Consultation Paper on the draft proposal for ... - Eiopa - Europa

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comparison with the methods and outcome of the previous ORSA, including the specific effect of the change in risk profile, and , any proposed management actions considered necessary and any planned capital measures. 4.102. Very significant intra-group transactions follows article 245 and guidelines on supervision of intra-group transaction, guideline 3, but with an appropriate threshold or when the transaction exceeds the thresholds agreed within the college. Other very significant intra-group transactions to be reported are (non-exhaustive list): • Movements of capital or income outright without proper collateralisation; • Unusual or large amounts capital or income being transferred from an undertaking; • intra-group transactions not conducted at arm’s length and which may be disadvantageous to an undertaking – i.e. transactions on terms or under circumstances which parties operating at arm’s length would not approve or participate; • intra-group transactions that can adversely affect the solvency, liquidity or profitability of an undertaking, or are used as a mean of supervisory arbitrage to evade capital or other regulatory requirements; • Significant cases of breach on governing rules around those transactions. Section IV: Public Disclosure and Supervisory Reporting– Processes Guideline 46 SFCR - Undertakings’ disclosure policy Undertakings should, in their disclosure policy : a) detail who is responsible for drafting the disclosures along with those who are responsible for reviewing the disclosures; b) set out processes for completion of the various disclosure requirements and for review and approval by the administrative, management or supervisory body before disclosure; c) outline their view on information already available in the public domain that they believe is equivalent in nature and scope to the information requirements in the SFCR; d) set out their view on the specific information they intend not to disclose, under the circumstances set out in Article 53(1) of the Directive; and e) set out additional information voluntarily disclosed under Article 54 (2) of the Directive. 48/51 © EIOPA 2011
4.103. The undertakings’ disclosure policy to be developed under Article 55 (1) of the Directive follows the guidelines for written policies established under the Delegated Acts Guidelines on Governance, but some specific elements need to be developed for the disclosure policy, especially with regards to given possibilities or requirements existing for the SFCR in order to know if and how they are applied by the undertaking, such as: non-disclosure of information, reference to other documents or additional voluntary disclosures. Guideline 47 SFCR - Non-disclosure of information In order not to disclose specific information in the SFCR, undertakings should demonstrate that this information meets the criteria set out in Article 53(1) of the Directive. 4.104. The permission not to disclose information in the SFCR is dependent upon demonstration by the undertaking : a) that the publication of a given information would give competitors an unwarranted advantage, as for example is the case of disclosing specific business data that will permit identifying its proprietary know-how; or b) of the characteristics of the obligations to policyholders or other contractual relations binding the undertaking to secrecy or confidentiality, such as their legal form, parties to the obligation or contract, descriptions of contractual clauses or other obligations that entail secrecy or confidentiality, impact on disclosure requirements, assessment that these clauses or obligations cannot be modified without undue burden, for example. Guideline 48 SFCR - Non-disclosure of information Undertakings should not set up obligations to policy holders or other counterparty relationships binding an undertaking to secrecy or confidentiality in order to avoid disclosure of information in the SFCR. 4.105. Undertakings need to demonstrate that obligations or contractual relations invoked to obtain permission for non-disclosure of information in the SFCR have not been put in place in order to avoid such disclosure. This avoids any regulatory arbitrage. Guideline 49 SFCR - Additional voluntary disclosure Undertakings should not voluntarily disclose in the SFCR, or in any other public disclosure, any confidential information sent by the supervisor to the undertaking without prior permission from the supervisor. 49/51 © EIOPA 2011
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