(fra kommisjonsforordningen)

(1) In case of dominant influence or significant influence, or for horizontal groups with no capital links between different undertakings, the group supervisors should be able to identify the existence of a group, according to objective criteria, to ensure predictability for market participants, while taking into account the group’s specificities. 

(2) To identify undertakings that are under dominant or significant influence and undertakings that are managed on a unified basis, supervisory authorities should consider a targeted set of elements, to specify the respective factors set out in Article 212(4) of Directive 2009/138/EC. Supervisory authorities should consider all those elements when performing their assessment, taking into account the group’s specificities. Nevertheless, supervisory authorities should have the possibility to deem compliance with one or more of those elements sufficient to conclude that the corresponding factor set out in Article 212(4) of Directive 2009/138/EC is met. Supervisory authorities should not consider those factors in isolation, and their assessment should take into account the type of undertakings involved and their organisational structure. 

(3) To identify undertakings that are under dominant or significant influence and undertakings that are managed on a unified basis, supervisory authorities should assess the existence of contractual rights. In the absence of contractual rights, or where those contractual rights are not sufficient in themselves to identify the control or ability of a natural person or an undertaking to influence decisions, including financial ones, of another undertaking, supervisory authorities should take into account additional qualitative factors. 

(4) When assessing whether activities carried out by insurance or reinsurance undertakings under the right of establishment or under the freedom to provide services are of relevance with respect to the host Member State’s market, supervisory authorities should perform a comprehensive assessment focusing on the protection of policyholders and beneficiaries and the financial stability of the host Member State’s market. 

(5) High concentrations of cross-border activities can indicate a significant reliance on the host Member State’s market by insurance or reinsurance undertakings, which could pose systemic risks. Therefore, supervisory authorities should look at the concentrations of insurance or reinsurance undertaking’s cross-border activities carried out in the host Member State’s market. 

(6) Recent failures of insurance and reinsurance undertakings operating cross-border have demonstrated the need for supervisory authorities to ensure that those activities are properly managed by those undertakings. Supervisory authorities should therefore look at the impact of those activities on the insurance market and on the policyholders and beneficiaries in the host Member State. That assessment should consider different granularity of cross-border activities of the insurance or reinsurance undertaking concerned compared to that undertaking’s total activity or to the whole insurance market of the host Member State, including specific segments, lines of business, insurance risks or type of insurance products. 

(7) Policyholders and beneficiaries benefit from the availability of alternative insurance products that can meet similar demands and needs. While the cross border distribution of insurance products in a host Member State market can increase the range of available products that meet similar demands and needs, it may also reduce it. Reduction or unavailability of alternative comparable products may result in particular where cross border products or policies possess a significant price advantage over competing products or have bespoke product features that few or no other products possess. A lower degree of substitutability between products as a result of cross border activity can exacerbate the consequences on policyholders and beneficiaries of a potential failure of a cross border undertaking. Therefore, supervisory authorities should consider the level of substitutability and the potential detriment to policyholders and beneficiaries in the host Member State’s market. 

(8) The conditions and criteria that supervisory authorities are to use when determining which activities of insurance or reinsurance undertakings are of relevance with respect to the host Member State’s market should provide the supervisory authority of the host Member State with a framework for identifying those insurance or reinsurance undertakings. At the same time, the insurance markets of the Member States have their own specificities as regards to specific segments, lines of business, insurance risks or type of insurance products. Therefore, considering the intrinsic differences among those national insurance markets, it is necessary to leave some degree of flexibility to the supervisory authority of the host Member State to exercise its judgment within the parameters of those conditions and criteria. 

(9) Under current rules, supervisory authorities across the Union often fail to reach a common view on how to identify some specific group structures and to ensure effective supervisory cooperation in addressing issues related to an insurance or reinsurance undertaking which is operating on a cross-border basis. Article 152aa(2) and Article 212(5) of Directive 2009/138/EC mandate the Commission to adopt regulatory technical standards to specify, respectively, criteria to determine where the insurance or reinsurance cross-border activity is of relevance with respect to the host Member State’s market, and factors to identify groups. Those criteria aim to improve cooperation and information-sharing between host and home supervisory authorities, and support effective and efficient group supervision. By harmonising supervisory practices and framing public authorities’ discretion, those criteria are beneficial to both the protection of policyholders and the competitiveness of European insurers and reinsurers. It is therefore, necessary to include those regulatory technical standards in a single delegated Regulation. 

(10) This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Insurance and Occupational Pensions Authority. 

(11) The European Insurance and Occupational Pensions Authority has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Insurance and Reinsurance Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council