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Procedural Rules and Evaluation Criteria for the Prudential Assessment of Acquisitions and Increase of Holdings in the Financial Sector Directive

Directive 2007/44

Article 1: Amendments to Directive 92/49/EEC

Directive 92/49/EEC is hereby amended as follows:

in Article 1, point (g), the second paragraph shall be replaced by the following: ‘For the purposes of this definition, in the context of Articles 8 and 15 and of the other levels of holding referred to in Article 15, the voting rights referred to in Articles 9 and 10 of Directive 2004/109 ( *1 ) , as well as the conditions regarding aggregation thereof laid down in Article 12(4) and (5) of that Directive, shall be taken into account. Member States shall not take into account voting rights or shares which investment firms or credit institutions may hold as a result of providing the underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis included under point 6 of Section A of Annex I to MIFID ( *2 ) , provided that those rights are, on the one hand, not exercised or otherwise used to intervene in the management of the issuer and, on the other, disposed of within one year of acquisition. ( *1 ) Directive 2004/109 of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( OJ L 390, 31.12.2004, p. 38 )." ( *2 ) MIFID of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments ( OJ L 145, 30.4.2004, p. 1 ). Directive as last amended by Directive 2007/44 ( OJ L 247, 21.9.2007, p. 1 )’ "

Article 15 shall be amended as follows:

Paragraph 1 shall be replaced by the following:

Paragraph 1a shall be deleted;

Paragraph 2 shall be replaced by the following:

the following Articles shall be inserted: ( *3 ) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) ( OJ L 375, 31.12.1985, p. 3 ). Directive as last amended by Directive 2005/1/EC of the European Parliament and of the Council ( OJ L 79, 24.3.2005, p. 9 )." ( *4 ) Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance ( OJ L 345, 19.12.2002, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *5 ) Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance ( OJ L 323, 9.12.2005, p. 1 ). Directive as amended by Directive 2007/44/EC." ( *6 ) Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) ( OJ L 177, 30.6.2006, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *7 ) Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance and reinsurance undertakings in an insurance or reinsurance group ( OJ L 330, 5.12.1998, p. 1 ). Directive as last amended by Directive 2005/68/EC." ( *8 ) Directive 2002/13/EC of the European Parliament and of the Council of 5 March 2002 amending Council Directive 73/239/EEC as regards the solvency margin requirements for non-life insurance undertakings ( OJ L 77, 20.3.2002, p. 17 )." ( *9 ) Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate ( OJ L 35, 11.2.2003, p. 1 ). Directive as amended by Directive 2005/1/EC." ( *10 ) Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of financial system for the purpose of money laundering and terrorist financing ( OJ L 309, 25.11.2005, p. 15 ).’;"

in Article 51, the following indent shall be added:

‘—

adjustments of the criteria set out in Article 15b(1), in order to take account of future developments and to ensure the uniform application of this Directive.’

Article 2: Amendments to Directive 2002/83/EC

LAD is hereby amended as follows:

in Article 1, point (j), the second subparagraph shall be replaced by the following: ‘For the purposes of this definition, in the context of Articles 8 and 15 and of the other levels of holding referred to in Article 15, the voting rights referred to in Articles 9 and 10 of Directive 2004/109 ( *11 ) , as well as the conditions regarding aggregation thereof laid down in Article 12(4) and (5) of that Directive, shall be taken into account. Member States shall not take into account voting rights or shares which investment firms or credit institutions may hold as a result of providing the underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis included under point 6 of Section A of Annex I to MIFID ( *12 ) ; provided that those rights are, on the one hand, not exercised or otherwise used to intervene in the management of the issuer and, on the other, disposed of within one year of acquisition. ( *11 ) Directive 2004/109 of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( OJ L 390, 31.12.2004, p. 38 )." ( *12 ) MIFID of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments ( OJ L 145, 30.4.2004, p. 1 ). Directive as last amended by Directive 2007/44 ( OJ L 247, 21.9.2007, p. 1 ).’ "

Article 15 shall be amended as follows:

Paragraph 1 shall be replaced by the following:

Paragraph 1a shall be deleted;

Paragraph 2 shall be replaced by the following:

the following Articles shall be inserted: ( *13 ) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) ( OJ L 375, 31.12.1985, p. 3 ). Directive as last amended by Directive 2005/1/EC of the European Parliament and of the Council ( OJ L 79, 24.3.2005, p. 9 )." ( *14 ) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) ( OJ L 228, 11.8.1992, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *15 ) Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) ( OJ L 177, 30.6.2006, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *16 ) Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance and reinsurance undertakings in an insurance or reinsurance group ( OJ L 330, 5.12.1998, p. 1 ). Directive as last amended by Directive 2005/68/EC." ( *17 ) Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate ( OJ L 35, 11.2.2003, p. 1 ). Directive as amended by Directive 2005/1/EC." ( *18 ) Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of financial system for the purpose of money laundering and terrorist financing ( OJ L 309, 25.11.2005, p. 15 ).’ "

in Article 64, the following indent shall be added:

‘—

adjustments of the criteria set out in Article 15b(1), in order to take account of future developments and to ensure the uniform application of this Directive.’

Article 3: Amendments to Directive 2004/39/EC

MIFID is hereby amended as follows:

in Article 4(1), point (27) shall be replaced by the following: ( *19 ) Directive 2004/109 of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( OJ L 390, 31.12.2004, p. 38 ).’ "

‘27

“Qualifying holding” means any direct or indirect holding in an investment firm which represents 10 % or more of the capital or of the voting rights, as set out in Articles 9 and 10 of Directive 2004/109 ( *19 ) , taking into account the conditions regarding aggregation thereof laid down in Article 12(4) and (5) of that Directive, or which makes it possible to exercise a significant influence over the management of the investment firm in which that holding subsists;

in Article 10, paragraphs 3 and 4 shall be replaced by the following:

the following Articles shall be inserted: ( *20 ) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) ( OJ L 228, 11.8.1992, p. 1 ). Directive as last amended by Directive 2007/44/EC of the European Parliament and of the Council ( OJ L 247, 21.9.2007, p. 1 )." ( *21 ) Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance ( OJ L 323, 9.12.2005, p. 1 ). Directive as amended by Directive 2007/44/EC." ( *22 ) Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) ( OJ L 177, 30.6.2006, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *23 ) Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate ( OJ L 35, 11.2.2003, p. 1 ). Directive as amended by Directive 2005/1/EC ( OJ L 79, 24.3.2005, p. 9 )." ( *24 ) Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) ( OJ L 177, 30.6.2006, p. 201 )." ( *25 ) Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of financial system for the purpose of money laundering and terrorist financing ( OJ L 309, 25.11.2005, p. 15 ).’ "

Article 4: Amendments to Directive 2005/68/EC

RD is hereby amended as follows:

in Article 2(2), the third subparagraph shall be replaced by the following: ‘For the purposes of paragraph 1(j), in the context of Articles 12 and 19 to 23 and of the other levels of holding referred to in Article 19 to 23, the voting rights referred to in Articles 9 and 10 of Directive 2004/109 ( *26 ) , as well as the conditions regarding aggregation thereof laid down in Article 12(4) and (5) of that Directive shall be taken into account. Member States shall not take into account voting rights or shares which investment firms or credit institutions may hold as a result of providing the underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis included under point 6 of Section A of Annex I to MIFID, provided that those rights are, on the one hand, not exercised or otherwise used to intervene in the management of the issuer and, on the other, disposed of within one year of acquisition. ( *26 ) Directive 2004/109 of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( OJ L 390, 31.12.2004, p. 38 ).’ "

Article 19 shall be replaced by the following: ( *27 ) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) ( OJ L 375, 31.12.1985, p. 3 ). Directive as last amended by Directive 2005/1/EC of the European Parliament and of the Council ( OJ L 79, 24.3.2005, p. 9 )." ( *28 ) Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) ( OJ L 177, 30.6.2006, p. 1 ). Directive as last amended by Directive 2007/44/EC.’ "

the following Article shall be inserted: ( *29 ) Directive 2005/60 of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of financial system for the purpose of money laundering and terrorist financing ( OJ L 309, 25.11.2005, p. 15 ).’ "

Article 20 shall be replaced by the following:

in Article 21, the second paragraph shall be replaced by the following: ‘Such a person shall likewise notify the competent authorities if he has taken a decision to reduce his qualifying holding so that the proportion of the voting rights or of the capital held would fall below 20 %, 30 % or 50 % or so that the reinsurance undertaking would cease to be his subsidiary. Member States need not apply the 30 % threshold where, in accordance with Article 9(3)(a) of Directive 2004/109, they apply a threshold of one-third.’;

in Article 56, the following point shall be added:

‘f

adjustments of the criteria set out in Article 19a(1), in order to take account of future developments and to ensure the uniform application of this Directive.’

Article 5: Amendments to Directive 2006/48/EC

Directive 2006/48 is hereby amended as follows:

in Article 12(1), the second subparagraph shall be replaced by the following: ‘In determining whether the criteria for a qualifying holding in the context of this Article are fulfilled, the voting rights referred to in Articles 9 and 10 of Directive 2004/109 ( *30 ) , as well as the conditions regarding aggregation thereof laid down in Article 12(4) and (5) of that Directive shall be taken into account. Member States shall not take into account voting rights or shares which investment firms or credit institutions may hold as a result of providing the underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis included under point 6 of Section A of Annex I to MIFID ( *31 ) , provided that those rights are, on the one hand, not exercised or otherwise used to intervene in the management of the issuer and, on the other, disposed of within one year of acquisition. ( *30 ) Directive 2004/109 of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( OJ L 390, 31.12.2004, p. 38 )." ( *31 ) MIFID of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments ( OJ L 145, 30.4.2004, p. 1 ). Directive as last amended by Directive 2007/44 ( OJ L 247, 21.9.2007, p. 1 )’ "

Article 19 shall be replaced by the following: ( *32 ) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) ( OJ L 375, 31.12.1985, p. 3 ). Directive as last amended by Directive 2005/1/EC." ( *33 ) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) ( OJ L 228, 11.8.1992, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *34 ) Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance ( OJ L 345, 19.12.2002, p. 1 ). Directive as last amended by Directive 2007/44/EC." ( *35 ) Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance ( OJ L 323, 9.12.2005, p. 1 ). Directive as amended by Directive 2007/44/EC.’;"

the following Articles shall be inserted: ( *36 ) Directive 2005/60 of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of financial system for the purpose of money laundering and terrorist financing ( OJ L 309, 25.11.2005, p. 15 ).’ "

Article 20 shall be replaced by the following:

Article 21(3) shall be replaced by the following:

in Article 150(2), the following point shall be added:

‘f

adjustments of the criteria set out in Article 19a(1), in order to take account of future developments and to ensure the uniform application of this Directive.’

Article 6: Review

 By 21 March 2011, the Commission shall, in cooperation with the Member States, review the application of this Directive and submit a report to the European Parliament and the Council, together with any appropriate proposals. 

Article 7: Transposition

 1 
 Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 21 March 2009. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 
 2 
 Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. 

Article 8: Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union . Official Journal of the European Union

The assessment procedure applied to proposed acquisitions for which notifications referred to in Articles 1(2), 2(2), 3(2), 4(2) and 5(2) have been submitted to the competent authorities prior to the entry into force of the laws, regulations and administrative provisions necessary to comply with this Directive, shall be carried out in accordance with the national law of the Member States in force at the time of notification.

Article 9: Addressees

This Directive is addressed to the Member States.

Recital 1

Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) ( 4 ) , Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance ( 5 ) , Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments ( 6 ) , Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance  and Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) ( 7 ) regulate situations in which a natural or legal person has taken a decision to acquire or increase a qualifying holding in a credit institution, assurance, insurance or re-insurance undertaking or an investment firm.

Recital 2

The legal framework has so far provided neither detailed criteria for a prudential assessment of the proposed acquisition nor a procedure for their application. A clarification of the criteria and the process of prudential assessment is needed to provide the necessary legal certainty, clarity and predictability with regard to the assessment process, as well as to the result thereof.

Recital 3

The role of the competent authorities in both domestic and cross-border cases should be to carry out the prudential assessment within a framework of a clear and transparent procedure and a limited set of clear assessment criteria of strictly prudential nature. It is therefore necessary to specify criteria for the supervisory assessment of shareholders and management in relation to a proposed acquisition and a clear procedure for their application. This Directive prevents any circumvention of the initial conditions for authorisation by acquiring a qualifying holding in the target entity in which the acquisition is proposed. This Directive should not prevent the competent authorities from taking into account commitments made by the proposed acquirer to meet prudential requirements under the assessment criteria laid down in this Directive, provided that the rights of the proposed acquirer under this Directive are not affected.

Recital 4

The prudential assessment of a proposed acquisition should not in any way suspend or supersede the requirements of on-going prudential supervision and other relevant provisions to which the target entity has been subject since its own initial authorisation.

Recital 5

This Directive should not prevent market participants from operating effectively in the securities market. The information required for assessing a proposed acquisition, as well as the assessment of the compliance with the different criteria should, therefore, be proportionate, among other things, to the involvement of the proposed acquirer in the management of the entity in which the acquisition is proposed. The competent authorities should, in accordance with good administrative practice, complete their assessment without delay and inform the proposed acquirer also of a positive assessment, in any event if requested to do so by the proposed acquirer.

Recital 6

For markets that are increasingly integrated and where group structures may extend to various Member States, the acquisition of a qualifying holding is subject to scrutiny in a number of Member States. Maximum harmonisation throughout the Community of the procedure and the prudential assessments, without the Member States laying down stricter rules, is therefore critical. The thresholds for notifying a proposed acquisition or a disposal of a qualifying holding, the assessment procedure, the list of assessment criteria and other provisions of this Directive to be applied to the prudential assessment of proposed acquisitions should therefore be subject to maximum harmonisation. This Directive should not prevent the Member States from requiring that the competent authorities are to be informed of acquisitions of holdings below the thresholds laid down in this Directive, so long as a Member State imposes no more than one additional threshold below 10 % for this purpose. Nor should it prevent the competent authorities from providing general guidance as to when such holdings would be deemed to result in significant influence.

Recital 7

In order to ensure the clarity and predictability of the assessment procedure there should be a limited maximum period of time for completing the prudential assessment. During the assessment procedure, the competent authorities should be able to interrupt that period only once and only for the purpose of requesting additional information after which the authorities should in any event complete the assessment within the maximum assessment period. This should not prevent the competent authorities from asking for further clarification even after the time period set for completing the requested information or allowing the proposed acquirer to submit additional information at any time during the maximum assessment period, provided that this time period is not exceeded. Neither should this prevent the competent authorities from opposing the proposed acquisition, where appropriate, at any time during the maximum assessment period. Cooperation between the proposed acquirer and the competent authorities should thus remain intrinsic to the entire assessment period. Regular contact between the proposed acquirer and the competent authority of the regulated entity in which the acquisition is proposed may also commence in anticipation of a formal notification. Such cooperation should imply a genuine effort to assist each other in order, for example, to avoid unanticipated requests for information or the submission of information late in the assessment period.

Recital 8

With regard to the prudential assessment, the criterion concerning the ‘reputation of the proposed acquirer’ implies the determination of whether any doubts exist about the integrity and professional competence of the proposed acquirer and whether these doubts are founded. Such doubts may arise, for instance, from past business conduct. The assessment of the reputation is of particular relevance if the proposed acquirer is an unregulated entity but should be facilitated if the acquirer is authorised and supervised within the European Union.

Recital 9

A list established by the Member State should specify the information that may be requested for the purpose of assessments, strictly according to the criteria set out in this Directive. The information should be proportionate and adjusted to the nature of the proposed acquisition, in particular if the proposed acquirer is an unregulated entity or established in a third country. Provision should also be made for the possibility to request less extensive information in justified cases.

Recital 10

It is essential that the competent authorities work in close cooperation with each other when assessing the suitability of a proposed acquirer that is a regulated entity authorised in another Member State or in another sector. While it is considered appropriate that the responsibility for the final decision regarding the prudential assessment remains with the competent authority responsible for the supervision of the entity in which the acquisition is proposed, that competent authority should take into full account the opinion of the competent authority responsible for the supervision of the proposed acquirer, particularly as regards the assessment criteria directly related to the proposed acquirer.

Recital 11

The Commission should, in accordance with the rights and obligations set out in the Treaty, be able to monitor the application of the provisions regarding the prudential assessment of acquisitions in order to fulfil the tasks assigned to it with regard to the enforcement of Community law. Having regard to Article 296 of the Treaty, the Member States should cooperate with the Commission by providing it, once the assessment procedure has been completed, with information pertaining to prudential assessments carried out by their competent authorities where such information is requested for the sole purpose of determining whether Member States have infringed their obligations under this Directive.

Recital 12

The assessment criteria may, in the future, need adjustments to take into account market developments and the need for a uniform application throughout the Community. Such technical adjustments should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( 8 ) .

Recital 13

Since the objective of this Directive, namely the establishment of harmonised procedural rules and assessment criteria throughout the Community, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

Recital 14

The Community's intention is to keep its financial markets open to the rest of the world and thus to help improve the liberalisation of the global financial markets in third countries. It would be beneficial for all market participants to achieve equivalent access to investment worldwide. Member States should report to the Commission cases in which Community credit institutions, investment firms, other financial institutions or insurance companies acquiring credit institutions, investment firms, other financial institutions or insurance companies situated in a third country are not granted the same treatment as domestic acquirers and encounter major impediments. The Commission should propose measures to remedy such cases or raise them in an appropriate forum.

Recital 15

In accordance with point 34 of the Interinstitutional Agreement on better law-making ( 9 ) , Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

Recital 16

Directives 92/49/EEC, 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC should therefore be amended accordingly,

Footnote p0: Done at Strasbourg, 5 September 2007.

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