Question ID: 2899
Regulation Reference: (EU) No 2015/35 - supplementing Dir 2009/138/EC - taking up & pursuit of the business of Insurance and Reinsurance (SII), (EU) No 2009/138 - Solvency II Directive (Insurance and Reinsurance)
Topic: Risk Free Rate (RFR)
Article: 76, 77 and 77e of SII Directive; 37, 38 of DR
Status: Final
Date of submission: 17 Nov 2023
Question
Which technical information, should insurance and reinsurance undertakings use for calculating their technical provisions, irrespective of the date on which they report to their competent authorities?
EIOPA answer
The answer to this question is provided by the European Commission.
According to Article 77e(1) of the Solvency II Directive EIOPA shall lay down and publish the information identified in indent (a) to (c) at least quarterly.
However, the mere publication of that information creates no immediate legal consequence for insurance or reinsurance undertakings.
To that end, paragraph 2 of Article 77e empowers the Commission to use its prerogative to adopt directly applicable Implementing Acts by using the information provided by EIOPA. The instrument of an Implementing Act has been deliberately chosen by co-Legislators as uniform conditions for the calculation of the technical provisions defined in the Solvency II Directive and the Solvency II Delegated Regulation are needed across Member States.
Moreover, it has to be noted that irrespective of the monthly risk-free interest rate (RFR) publications by EIOPA, the Commission Implementing Regulations cover the time period comprising the end of the most recent quarter until one day before the next quarterly reference date. This ensures that gaps between reporting reference dates are avoided and enhances legal certainty for insurance undertakings.
To recall, following the submission of that information by EIOPA to the Commission (Article 77e(1)) and the adoption of an Implementing Act by the Commission (Article 77e(2)), in accordance with paragraph 3 of Article 77e insurance and reinsurance undertakings are required to use that technical information in calculating the best estimate in accordance with Article 77.
In accordance with Article 77e(2), the goal of the Implementing Regulation is to ensure uniform conditions for the calculation of technical provisions (the value of which is equal to the sum of best estimate and risk margin) and of basic own funds by insurance and reinsurance undertakings for the purposes of Directive 2009/138/EC.
In addition, Article 76(5) of the Solvency II Directive requires undertakings to calculate technical provisions in accordance with Articles 77-82 and 86, which include the use of the technical information referred to in Article 77e.
Consequently, and in order to comply with such requirements, when calculating technical provisions insurance undertakings shall use that technical information which was adopted by the Commission in accordance with Article 77e (2).
Disclaimer provided by the European Commission:
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.