to the promotion or phase of the cooperative or equivalent legal instrument, including applicable taxes, increased in the legal interest of the money from the effective delivery of the advance to the expected date of the delivery of the housing by the developer.
c) It will be the promoter of the insurance, who will be responsible for the payment of the premium for the entire insurance period until the elevation to public deed of the contract of sale, of adherence to the promotion or phase of the cooperative or equivalent legal instrument.
d) The condition of insured to the acquirer or acquirers included in the contract of sale.
e) The insurer may not oppose the insured with any exceptions that may be made against the policyholder. The lack of payment of the premium by the sponsor shall in no case be an exception.
(f) The duration of the contract may not be less than that of the commitment for the construction and delivery of the dwellings. In the event of an extension for the delivery of the dwellings, the sponsor may extend the insurance contract by payment of the corresponding premium, and shall inform the insured person of such extension.
g) The insurance institution may verify during the lifetime of the insurance the documents and data of the promotor-taker that are related to the obligations incurred in relation to the insured.
(h) If the construction does not start or does not come to a good end within the agreed period, the insured person, provided that he has required the promoter in a manner to return the amounts contributed to the account, including the applicable taxes and their interest and within the period of 30 days has not proceeded to their refund, may claim to the insurer the payment of the corresponding compensation. The insured person may also claim directly from the insurer where the claim to the sponsor is not possible.
The insurer must indemnify the insured within thirty days from the time the claim is made.
(i) In no case shall the amounts which are not credited to the insured, even if they have been included in the insured sum of the insurance contract, be indemnified for having agreed to their deferred delivery in the assignment contract.
(j) The insurer may claim to the holder-taker the amounts paid to the insured persons, to which effect they shall be subrogated to the rights that correspond to them.
(k) Where the insurance undertaking has satisfied the insured person as a result of the claim covered by the insurance contract, the sponsor shall not be able to dispose of the property without having previously resented to the insurer for the amount of compensation.
l) In all that is not specifically provided, the Law 50/1980, of 8 October, of Insurance Contract will apply to you.
2. In order for an endorsement to serve as a guarantee of anticipated amounts in the construction and sale of homes, it must meet the following requirements:
(a) To be issued and maintained in force by the credit institution, for the total amount of the amounts anticipated in the contract of sale, of accession to the promotion or phase of the cooperative or legal instrument equivalent, including applicable taxes, increased in the legal interest of the money from the effective delivery of the advance to the expected date of the delivery of the home by the sponsor.
(b) In the event that the construction is not initiated or does not come to a successful conclusion within the agreed period, the beneficiary shall, provided that it has required the sponsor in a manner to return the quantities delivered to it, (a) including the applicable taxes, and their interest and within the period of 30 days has not been returned, may require the guarantor to pay the said amounts. The beneficiary may also claim directly from the guarantor where the claim prior to the sponsor is not possible.
(c) After a period of two years, to be counted from the infringement by the sponsor of the guaranteed obligation without it being required by the acquirer for the termination of the contract and the return of the amounts advance, the expiration of the endorsement will occur.
Three. Contractual information.
In the contracts for the purchase of homes in which the delivery to the promoter is agreed, including the case of communities of owners or cooperative society, advance amounts must be expressly stated:
(a) The promoter is obliged to return to the acquirer of the amounts collected on account, including applicable taxes, plus legal interests in case the construction does not start or end within the deadlines agreed to be determined in the contract, or not to obtain the habitability card, first-occupancy license or the equivalent document that they provide for the occupation of the dwelling.
(b) Reference to the bank guarantee or guarantee contract referred to in paragraph 1 (a) (a) of this provision, indicating the name of the insurance undertaking or the guarantor entity.
(c) Designation of the credit institution and the account through which the acquirer is to be delivered by the acquirer of the amounts that he would have committed to anticipate as a result of the contract concluded.
At the time of the award of the contract of sale, the promoter, including the case of communities of owners or cooperative society, will make delivery to the acquirer of the document that accredits the guarantee, referred to individualized to the quantities to be anticipated for the price.
Four. Execution of the warranty.
If the construction has not been started or the dwelling has not been delivered, the acquirer may choose to terminate the contract with the return of the quantities delivered to account, including taxes applicable, increased in the legal interest, or grant to the sponsor extension, which shall be entered in an additional clause of the contract awarded, specifying the new period with the date of completion of the construction and delivery of the housing.
Five. Cancellation of the warranty.
Issued the habitability card, the first occupation license or the equivalent document that entitles to the occupation of the dwelling by the competent administrative organ and accredited by the promoter the delivery of the housing to the acquirer, the guarantees granted by the insurance or guarantor entity shall be cancelled. If the above conditions are met, the same effect will occur if the acquirer refuses to receive the housing.
Six. Advertising for the promotion of housing.
In the advertising of the promotion of dwellings with the perception of quantities to account prior to the initiation of the works or during the period of construction, it will be mandatory to state that the promoter will adjust its acting and contracting to comply with the requirements set out in this Law, making explicit mention of the insurance undertaking or guarantor, as well as of the credit institution in which the special account is opened; the anticipated amounts are to be entered.
Seven. Infringements and penalties.
Failure to comply with the obligations imposed on this provision constitutes a breach in the consumer's field, applying the provisions of the general sanctioning regime on consumer and user protection provided for in Article 1 (1) of the Treaty. the general legislation and the corresponding regional regulations, without prejudice to the powers conferred on the Directorate-General for Insurance and Pension Funds under the rules in force.
Failure to comply with the obligation to lodge a guarantee referred to in paragraph 1 of this provision shall give rise to a penalty of up to 25 per 100 of the quantities for which the refund is to be secured or corresponds to the provisions of the rules of the Autonomous Communities.
In addition to the above, the promoter, including the alleged owners ' communities or cooperative society, shall be imposed on the violations and penalties that may be in accordance with the specific legislation on the order of the building.
Eight. Regulatory development.
Reglamentarily the public housing promotion bodies that are exempted from the requirements set out in this additional provision may be determined.
The Government may issue additional provisions for the development of the provisions of this additional provision. "
Three. A third transitional provision is added, with the following wording:
" Transitional provision third. Adaptation to the scheme introduced by the additional first provision 'Perception of amounts on account of the price during construction', in its wording given by Law 20/2015 of 14 July, of management, supervision and solvency of entities insurers and reinsurers, which amends Law 38/1999, of 5 November, of Ordination of the Building.
Insurance institutions shall, before 1 July 2016 and for the amounts to be delivered from that date, adapt the policies in force on 1 January 2016 to the scheme introduced by the final provision. tercera.2 of Law 20/2015 of 14 July of 14 July for the management, supervision and solvency of insurance and reinsurance undertakings, amending the first provision for the first time " Receipt of amounts on account of the price during the "construction of Law 38/1999 of 5 November of the Management of the Building."
Four. A third repeal provision is added with the following wording:
" Third Repeal Disposition.
All provisions of equal or lower rank shall be repealed as set out in this Law, and in particular the following:
(a) Law 57/1968 of 27 July on the receipt of advance amounts in the construction and sale of dwellings.
(b) Decree 3114/1968 of 12 December on the application of Law 57/1968 of 27 July 1968 to the Communities and the Housing Cooperatives.
(c) The Order of 29 November 1968 on the insurance of advance payments for housing, in so far as it may be in force. "
Final disposition fourth. Amendment of the recast of the Law on the Regulation of Pension Plans and Funds, approved by the Royal Legislative Decree 1/2002 of 29 November.
The recast text of the Law on the Regulation of Pension Plans and Funds, approved by the Royal Legislative Decree 1/2002 of 29 November, is amended in the following terms:
One. Article 2 is worded as follows:
" Article 2. Nature of pension funds.
Pension funds are assets created for the sole purpose of fulfilling pension plans, the management, custody and control of which shall be carried out in accordance with this Law.
Open pension funds may also be set up in order to channel investments from other pension funds as provided for in Article 11b. "
Two. Article 10 (2) is worded as follows:
" 2. The conditions under which the relationship between the plan and the pension fund, and in particular the transfer of the plan's position account from one pension fund to another, as well as the pension fund, will be fixed. settlement of the plan. The conditions and conditions under which the control committee of a pension scheme attached to a fund may channel resources from its position account to other pension funds or be assigned to a number of persons may be established. managed, where appropriate, by different management entities. "
Three. Article 11 (9) and (10) shall be worded as
:" 9. In relation to developed investment processes, pension funds may be covered within two types:
(a) Closed fund, which exclusively implements the investments in the plan or pension plans integrated into it.
(b) Open fund, characterised by being able to channel investments from other pension funds and pension schemes attached to other funds in accordance with the provisions of Article 11b.
10. Pension funds which make up defined benefit pension schemes may require the establishment of a minimum initial estate, according to levels laid down in the rules, in the light of the guarantees required for their correct financial development. "
Four. A new Article 11b is introduced with the following wording:
" Article 11b. Pension funds open.
1. Open pension funds may be set up in order to channel investments from other pension funds and pension schemes attached to other pension funds in accordance with the provisions of this Article.
Open pension funds will necessarily fall into one of the following categories:
(a) Open pension funds for employment, aimed at channelling investments in pension funds for employment. Under the terms that are established in regulation, the pension schemes of the employment system may also channel resources from their position account to open pension funds for employment.
b) Personal open pension funds, intended to channel investments from personal pension funds. In terms that are regulated, the pension plans of the individual and associated system may also channel resources from their position account to personal open pension funds.
Each of the investor pension funds and the investor pension schemes will hold an account of participation in the open fund.
The direct integration of pension plans into open pension funds will be potential, and should be in any case the same category of employment or staff.
2. In the case of an open employment pension fund, a Commission for the control of the fund consisting of representatives of the funds and pension schemes and, where appropriate, of the directly integrated plans, which shall be appointed by the institutions, shall be set up. Commissions for the control of such funds and plans among its members. As long as there is a single investor fund or a single investor or integrated pension scheme, the supervisory board of the latter shall act as the control committee for the open pension fund.
In the case of personal open pension funds, the establishment of an open fund control commission shall not be required, corresponding to the managing body, where appropriate, the functions assigned to it by the rules.
The Commission for the control of the open pension fund shall be governed by the provisions of Article 14 and the rules which govern it, on the understanding, where appropriate, of investors ' pension funds or plans of Investor pensions references to pension schemes.
The operating expenses of the Commission for the control of the open pension fund shall be borne by the fund, but its total or partial assumption may be agreed by the managing or depository or the promoter of the pension plans.
3. For the establishment of an open pension fund, the agreement of the managing and depository institutions shall be specified.
Open pension funds shall be made, subject to administrative authorisation, in accordance with the procedure laid down in Articles 11 and 11a with the specifications which, if appropriate, are to be established in a regulated manner. Its name must be followed, in any case, by the term "open pension fund".
The public writing of the institution of the open pension fund shall include its operating rules specifying its scope of action by expressing its object as an open fund, its category of employment or personal and minimum content as provided for in Article 11.2.c), in so far as they are applicable, where the reference to position accounts is taken into account in their case.
A closed pension fund for employment or staff may become an open pension fund, in the terms laid down in regulation.
4. Open pension funds shall be governed by the provisions of this Law and their implementing rules relating to pension funds which are not specific to the employment or personal funds intended solely for the integration of pensions, with the understanding, where appropriate, of investor pension funds or investor pension schemes, the references to pension schemes.
Regulations and specific conditions for the activity and functioning of open pension funds may be regulated and, in particular, a minimum equity may be required.
The provisions of Chapter IX shall be applicable to the open pension funds, with the understanding, where appropriate, of investor pension funds and investor pension schemes, of the references to pension schemes. "
Five. Article 20 (1) (g) shall be read as follows:
" To the members and to the natural persons of the Management Board, as well as to the Directors-General and assimilated to the latter of the pension fund management entities, it shall be applicable to the members of the Board of Directors. provided for in Articles 36 and 38 of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance undertakings, without prejudice to their regulatory concreteness. '
Six. Article 20 (6) is worded as follows:
" 6. It will be the cause of dissolution of the pension fund management entities, in addition to those listed in article 363 of the recast of the Capital Companies Act, approved by Royal Legislative Decree 1/2010, of July 2, the revocation of the administrative authorisation, unless the institution itself gives up such authorisation, giving rise to such a waiver solely motivated by the modification of its social object in order to carry out an activity other than the exclusive social object of administration of pension funds referred to in point (c) of paragraph 1 above.
The dissolution agreement, in addition to the advertising that prevents Article 369 of the Capital Companies Act, will be entered in the Administrative Register and published in the "Official State Gazette" and the extinguished entity will be cancelled in the Administrative Register, in addition to complying with the provisions of Article 396 of the Capital Companies Act.
Notwithstanding the foregoing, the dissolution, liquidation and extinction of the insurance entities authorised as pension fund managers shall be governed by the specific provisions of Law 20/2015 of 14 July of ordination, supervision and solvency of insurance and reinsurance entities. "
Seven. Article 24 (1) and (2) shall be worded as
:" 1. The Ministry of Economy and Competitiveness is responsible for the management and administrative supervision of compliance with the rules of this Law, which may be obtained from the managing and depository entities of the entities or persons in which they have delegated or outsourced functions, of the traders of individual pension schemes, of the promoters of the pension plans, of the control commissions, of the actuaries, as well as of the representatives of the pension funds of other Member States, all the information required to check the correct compliance with the laws and regulations.
The Directorate-General for Insurance and Pension Funds will, as a Spanish supervisory authority in the field of pension funds, form part of the European Insurance and Occupational Pensions Authority (EIOPA), the provisions of Regulation No 1094/2010 of 24 November 2010 of the European Parliament and of the Council establishing a European Supervisory Authority, with the application in the field of pension funds, as laid down in Article 17 of the Law 20/2015 of 14 July 2015 for the management, supervision and solvency of insurance institutions and reinsurers.
2. The provisions on the inspection of insurance institutions in Chapter IV of Title IV of Law 20/2015 of 14 July 2015 on management, supervision and supervision shall apply to the inspection of managing entities and pension schemes and pension funds. the solvency of insurance and reinsurance entities.
In the absence of any express mention in the specifications of the pension plans or in the rules of operation of the pension funds, all the actions arising from the Inspection of the plans and funds of the pensions, other than those relating to natural persons, shall be construed as notified when the communication is made to the relevant managing body.
Also, the General Directorate of Insurance and Pension Funds may order the inspection of the depository institutions of pension funds to check the correct compliance with the regulations regarding the plans and funds of the pensions. In this case, the order of inspection shall be reported to the administrative body or body to which, where appropriate, the control and supervision of the entity corresponds, being able to request from that entity its action or assistance in the cases that are necessary, the provisions on the inspection of insurance companies in Chapter IV of Title IV of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance undertakings. '
Eight. Article 24 (4) and (5) shall be worded as
:" 4. The data, documents and information held by the Ministry of Economy and Competitiveness in the exercise of its functions for the management and supervision of pension funds, except those contained in the administrative records of public character, they will have a reserved character.
All persons who exercise or have exercised an activity in the management and supervision of pension funds, as well as those to whom the Ministry of Economy and Competitiveness has entrusted functions with respect to they are subject to the duty of professional secrecy on the same terms and with the same responsibilities and exceptions as laid down in Chapter V of Title IV of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance companies and reinsurers.
5. The Directorate-General for Insurance and Pension Funds may order the inspection of the functions transferred to a third party, as well as the placing on the market of pension schemes, to check whether they are carried out in accordance with the rules of pension schemes and funds. In this case, the order of inspection shall be reported to the administrative body or body to which, where appropriate, the control and supervision of the service provider is appropriate, and may request the service provider to take action or assistance in the cases in which it is necessary, the provisions on the inspection of insurance companies in Chapter IV of Title IV of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance entities are applicable. '
Nine. A new point (d) is added to Article 31 (2) with the following wording:
" (d) When a year elapses without the open pension fund channelling any investment from other pension funds or pension schemes or integrating any pension scheme, or where the effective lack of pension funds is assessed, activity on the terms that are regulated as determined. "
Ten. Article 34 (2) and (3) shall be worded as
:" 2. Irrespective of the administrative sanction which it is appropriate to impose, the special control measures, in accordance with the characteristics of the situation, may consist of:
1. In respect of the managing entities, any of the measures that are provided for the insurance entities in Articles 160 and 161 of the Law 20/2015 of 14 July 2015 on the management, supervision and solvency of the managing entities may be adopted. insurance and reinsurance undertakings, in so far as they are applicable to them, with the peculiarity that the reference in those provisions is made to the suspension of the hiring of new insurance by the insurance undertaking or the acceptance of Reinsurance and the prohibition of the extension of the insurance contracts already concluded must be understood as the suspension of the management and administration of new pension funds by the managing body.
In addition, the measure of suspending the managing body in its management functions of the fund or pension funds may be taken, in which case the fund control committee shall designate an entity to replace the institution. prior to the authorisation of the Directorate-General for Insurance and Pension Funds, who may be appointed if the latter does not do so.
2. The measures covered by Articles 160 and 161 of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance institutions and insurance institutions may also be adopted in respect of pension plans and funds. reinsurers, in so far as they are applicable, with the following peculiarities: that the financing or recovery plan must be approved by the pension plan or pension fund control commission, which the suspension of the (a) the contracting of new insurance or reinsurance acceptance and the prohibition of the extension of the contract the insurance already concluded is replaced by the measure of suspension of the integration of new pension schemes or new unit-holders into the pension schemes, and that the references in those provisions are made to the insurance undertaking or to its administrative bodies should be understood as being made, respectively, to the pension plan or fund or, as the case may be, to the managing or depository entities or to the fund or pension scheme control committees.
3. In addition, as a special control measure complementary to those referred to in the previous numbers, the Directorate-General for Insurance and Pension Funds may agree on the intervention of the managing body and the fund or funds. of pensions to ensure their correct compliance in accordance with Article 163 of Law 20/2015 of 14 July of the management, supervision and solvency of insurance and reinsurance entities.
3. In all other matters, it shall apply in the field of special control measures to be adopted on management entities and pension plans and funds as provided for in Articles 164 and 165 of Law 20/2015 of 14 July 2001 on management, supervision and the solvency of insurance and reinsurance undertakings on administrative procedures for the adoption of special control measures and temporary replacement of the administrative bodies, but on the understanding that they are made to the supervisory board or, in its the case, to the managing body the references to the administrative bodies of the insurance institution, when the measures to be taken are about pension plans and funds.
The judge who declares in contest a management entity or depository of pension funds shall immediately proceed to the notification of the decision to the General Directorate of Insurance and Pension Funds. The latter may ask the judges of the competitions for information on the status and development of the procedures involving the management and depository of pension funds. '
Once. Article 36 is worded as follows:
" Article 36. Administrative penalties.
1. The entities and persons referred to in Article 35 (1) of this Law, except those referred to in paragraphs 2, 3 and 4 below, shall be subject to the administrative penalties provided for in Articles 198, 199 and 200 of Law 20/2015, of 14 July, of the management, supervision and solvency of insurance and reinsurance undertakings, while the suspension of the effective administrative authorisation shall relate to the exercise of activity as a manager or a depositary of any pension fund or to be eligible to be a promoter of pension plans of the individual system. In the fine for a very serious infringement provided for in point (c) of Article 198 of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance undertakings, the amount of business shall be understood as pension schemes for the last financial year previously closed to the commission for the infringement. For this purpose, the following contributions shall be taken into account: in the case of the managing and depository institutions, the total of contributions to the pension plans under their management and custody, respectively; in the case of promoters of plans other than the managing and depository entities, the totality of the contributions to the pension schemes of which they are promoters; in the case of persons or entities in which functions have been delegated, the whole of the contributions to the pension plans the pension funds to which that delegation is affected; and in the case of liquidators other than managing or depository entities, the whole of the contributions to pension schemes attached to the pension funds to which the settlement is affected.
2. The acting experts and the entities in which they operate, for their actions in relation to pension plans and funds, shall be punished by the committee for very serious infringements with one of the following penalties: the prohibition to issue its opinions in the field for a period of not more than 10 years and not less than five years or a fine of EUR 150,253,02 per amount up to EUR 300,506,05. For the commission of serious infringements, the actuaries will be imposed one of the following sanctions: prohibition to issue opinions in the matter in a period of up to five years or fine for amount from 30,050.61 euros to 150,253,02 euros. The commission of minor infractions will impose on the actuary the penalty of fine, which will be able to reach up to the amount of 30,050.61 euros. If the actuary acts on behalf of a company, the same penalties shall also apply to that company.
3. It shall apply to the administrative and management positions of the entities referred to in Article 35 (1) of this Law, except for those who carry out their business in the marketing entities, the liability regime for the the management or management positions of insurance companies regulate Articles 191, 202, 203 and 204 of Law 20/2015 of 14 July of the management, supervision and solvency of insurance and reinsurance entities, while disablement for the purpose of exercising administrative or managerial positions referred to in Article 202 (a), it shall be, as the case may be, in any managing or depository entity, in any entity in which the actuaries develop their activity, or, finally, in any commission or sub-committee for the control of the plans and of the pension funds.
The regime of Articles 191, 202, 203 and 204 of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance entities on administrative and administrative charges shall also apply. the management of the pension scheme promoting entities, and those of the entities in which the management of the management or depository has been delegated.
In these cases the disablement shall be referred, as the case may be, to administrative and management positions in the aforementioned entities for the exercise of functions and powers relating to the plans and funds of the pensions.
4. The administrative penalties provided for in Articles 56.1 (b), (c) and (d); 56.2 and 56.3 of Law 26/2006, of private insurance and reinsurance mediation, to persons or to the trading entities shall apply, but the suspension shall apply. (a) temporary shall be understood as referring to the exercise of the marketing activity of pension schemes.
The administrative penalties provided for in Articles 57.3 (b) and (c) and 57.4 of Law 26/2006, of private insurance and reinsurance mediation, shall also apply to the administrative and management positions of the marketing entities. In these cases, the temporary suspension shall be referred to, as the case may be, for administrative and management positions in the said entities for the exercise of functions and powers relating to pension plans and funds.
The penalties referred to in the preceding paragraphs shall be imposed in the terms set out in Articles 56 and 57.
5. Failure to comply with the contribution limit provided for in Article 5 (3), unless the excess of that limit is withdrawn before the 30th of June of the following year, shall be sanctioned with a fine of 50% of the such excess, without prejudice to the immediate withdrawal of the said excess from the plan or corresponding pension schemes. Such a sanction shall be imposed, in any case, to the person who makes the contribution, whether or not he participates, but the participant shall be exonerated when it has been carried out without his or her knowledge.
6. For the purposes of the exercise of the sanctioning authority referred to in this Article and the foregoing, the rules contained in Articles 197, 201 and 205 to 213, inclusive, of Law 20/2015 of 14 July, of ordination, shall apply. supervision and solvency of insurance and reinsurance entities.
When the infringer is a credit institution or entity or person to whom it has been transferred or that it exercises as a marketer of pension plans, or charges of management and management of the foregoing, for the imposition of the The report of the administrative body or body to which the control and supervision of such entities or persons is responsible shall be mandatory.
7. Persons or entities, as well as those who in fact or in law exercise administration or management positions in them, who develop the activity of the pension funds or the pension fund management entities without having to (a) compulsory administrative authorisation or use of the names "pension scheme", "pension fund", "pension fund managing institution" or "pension fund institution", without being so, shall be sanctioned in accordance with the Article 208 of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance entities. "
Twelve. Article 46 is worded as follows:
" Article 46. Representatives in Spain of the employment pension funds of other Member States.
Pension funds domiciled in other Member States intending to develop in Spain employment pension schemes subject to Spanish legislation will be required to appoint a representative, a natural person with habitual residence in Spain or legal person established in Spain, with the following powers:
(a) To tender the complaints submitted by the control commissions, participants and beneficiaries of the plans subject to the Spanish legislation attached to the fund. To this end, it must have sufficient powers to represent the pension fund, even in order to order the payment of benefits.
b) Represent the pension fund before the Spanish judicial and administrative authorities in all matters concerning the development of the plans and the activities of the fund in Spain.
The Minister of Economy and Competitiveness may issue detailed rules on the content, form and time limits of the obligations laid down in this Article. "
Thirteen. The additional second provision is worded as follows:
" Additional Disposition Second. Deadline for the resolution of requests for administrative authorisation and registration.
The requests for administrative and registration authorizations governed by this Law shall be resolved within three months of the date of filing of the application. The administrative silence shall be positive. "
Fourteen. The eighth additional provision is worded as follows:
" Additional disposal octave. Early provision of economic rights in supplementary social provision systems analogous to pension schemes.
The economic rights of policyholders or mutualists derived from premiums, contributions and contributions paid to insured pension schemes, business social security plans and insurance contracts concluded with Social welfare insurance schemes referred to in Article 51 of Law 35/2006 of 28 November of the Tax on the Income of the Physical Persons and the partial amendment of the laws of the Tax on Societies, on the Income of residents and on the Heritage, may be made effective early in the cases exceptional liquidity and anticipated provision for pension schemes in Article 8 (8) of this Law, in the terms and conditions laid down in that provision and in the rules implementing it regulentarily.
In the case of the business social security plans and the agreements with social security mutual societies for the workers of the companies, the advance provision of rights derived from premiums, contributions or contributions made with at least ten years ' age will be possible if the commitment is permitted and provided for in the relevant insurance policy or benefit regulation. In the event that the insurance institution has investments affected by the right of advance provision, it shall be valued at the market value of the assets allocated.
In the Mutual Social Welfare Mutual Social Security Mutual Insurance (Social Security), which, by virtue of the additional provision of Law No 30/1995 of 8 November 1995 on the Management and Supervision of Private Insurance, acts as a system (a) the economic rights of the products or insurance used to comply with that alternative function shall not be effective as a result of the High in the Special System of Social Security of Workers for the Account of Own or Self-Employed; the liquidity assumptions provided for in the first and second subparagraphs of Article 8 (8) of the Law. "
Fifteen. A new eighth transitional arrangement is added with the following wording:
" Transient disposition octave. Existing open pension funds prior to 1 January 2016.
The pension funds for employment or personal pensions entered in the Administrative Register of Pension Funds which, at 31 December 2015, came operating as open pension funds will be able to continue such activity. how to continue to apply its previous system of composition of the fund control committee as long as they maintain directly integrated pension plans. "
Final disposition fifth. Amendment of Law 22/2003, dated July 9, Bankruptcy.
Law 22/2003, dated July 9, is amended as follows:
One. A new paragraph is added to Article 233.
" 5. In the case of insurance entities, the designated mediator shall be the Insurance Compensation Consortium."
Two. In the second provision 'Special scheme applicable to credit institutions, investment firms and insurance undertakings', the wording of paragraph 2 (h) is amended as follows:
" (h) Titles VI and VII of Law 20/2015 of 14 July 2015 on the management, supervision and solvency of insurance and reinsurance entities; and the recast of the Legal Statute of the Insurance Compensation Consortium, approved by the Royal Legislative Decree 7/2004 of 29 October."
Final disposition sixth. Amendment of the recast text of the Local Law Regulatory Law, approved by the Royal Legislative Decree of 5 March.
A new 17th additional provision is added to the recast text of the Local Law Regulatory Law, approved by the Royal Legislative Decree of March 5, in the following terms:
" Additional 17th Disposition. Obtaining information for the purposes of the settlement and collection of fees for the maintenance of the fire prevention and extinguishing service and for special contributions for the establishment or extension of the extinction services fire.
Local entities shall collect from the insurance institutions the information necessary for the settlement and collection of the fees for the provision of the fire prevention and extinguishing service and the contributions (a) special measures for the establishment or extension of fire-extinguishing services, in accordance with the procedure laid down in the additional provision of the 14th of the 20/2015 Act of 14 July 2015 for the management, supervision and solvency of fire-extinguishing services insurance and reinsurance entities. "
Final disposition seventh. Amendment of the recast text of the Non-Resident Income Tax Act, approved by the Royal Legislative Decree 5/2004, of March 5.
With effect from 1 January 2016, Article 31 (1) (e) of the recast text of the Non-Resident Income Tax Act, as approved by Royal Decree-Law 5/2004 of 5 March 2004, is amended to it is worded as follows:
"(e) Insurance companies domiciled in another Member State of the European Economic Area operating in Spain under the freedom to provide services, in relation to operations carried out in Spain."
Final disposition octave. Amendment of the recast text of the Legal Statute of the Insurance Compensation Consortium, approved by the Royal Legislative Decree 7/2004 of 29 October.
The recast text of the Legal Statute of the Insurance Compensation Consortium, approved by the Royal Legislative Decree 7/2004 of 29 October, is amended in the following terms:
One. Article 6 (1) is worded as follows:
" 1. The Consortium, in the case of extraordinary risks, shall be entitled to indemnify, in the form laid down in this Legal Statute, in compensation arrangements, losses arising from extraordinary events occurring in Spain and affecting risks in the location.
Likewise, personal damages arising from extraordinary events occurring abroad will be indemnified by the Consortium when the policyholder has his habitual residence in Spain.
For these purposes, direct damage to persons and property shall be lost, as well as, in terms of and with the limits to be determined, pecuniary losses as a result of those. They shall also be read in terms of the following:
(a) The following phenomena of nature: earthquakes and tsunamis, extraordinary floods, volcanic eruptions, atypical cyclonic storm and falls of steel and steel bodies.
(b) The violently occasioned as a result of terrorism, rebellion, sedition, mutiny and popular tumult.
c) Facts or actions of the Armed Forces or the Peacetime Security Forces and Corps. "
Two. Article 7 (b) is worded as follows:
" (b) As regards the insurance of things, the classes of land vehicles, railway vehicles, fire and natural elements, other damage to property, and miscellaneous pecuniary losses, as well as the combined modalities of these, or when they are contracted in a complementary manner. Also in the field of civil liability in motor vehicles.
However, a single surcharge will be required in the civil liability class of motor vehicle vehicles, if in addition to the insurance cover for the compulsory subscription of the car there would be on a voluntary basis, a liability insurance or damage insurance in relation to the same motor vehicle. '
Three. Article 8 (5) is worded as follows:
" 5. In insurance against damages and civil liability in motor vehicles, the Ministry of Economy and Competitiveness, on a proposal from the Consortium, may fix a franchise in charge of the insured for the assumptions in which the Consortium has obligation to indemnify. "
Four. Article 14 is worded as follows:
" Article 14. In relation to the liquidation of insurance entities.
1. The Consortium will assume the status of liquidator of the Spanish insurance companies mentioned in Article 27.1 of Law 20/2015 of July 14 of the management, supervision and solvency of insurers and reinsurers, subject to the competition for the execution of the State or the Autonomous Communities, when the Minister for Economic and Competitiveness or the competent authority of the Autonomous Community is entrusted with its liquidation.
You may be given the settlement in the following scenarios:
(a) Simultaneously to the dissolution of the insurer if it has been administered administratively.
(b) If an entity is dissolved, the entity has not made the appointment of the liquidators within 15 days of the dissolution, or where the appointment within that period was not fulfilled by the legal and legal requirements; statutory.
(c) Where the liquidators fail to comply with the rules that for the protection of policyholders are laid down in Law 20/2015 of 14 July of the management, supervision and solvency of insurance and reinsurance entities, those governing the liquidation or the difficulty. Also where, due to the delay of the liquidation or in the case of circumstances that advise, the Administration understands that the settlement should be entrusted to the Consortium. In the event that the settlement is brought in, the Consortium shall be agreed upon prior report of the financial controller.
d) By accepting the request of the insurer itself, if justified cause is appreciated.
2. They correspond to the Consortium, in the terms provided for in the insolvency law, the condition and functions of the insolvency administration in the tender procedures to which any insurance institution is subject, and without the acceptance of the charge is necessary. Their action in such proceedings shall not be remunerated.
The Consortium must inform the court of the identity of the natural person to represent him in the exercise of his office, to which the rules contained in Article 28 of Law 22/2003, of 9 of the July, Insolvency, with the exceptions set out in it.
In addition, it shall exercise the functions of a insolvency mediator at the request of an insurance institution in accordance with the provisions of Article 5a of Law 22/2003, of July 9, Insolvency.
3. Where appropriate, it leads to the separate liquidation of the goods referred to in Article 175 of Law 20/2015 of 14 July of the management, supervision and solvency of insurance and reinsurance entities.
4. In the terms that are regulated by the General Directorate of Insurance and Pension Funds, the Consortium may carry out information activities to the creditors for insurance contracts in relation to the the winding-up proceedings of an insurance undertaking domiciled in another Member State of the European Union in respect of the insurance contracts which that entity would have concluded in Spain under the right of establishment or in the freedom to provide services.
The Consortium may enter into agreements with the administrative or judicial bodies to which, under the rules of the home Member State, the liquidation of the institution would have been entrusted, in order to facilitate to creditors by contract of insurance resident in Spain the filing and processing of their claims before the settlement bodies.
The performance of the activities referred to in this paragraph shall not imply the assumption by the Consortium of the liquidation functions of insurance entities of other Member States of the European Union or its branches in Spain, it shall not, therefore, result in the making of payments on the basis of a contract of insurance or advances on account of such payments, not resulting in application, in any event, in Articles 179 to 185 of Law 20/2015 of 14 July of ordination, supervision and solvency of insurance and reinsurance entities. '
Five. The wording of paragraphs 2 and 4 is amended and a new paragraph 7 is added to Article 18:
" 2. All surcharges in favour of the Consortium will be collected by the insurance companies together with their premiums.
In the case of the fractionation of premiums, institutions may choose to raise these surcharges with the first split payment to be made, or to do so as the corresponding premium fractions sell, but in this case. Last case shall be applied on the fractions of the surcharge the types by fractionation which, for each possible periodicity, are fixed in the rates of the surcharges in favour of the Consortium, or in the case of the surcharge destined to finance the functions for the liquidation of insurance institutions, as referred to in paragraph 3.
The choice of the option of fractionating the surcharges in favor of the Consortium as they sell the corresponding raw fractions must be recorded in the technical bases of the entities, to be communicated to the Consortium and to be applied systematic form in the field or risk concerned, unless duly justified. '
" 4. The insurance companies will be obliged, at the time of submitting the Consortium the declaration of the surcharges collected on behalf of the latter, to practice a settlement and to enter its amount with the periodicity and subject to the rules that determine regulentarily.
Prior communication to the Consortium, institutions may liquidate the surcharges according to the premiums issued, without prejudice to the periodic regularisations that they have obtained. The choice of this option should apply to all policy portfolios of the entity and for calendar years.
Both the liquidations practiced by the General Directorate of Insurance and Pension Funds derived from Inspection minutes as those other than those that do not have a specified time limit for their specific rules must be entered within 15 days of the date of the notification of the liquidation to the insurance undertaking. '
" 7. Where the revenue from surcharges made to the Consortium is due in whole or in part, the refund shall be agreed upon at the request of the parties concerned, without prejudice to the checks and requests for information which may be made within the 15 days from the complete presentation of the evidence of the error warning. "
Six. Article 19 (2) is worded as follows:
" 2. The General Directorate of Insurance and Pension Funds, through the State Insurance Inspectorate and in accordance with the inspection plans approved on a proposal by the Consortium, will inspect the companies, be they legal entities or natural persons, to collect surcharges and premiums on behalf of the Consortium.
The costs of the personal and material means to which this inspection service will take place will be borne by the Consortium, formalizing, for these purposes, the appropriate agreement with the Directorate General of Insurance and Funds of Pensions, in which the financial compensation shall be determined to be paid to the body whose means have been allocated for this purpose, in order to meet these costs. '
Seven. A transitional provision is added which is worded as follows:
" Transient disposition. Adaptation of the existing insurance contracts to the modification of articles 7.b) and 8.5 of the recast text of the Legal Statute of the Insurance Compensation Consortium.
The insurance contracts in force shall be adapted to the amendment introduced by the eighth final provision of the Law on the Management, Supervision and Solvency of Insurance and Reinsurance Entities, Articles 7 (b) and 8.5 of the recast of the Legal Statute of the Insurance Compensation Consortium, approved by Royal Decree-Law 7/2004 of 29 October, before the first renewal takes place from the six months following the entry into force of that Law. The new issue insurance contracts to be concluded from 1 July 2016 shall be adapted to the same. "
Final disposition ninth. Amendment of the Royal Legislative Decree 8/2004 of 29 October, approving the recast of the Law on Civil and Safe Liability in the Movement of Motor Vehicles.
Article 8 is worded as follows:
" Article 8. Direct compensation agreements. Friendly declaration of accident. Health care agreements for traffic injuries.
1. In order to speed up compensation in the field of damage caused by the use and movement of motor vehicles, the insurance undertaking must adhere to the direct compensation agreements between insurance undertakings for the purposes of the settlement of claims of material damage.
2. For the purposes of the preceding paragraph, the insurer shall provide copies of the so-called friendly accident declaration to be used by the driver for the claim of claims to his insurer.
3. In order to speed up assistance to those injured in traffic, the insurer may adhere to the sectoral agreements on health care for injured persons in traffic as well as direct compensation agreements for personal injury.
4. For these purposes, such agreements must provide for equivalent and non-discriminatory conditions for all insurance undertakings, without any restrictions which are not indispensable for the achievement of that objective. "
Final disposition tenth. Amendment of Law 26/2006 of 17 July on private insurance and reinsurance mediation.
Law 26/2006, of July 17, of private insurance and reinsurance mediation is amended in the following terms:
One. Article 6 (1) is worded as follows:
" 1. Insurance intermediaries shall provide accurate and sufficient information in the promotion, offer and subscription of insurance contracts and, in general, in all their advisory activities, all in the terms set out by the Minister of Insurance. Economy and Competitiveness. "
Two. Article 8 is worded as follows:
" Article 8. The external contributors of insurance mediators:
1. Insurance intermediaries may enter into commercial contracts with external partners who cooperate with them in the distribution of insurance products acting on behalf of such mediators under their responsibility and direction, in the that the parties agree freely.
The Directorate-General for Insurance and Pension Funds will establish the general lines and the basic principles that will have to be met by the training programmes of the collaborators in terms of their content, organisation and execution.
2. External contributors shall not have the status of insurance intermediaries, and shall develop their activity under the direction, responsibility and financial capacity regime of the insurance mediator for whom they act.
Contributors should be identified as such and also indicate the identity of the mediator on behalf of the mediator. Under the terms of the trade agreement with the latter, the information to be provided to the insurance policyholder shall be all or part of the information set out in Article 42, without in any event the taker no longer receiving such complete information.
3. Insurance intermediaries shall keep a record book in which they shall record the personal data identifying the external partners, indicating the date of discharge and, where appropriate, the date of discharge, which shall be subject to the supervision of the Directorate-General. General Insurance and Pension Funds.
4. An external partner of an insurance mediator, natural or legal person, shall not be able to cooperate with other insurance intermediaries of different classes to that of the person who hired him in the first place. In addition, if you are an external contributor to a unique agent, you can only collaborate with other unique agents of the same insurer. "
Three. Article 15 (2) is worded as follows:
" 2. The data contained in the Register of exclusive insurance agents shall be up to date and shall be forwarded by each insurance institution to the Directorate-General for Insurance and Pension Funds by means of telematics for registration within the period of time. maximum of two months in the administrative register provided for in Article 52 of this Law. The exclusive insurance agent shall not be able to start its business until the Insurance and Pension Funds Directorate-General has registered it in that Register. '
Four. Paragraph 3 (e) and Article 21 (4) shall be worded as follows:
" e) Linked insurance agents will be committed to a training program for employees and external partners.
Also, insurance institutions shall take the necessary measures to train their related insurance agents and persons who are members of the management body provided for in the second subparagraph of point (b) of this Article. section on the insurance products mediated by these.
The documentation for the training programmes will be available to the Directorate-General for Insurance and Pension Funds, which may require the necessary modifications to be made.
The Directorate-General for Insurance and Pension Funds shall establish the general lines and the basic principles to be met by the training programmes of the related insurance agents in terms of their content, organization and execution. "
" 4. The application for registration as a related insurance agent shall be addressed to the Directorate-General for Insurance and Pension Funds and shall be accompanied by the documents proving that the requirements referred to in the previous one are met. paragraph 3. The maximum period for notification of the express decision of the application shall be three months from the date of submission of the application. The registration shall specify the insurance entities for which the linked insurance agent may carry out the insurance mediation activity. The application for registration shall be refused where the fulfilment of the conditions required for granting it is not established. '
Five. Article 27 (1) (c), (g) and (2) are hereby worded as follows:
"1.c) In insurance brokerage companies, at least half of the administrators shall have adequate experience to perform administration functions."
" 1.g) Present a programme of activities to indicate at least the insurance classes and the class of risks in which they are intended to mediate, the guiding principles and the territorial scope of their action; and materials to be available for the implementation of such a programme and the mechanisms adopted for the settlement of disputes over complaints and complaints from customers.
It should also include a commitment to provide a training programme for those persons who, as employees or external partners, have to assume a more direct relationship with them. potential policyholders and policyholders. For these purposes, the Directorate-General for Insurance and Pension Funds will establish the general lines and the basic principles to be met by the training programmes for the employees and external partners of the insurance in terms of its content, organization and execution. "
" 2. The application for registration as an insurance broker shall be addressed to the Directorate-General for Insurance and Pension Funds and shall be accompanied by the supporting documents relating to the fulfilment of the requirements referred to in the previous paragraph. The maximum period for notification of the express decision of the application shall be three months from the date on which the application for registration is lodged. The application for registration shall be refused where the fulfilment of the conditions required for granting it is not established. '
Six. Article 28 (2) is worded as follows:
" 2. The Directorate-General for Insurance and Pension Funds shall have a period of three months from the date of the submission of the information to oppose the acquisition of the significant share or of each of its increments equal to or exceed the 20 percent, 30 percent, or 50 percent limits, and also when the brokerage company could be controlled by virtue of the acquisition. The opposition must be founded on the fact that whoever intends to acquire it does not meet the requirements of commercial and professional repute in the terms defined in this Law or it incurs any of the prohibitions of this Law. If the Directorate-General for Insurance and Pension Funds does not decide within three months, the acquisition or increase of participation may be taken. If that Directorate-General expresses its conformity with the acquisition or increase of significant participation, it may set a maximum period of time other than the statement to make the acquisition. "
Seven. Article 39 (2) and (4) shall be worded as
:" 2. The Directorate-General for Insurance and Pension Funds shall lay down the basic requirements and principles to be met by training courses in financial and private insurance matters in terms of their content, organisation and implementation, must be programmed according to the degree and prior knowledge accredited by the assistants.
The natural or legal persons intending to organise the courses referred to in the previous paragraph must first apply to the Directorate-General for Insurance and Pension Funds. The requirements for the authorisation of the organisation of the training courses will be developed. The organizers of the courses will issue the certifications that demonstrate the improvement of the courses. "
" 4. The authorisation granted to training centres by any competent authority shall be of national effectiveness. The holder of the authorisation shall communicate to the competent authority of its Autonomous Community or to the Directorate-General for Insurance and Pension Funds, as appropriate, the opening of new training centres. '
Eight. Article 42 (4) is read as follows:
" 4. The advice under the obligation to carry out an objective analysis to which the insurance brokers are obliged will be provided on the basis of the analysis of a sufficient number of insurance contracts offered on the market in the the risk of hedging, so that it can make a recommendation, subject to professional criteria, in respect of the insurance contract that would be appropriate to the client's needs. "
Nine. Article 52 (1) is worded as follows:
" 1. The Directorate-General for Insurance and Pension Funds shall bear the special administrative register of insurance intermediaries, reinsurance brokers and their senior officials, in which they must register, prior to the commencement of their activities, insurance intermediaries and reinsurance brokers resident or domiciled in Spain subject to this Act. In the case of legal persons, in addition, administrators and persons who are part of the management, who are responsible for the mediation activities, shall be registered.
The insurance and reinsurance intermediaries domiciled in other Member States of the European Economic Area acting under the right of establishment or under the freedom to provide services shall also be taken services.
The distribution contracts referred to in Article 4.1 of this Law will also be taken into account in this register.
This administrative record shall express the circumstances that are regulated and access to its content shall be general and free of charge. "
Ten. Point (a) of paragraph 1 of the fourth additional provision is worded as follows:
" (a) Registration in the Special Administrative Register of insurance intermediaries, reinsurance brokers and their senior positions, of persons exercising as insurance agents or insurance agents, whether or not exclusive or related, as insurance brokers or reinsurance brokers. '
Once. References to the 'external aid', 'assistant' or 'auxiliary' shall be construed as being made to the 'external partner', in the following Articles and provisions: 10.4, 16.1, 17.2, 18, 19, 21.3.e), 23.2, 24, 25.1 and 4, 27.1.g), 30.2, 31.2.b), 53, 55.2.u), 62.1.d), 62.2, Additional provisions fourth and undecided.1.
Final disposition eleventh. Amendment of Law 35/2006, of 28 November, of the Tax on the Income of the Physical Persons and of partial modification of the laws of the Taxes on Societies, on the Income of Non-Residents and on the Heritage.
With effect from January 1, 2016, the following amendments are made to the Law 35/2006, of November 28, of the Tax on the Income of the Physical Persons and of the partial modification of the laws of the Taxes on Societies, on the Income of Non-Residents and on Heritage:
One. Article 99 (2) is amended, which is worded as follows:
" 2. Entities and legal persons, including entities in the allocation of income, who satisfy or pay income subject to this tax, shall be obliged to carry out withholding tax and income in respect of payment of the tax on The Income of the Physical Persons corresponding to the recipient, in the amount that is determined to be regulated and to enter the amount in the Treasury in the cases and in the form that are established. Taxpayers shall be subject to the same obligations as taxable persons who carry out economic activities in respect of income which they satisfy or pay in the exercise of those activities, as well as natural, legal and other persons. entities not resident in Spanish territory, operating in the Spanish territory by way of permanent establishment, or without permanent establishment in respect of the performance of the work they satisfy, as well as other yields subject to retention or income as a deductible expense for the collection of the income to which it refers Article 24 (2) of the recast text of the Non-Resident Income Tax Act.
When an entity, resident or non-resident, satisfies or pays income from the work to taxpayers who provide their services to a resident entity linked to that entity in the terms provided for in Article 16 of the text recast of the Company Tax Act or a permanent establishment based in Spanish territory, the entity or the permanent establishment in which the taxpayer provides its services, shall carry out the retention or entry into account.
Insurance companies domiciled in another Member State of the European Economic Area operating in Spain under the freedom to provide services shall be required to carry out withholding tax and to take account of the operations to be carried out in Spain.
Pension funds domiciled in another Member State of the European Union developing in Spain employment pension schemes subject to Spanish legislation, as provided for in Directive 2003 /41/EC of the European Parliament and of the Council The European Parliament and the Council of 3 June 2003 on the activities and supervision of pension funds for employment or, where appropriate, their managing bodies, shall be required to carry out withholding and income in relation to transactions which are carried out in Spain.
In no case will they be required to practice withholding or taking into account diplomatic missions or consular offices in Spain of foreign states. "
Two. Article 105 (2) (g) and (h) are amended as follows:
" (g) For insurance companies domiciled in another Member State of the European Economic Area operating in Spain under the freedom to provide services, in relation to operations carried out in Spain.
(h) For the entities provided for in the penultimate paragraph of Article 99 (2) of this Law, in relation to operations carried out in Spain. "
Final disposition twelfth. Amendment of Law 4/2014, of April 1, Basic of the Official Chambers of Commerce, Industry, Services and Navigation.
One. Article 6 (3) is amended with the following text:
" 3. The tutoring administration shall regulate the cases and proceedings for the creation, integration, merger, dissolution, liquidation and destination of the assets of the Chambers of Commerce, Industry, Services and Shipping and of the Councils of Cameras."
Two. A new Article 38 is added, with the following text:
" Article 38. Viability and dissolution plan for economic infeasibility.
1. Where the Chambers which are subject to the supervision of the General Administration of the State incur negative operating results in two consecutive accounting years, the Chamber concerned shall bring it to the attention of the administration of guardianship within a maximum of one month after this situation has been known.
The communication shall be accompanied by a feasibility plan, audited and approved by the plenary, describing the actions to be carried out for the correction of the imbalance within the time limit deemed necessary and, in any case, in a maximum of two accounting years. An inventory, balance sheet, audit report carried out shall also be accompanied, and any other documentation deemed necessary to assess the economic situation of the Chamber and the plan presented.
2. Submitted to the feasibility plan, the Management Administration may authorize, modify or determine any other actions it deems appropriate.
3. Where there are objective circumstances which make it manifestly impossible to resolve the situation of economic infeasibility by submitting a plan or if the plan is not fulfilled, the Administration of Protection may proceed to the suspension and dissolution of the governing bodies in accordance with Article 37, or to determine the extinction and liquidation of the Chamber.
4. In the event that the extinction is agreed upon, from this moment on, the Chamber will not be able to perform any legal act, except those that are strictly necessary to ensure the effectiveness of its liquidation. Agreed upon settlement, the House shall submit to the Board of Directors a settlement plan, which shall be authorized by the Administration.
When the opening of the delegation by the Official Chamber of Commerce, Industry, Services and Navigation of Spain is agreed upon in the extinction decision, the Spanish Chamber may formulate a delegation for the opening of the delegation. proposal for the transmission of assets or productive units. If the proposal is accepted by the House, the terms of the proposal shall be incorporated in the settlement plan.
The guardianship administration will supervise the fulfillment of the settlement plan. After the liquidation of the Chamber, automatic extinction will occur.
In no case may it be assumed or derived from the liquidation and extinction process, any obligation for the Administration of guardianship.
5. In the case of Chambers tutored by the Autonomous Communities, they shall comply with the provisions of their specific legislation. "
Final disposition thirteenth. Amendment of Law 27/2014 of 27 November of the Company Tax.
With effect from 1 January 2016, Article 128 (1) of Law 27/2014 of 27 November 2014 on Corporate Tax is amended, which is worded as follows:
" Article 128. Withholding and income on account.
1. Institutions, including the communities of property and owners, who satisfy or pay income under this tax, shall be obliged to retain or to make income on account, as a payment on account, the amount to be applied the rates of retention referred to in paragraph 6 of this Article to the statutory withholding tax, and to enter the amount in the Treasury in the cases and forms to be established.
They shall also be required to retain and enter natural persons in respect of income that they satisfy or pay in the exercise of their economic activities, as well as natural persons, legal persons and other non-resident entities. in Spanish territory which operate in the through permanent establishment.
They shall also be required to hold or take into account insurance institutions domiciled in another Member State of the European Economic Area operating in Spain under the freedom to provide services, in relationship to the operations carried out in Spain. '
Final disposition fourteenth. Competence title.
This Law is issued under the terms of Article 149.1.11. and the 13th of the Constitution which gives the State the powers to lay the foundations for the management of insurance and the bases and coordination of the general planning of the economic activity, respectively. The following precepts are excepted from the above:
(a) Articles 16, 17, 18, 40, 119, 120, 121, 123, 126 and 210 to 213, which shall not have a basic character.
(b) Article 130, which is issued under Article 149.1.3. of the Constitution, which attributes exclusive competence to the State in matters of international relations.
(c) Articles 9, 10, 11, 12, 13, 24, 27, 28, 29, 30, 31, 33, 34, 36, 37, Chapter II and Chapter IV of Title III, Articles 89.3, 96, 98.1 and 2, 165.4, 168, 172, 173, 175, 179 to 189 and the Annex, which are issued under the Article 149.1.6. of the Constitution, which attributes to the State jurisdiction in matters of commercial law.
(d) Article 97, which is issued under Article 149.1.6. of the Constitution, which confers jurisdiction on the State in matters of procedural law.
(e) Articles 53 and 59, which are given in accordance with Article 149.1.14. of the Constitution, which confers on the State jurisdiction in matters of general hacienda.
(f) Article 167.2, which is issued under Article 149.1.8. of the Constitution, which confers jurisdiction on the State in matters of civil law.
Final disposition fifteenth. Incorporation of European Union law.
This Law partially incorporates into Spanish law Directive 2009 /138/EC of the European Parliament and of the Council of 25 November 2009 on life assurance, access to insurance and reinsurance business and its exercise (Solvency II) as amended by Directive 2014 /51/EU of the European Parliament and of the Council of 16 April 2014 amending Directives 2003 /71/EC and 2009 /138/EC and Regulations (EC) No 1060/2009, (EU) No 1094/2010 and (EU) No 1060/2009 No 1095/2010 as regards the powers of the European Supervisory Authority (European Authority) of Insurance and Occupational Pensions) and of the European Supervisory Authority (European Securities and Markets Authority) (Omnibus II).
Also incorporated in Directive 2011 /89/EU of the European Parliament and of the Council of 16 December 2011 amending Directives 98 /78/EC, 2002 /67/EC, 2006 /48/EC and 2009 /138/EC as regards supervision additional financial institutions that are part of a financial conglomerate.
Final disposition sixteenth. Rules applicable to the procedures covered by this Act.
The procedures laid down in this Law shall be governed, in the first term, by the provisions contained therein and in its implementing rules and, in the alternative, by those of Law No 30/1992 of 26 November 1992 of the Legal Regime of the Public administrations and the Common Administrative Procedure and complementary rules.
Final disposition seventeenth. Regulatory authority.
1. It is up to the Government, on the proposal of the Minister of Economy and Competitiveness, and after hearing the Advisory Board of Insurance and Pension Funds, to develop this Law in matters that are expressly attributed to the regulatory authority, as well as, in general, in all those susceptible to regulatory development in which it is necessary for its proper implementation, by the adoption of its regulation and any subsequent amendments to it that are necessary.
2. It is up to the Minister of Economy and Competitiveness, after hearing the Advisory Board of Insurance and Pension Funds, to develop this Law in matters that specifically attributes to the regulatory authority of the Minister and, likewise, to develop their regulations as soon as necessary and so be provided for.
The regulatory development of the precepts relating to social welfare mutual societies shall be carried out by the Government through a specific regulation for such mutual societies.
18th final disposition. Transitional measure on interest rates without risk.
Prior to the authorisation of the Directorate-General for Insurance and Pension Funds, the insurance or reinsurance undertaking may apply a transitional adjustment to the relevant temporary structure of interest rates without risk with respect to the permissible insurance and reinsurance obligations under the terms and conditions to be determined in a regulated manner.
Nineteenth final disposition. Transitional measure on technical provisions.
Prior to the authorisation of the Directorate-General for Insurance and Pension Funds, the insurance or reinsurance undertaking may apply a transitional deduction to technical provisions in the terms and conditions to be determined. regulentarily.
Final disposition 20th. Other transitional measures.
The terms and conditions under which insurers and reinsurers will be able to:
1. To present and disclose the information referred to in Articles 80 and 114, on an annual or lower basis.
2. Apply a transitional regime for the classification of basic own funds at levels.
3. Apply the requirements referred to in Article 79 to certain financial instruments issued before 1 January 2011.
4. Apply a transitional regime to the market risk, concentration and differential sub-modules and the variable income risk sub-module.
5. Request approval of an internal group model when a part of the group with a substantially different risk profile exists.
6. Manage your contract portfolio to end your activities.
Final disposition twenty-first. Entry into force.
1. This Act will enter into force on January 1, 2016.
2. However, the transitional provision thirteenth and the additional provision sixteenth shall enter into force on the day following that of its publication. The fourth and tenth transitional provisions shall enter into force on 1 September 2015. The ninth final provision shall enter into force on 1 July 2016.
Therefore,
I command all Spaniards, individuals and authorities, to keep and keep this law.
Madrid, 14 July 2015.
FELIPE R.
The President of the Government,
MARIANO RAJOY BREY
ANNEX
Insurance Ramos
A) Ramos for insurance other than life insurance and ancillary risks.
(a) In direct insurance other than life insurance, the classification of risks by classes shall be adjusted to the following:
1. Accidents.
The benefits in this class may be: flat-rate, compensation, mixed of both and cover of vehicle occupants.
2. Disease (including healthcare and dependency).
The benefits in this class may be either lump-sum, repair, or reimbursement of the costs incurred, either by means of the guarantee of the service, or mixed of both.
3. Ground vehicles (non-rail).
Includes any damage suffered by land vehicles, whether or not they are automobiles, except for railroads.
4. Railway vehicles.
5. Air vehicles.
6. Maritime, lake and river vehicles.
7. Goods transported (including luggage and other goods carried).
8. Fire and natural elements.
Includes any damage suffered by property (other than those falling within classes 3, 4, 5, 6 and 7) caused by fire, explosion, storm, natural elements other than storm, nuclear power and sinking of terrain.
9. Other damage to property.
Includes any damage suffered by the goods (other than those covered by classes 3, 4, 5, 6 and 7) caused by hail or frost, as well as by theft or other events other than those included in class 8.
10. Civil liability in motor vehicles (including carrier liability).
11. Civil liability in air vehicles (including carrier liability).
12. Civil liability in maritime, lake and river vehicles (including carrier liability).
13. Civil liability in general.
Comprises all responsibility other than those mentioned in the classes 10, 11 and 12.
14. Credit.
Comprises general insolvency, installment sale, export credit, mortgage credit and agricultural credit.
15. Caution (direct and indirect).
16. Miscellaneous pecuniary losses.
Includes employment risks, insufficient income (in general), bad weather, loss of benefits, temporary deprivation of driving licence, persistence of overheads, unforeseen commercial expenses, loss of the venal value, loss of rent or income, indirect commercial losses other than those mentioned above, non-commercial pecuniary losses and other pecuniary losses.
17. Legal defence.
Insurance entities will have to opt for any of the following management modes:
(a) Trust the management of claims in the legal defence branch to a legally distinct entity, which shall be mentioned in the contract. If that institution is linked to another undertaking which has a business other than life insurance, the members of the staff of the first person dealing with the management of claims or the legal advice relating to such management shall not be entitled to simultaneously exercise the same or similar activity in the second. Also, persons who perform management positions of both entities may not be common.
(b) Ensure in the insurance contract that no member of staff dealing with the management of legal advice relating to such management exercises a similar activity in another class if the insurance undertaking operates in several or for another entity operating in a class other than life and having with the legal defence insurer financial, commercial or administrative links irrespective of whether or not it specialises in such a class.
c) Previewing in the contract the policyholder's right to entrust the defence of his interests, from the moment he is entitled to claim the insurer's intervention as provided in the policy, to a lawyer for his choice.
18. Assistance.
Assistance to persons who are in difficulty during displacements or absences from their home or from their permanent place of residence. It shall also include assistance to persons who are in difficulties in different circumstances, as determined by regulation, provided that they are not covered by other insurance classes.
19. Deaths.
Includes insurance operations that guarantee the provision of funeral services in the event of death, or alternatively, where the benefit cannot be performed due to force majeure or the service has been carried out through other means, other than those arranged by the insurer, to satisfy the legal heirs of the deceased insured the sum insured, which must not exceed the average value of the funeral costs for a death.
The risks included in a class may not be classified in another class, without prejudice to the provisions of paragraph 4.
When the authorization is granted simultaneously for several classes, the following denominations will be granted:
1. "Accidents and Disease": When classes 1 and 2 are authorized.
2. "Car Insurance": When the authorization includes the cover of occupants of vehicles of class 1 and classes 3, 7 and 10.
3. "Maritime and transport insurance": When the authorisation comprises the cover of vehicle occupants in class 1 and classes 4, 6, 7 and 12.
4. "Aviation insurance": When the authorisation comprises the cover of vehicle occupants in class 1 and classes 5, 7 and 11.
5. "Fire and other damage to property": When classes 8 and 9 are authorized.
6. "Civil Liability": When the classes 10, 11, 12 and 13 are authorized.
7. º "Credit and caution": When the classes 14 and 15 are authorized.
8. "General Insurance": When all classes of direct insurance other than life insurance listed in this article are authorized.
b) Accessories hazards.
The insurance undertaking which obtains an authorisation for a principal risk belonging to a business other than life insurance or a group of classes may also cover the risks included in another class without the need for obtain authorization for such risks, provided that the following requirements are met:
1. º That are linked to the main risk.
2. º That refer to the object covered against the main risk.
3. º That are covered by the contract that covers the main risk.
4. No more prior financial guarantees than for the principal, except as for the latter requirement, that the ancillary risk is that of the ancillary risk, are not required for the authorisation in the branch to which the ancillary risk belongs. civil liability the coverage of which does not exceed the limits to be determined.
When the accessory branch is 2 (disease), it does not include health care benefits or dependency assistance.
The risks included in classes 14 (credit), 15 (caution) and 17 (legal defence), may not be considered ancillary to other classes, except for class 17 (legal defence), which, when the conditions laid down in the The above paragraph may be considered as an ancillary risk to class 18 (assistance), if the main risk concerns only the assistance provided to persons in difficulty due to travel or absence from the place of residence or place of residence. of permanent residence, and as an ancillary risk to class 6 (maritime vehicles, lake and (fluvial), where it relates to disputes or risks arising from the use of maritime vessels or related to such use.
B) Life Ramp and Complementary Risks.
(a) The direct life insurance shall be included in a single class, the class of life, which shall comprise:
1. The insurance on life, both for death and survival, or both together, included in the survival insurance income; insurance on life with counterinsurance; marriage insurance, and birth insurance. It also includes any of these insurance when they are linked to investment funds or other assets referred to in Article 73. You can also understand dependency insurance.
2. Capitalization operations based on actuarial techniques, which consist of obtaining specific commitments as to their duration and their amount in exchange for single or previously fixed disbursements.
3. The management operations of collective retirement funds, such as those involving the insurance undertaking to manage the investments and, in particular, the assets representative of the reserves of the institutions which grant benefits in the event of death, in the event of life or in the event of cessation or reduction of activities. Such transactions shall also be included where they bear a guarantee of insurance, whether on the conservation of the capital, on the perception of a minimum interest.
4. Tontin operations, such as those which carry with them the formation of associations which gather together to capitalize on their contributions and to distribute the asset thus constituted among the survivors or between their heirs.
b) Supplementary risks.
The entities authorised to operate in the life class may cover as complementary risks those in class 1 (accidents) and in class 2 (disease), without the need to obtain authorisation for such classes, provided that the following requirements are met:
1. º That are linked to the main risk.
2. º That refer to the object covered against the main risk.
3. º That are guaranteed in the same contract with this.
4. When the supplementary branch is 2 (disease), it does not include health care benefits or dependency assistance.
