Question ID: 3420
Regulation Reference: (EU) No 2009/138 - Solvency II Directive (Insurance and Reinsurance)
Article: 17((2))
Status: Rejected
Date of submission: 15 Sep 2025
Question
We request clarification as to whether EIOPA has previously taken a position on the following 11 questions:
1. Question: Where the competent authority designated by a Member State has determined that a self-governing institution carries on insurance business, must the first and second conditions laid down in Article 17(2) of the Solvency II Directive be regarded as satisfied?
2. Question: Where the supervisory authority designated by a Member State has determined that a self-governing institution carries on insurance business within the meaning of Article 17(2) of the Solvency II Directive, is the pursuit of that activity subject to prior authorization under Article 14 and to compliance with the conditions laid down in Article 18 thereof? If not, must the Solvency II Directive be interpreted as permitting and requiring the supervisory authority of the Member State to grant an exemption from those requirements before the lawful commencement of insurance business?
3. Question: Must the requirement of prior authorisation in Article 14 of the Solvency II Directive be interpreted as meaning that an authorisation granted by the supervisory authority designated by a Member State may have retroactive effect?
4. Question: Must the final condition laid down in Article 17(2) of the Solvency II Directive — namely, that that activity is carried on "under conditions equivalent to those under" — be interpreted as meaning that a self-governing institution governed by public law and set up by the Member State must comply with the same conditions as those applicable to undertakings governed by private law?
5. Question: Must Member States ensure - under the Solvency II Directive, including Chapter III thereof -the ongoing supervision of the pursuit of insurance business by a self-governing institution governed by public law pursuant to Article 17(2), including supervision of compliance with the requirement that such business be carried on under the same conditions as those applicable to private-law undertakings?
6. Question: Must Articles 102 and 106 TFEU be interpreted as meaning that a statutory insurance scheme such as that at issue in the main proceedings, under which a specific group of policyholders is required to take out insurance with Byggeskadefonden, constitutes an undertaking within the meaning of those provisions?
7. Question: Do Articles 106 and 102 TFEU preclude national legislation which requires a specific group of policyholders to take out insurance with a particular undertaking, where the insurance service is also offered by other market operators, given that insurance cover is compulsory for all newly constructed residential buildings?
8. Question: Must Member States, within the meaning of Article 17(2) of the Solvency II Directive and Articles 102 and 106 TFEU, lay down the same conditions for access to judicial review of commitments to provide cover and recourse claims in respect of insurance undertakings governed by public law and those governed by private law, including as regards the review of legality and procedural errors?
9. Question: Is it compatible with the Charter of Fundamental Rights of the European Union for non-arbitrable objections against a public-law insurance undertaking — including objections relating to legal basis, administrative practice and procedure — to be excluded from judicial review, other than by annulment proceedings against final arbitral awards which are nevertheless enforceable, including by enforcement through public authorities and the right of set-off?
10. Question: Are Member States, including a self-governing institution established by a Member State as referred to in Article 17(2) of the Solvency II Directive, obliged to ensure the repayment of amounts collected from a private party if one or more of Questions 1 to 8 are answered in the affirmative?
11. Question: Are Member States, including a self-governing institution established by a Member State as referred to in Article 17(2) of the Solvency II Directive, obliged to ensure the repayment of amounts collected from a private party if Question 9 is answered in the affirmative and such objections have in fact been raised but barred by the arbitral award?
Background of the question
The questions are posed at the initiative of the Danish Financial Supervisory Authority (in Danish: "Finanstilsynet"), which is the competent authority in Denmark in matters relating to the Solvency II Directive, in order to ascertain whether EIOPA has previously taken a position on the 11 questions. The 11 questions are part of two pending civil proceedings in the Danish courts, one before the Copenhagen City Court and the other before the High Court of Western Denmark. Both cases concern a linguistic ambiguity in the Danish version of Article 17(2) of the Solvency II Directive. It has not yet been determined whether there should be made a reference for a preliminary ruling to the Court of Justice of the European Union. Both cases pertain to whether Byggeskadefonden — an independent, self-governing undertaking established by law and subject to public regulation — engages in insurance activities in breach of the Solvency II Directive and EU competition law. Byggeskadefonden is currently governed by Chapter 11 of the Danish Social Housing Act (Consolidated Act No. 1171 of 11 November 2024 on Social Housing, in Danish: "Almenboligloven"). The Byggeskadefonden activities include, among other things, the reimbursement of costs related to the remediation of construction defects and the legal pursuit of liability claims against contractors. The Danish Financial Supervisory Authority (Finanstilsynet) has assessed that Byggeskadefonden's activities meet the definition of insurance business. For certain types of construction, the Social Housing Act stipulates that it is mandatory to take out a construction defect insurance policy with Byggeskadefonden (latent defects insurance). This follows from the provisions 151(1) and (3), and provisions 151a(1) of the Social Housing Act. However, Byggeskadefonden is not the sole provider of construction defect insurance in the Danish market, nor the European market. Since 1 April 2008, it has been a statutory requirement in Denmark for professional developers to obtain construction defect insurance when constructing new permanent residences or substantially converting existing buildings into new permanent residences, see Chapter 4A of the Danish Building Act (Consolidated Act No. 1178 of 23 September 2016, published on 27 September 2016, as most recently amended by Act No. 2079 of 21 December 2020, published on 22 December 2020). Accordingly, social housing developers could obtain similar insurance coverage from other insurance undertakings operating in the Danish market. Such access is, however, precluded under mandatory provisions of Danish law, pursuant to which the insurance must be taken out with the Byggeskadefonden. Undertakings providing insurance services are subject to extensive regulatory requirements under the Solvency II Directive, as transposed into Danish law by the Financial Business Act (Consolidated Act No. 169 of 16 February 2025 on Insurance Business in Cross-sectoral Pension Funds, Life Insurance Companies and Non-life Insurance Companies, etc., in Danish: "Lov om forsikringsvirksomhed"). Unlike other providers of construction defect insurance lawfully operating in the Danish market — whether domestic or foreign — Byggeskadefonden does not carry out its activities in compliance with these requirements. Accordingly, the questions seek to clarify whether this constitutes a violation of the Solvency II Directive, in particular Article 17(2), and the competition rules under EU law.
EIOPA answer
This question has been rejected as the context in which it has been raised is case specific and not of general applicability.
Any response would contain bespoke advice and therefore falls outside the scope of the general Q&A process as defined in Article 16b of Regulation (EU) 1094/2010.