Avis juridique important

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31978L0855

Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54 (3) (g) of the Treaty concerning mergers of public limited liability companies

Official Journal L 295 , 20/10/1978 P. 0036 - 0043 Finnish special edition: Chapter 17 Volume 1 P. 0034  Greek special edition: Chapter 06 Volume 2 P. 0038  Swedish special edition: Chapter 17 Volume 1 P. 0034  Spanish special edition: Chapter 17 Volume 1 P. 0076  Portuguese special edition Chapter 17 Volume 1 P. 0076

THIRD COUNCIL DIRECTIVE  of 9 October 1978  based on Article 54 (3) (g) of the Treaty concerning mergers of public limited liability companies  (78/855/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 54 (3) (g) thereof,  Having regard to the proposal from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas the coordination provided for in Article 54 (3) (g) and in the general programme for the abolition of restrictions on freedom of establishment (4) was begun with Directive 68/151/EEC (5);  Whereas this coordination was continued as regards the formation of public limited liability companies and the maintenance and alteration of their capital with Directive 77/91/EEC (6), and as regards the annual accounts of certain types of companies with Directive 78/660/EEC (7);  Whereas the protection of the interests of members and third parties requires that the laws of the Member States relating to mergers of public limited liability companies be coordinated and that provision for mergers should be made in the laws of all the Member States;  Whereas in the context of such coordination it is particularly important that the shareholders of merging companies be kept adequately informed in as objective a manner as possible and that their rights be suitably protected;  Whereas the protection of employees' rights in the event of transfers of undertakings, businesses or parts of businesses is at present regulated by Directive 77/187/EEC (8);  Whereas creditors, including debenture holders, and persons having other claims on the merging companies must be protected so that the merger does not adversely affect their interests;  Whereas the disclosure requirements of Directive 68/151/EEC must be extended to include mergers so that third parties are kept adequately informed;  Whereas the safeguards afforded to members and third parties in connection with mergers must be extended to cover certain legal practices which in important respects are similar to merger, so that the obligation to provide such protection cannot be evaded;  (1)OJ No C 89, 14.7.1970, p. 20. (2)OJ No C 129, 11.12.1972, p. 50 ; OJ No C 95, 28.4. 1975, p. 12. (3)OJ No C 88, 6.9.1971, p. 18. (4)OJ No 2, 15.1.1962, p. 36/62. (5)OJ No L 65, 14.3.1968, p. 8. (6)OJ No L 26, 31.1.1977, p. 1. (7)OJ No L 222, 14.8.1978, p. 11. (8)OJ No L 61, 5.3.1977, p. 26.   Whereas to ensure certainty in the law as regards relations between the companies concerned, between them and third parties, and between the members, the cases in which nullity can arise must be limited by providing that defects be remedied wherever that is possible and by restricting the period within which nullification proceedings may be commenced,  HAS ADOPTED THIS DIRECTIVE:    Article 1 Scope  1. The coordination measures laid down by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company:    - Germany : die Aktiengesellschaft,       - Belgium : la société anonyme / de naamloze vennootschap,       - Denmark : aktieselskaber,       - France : la société anonyme,       - Ireland : public companies limited by shares, and public companies limited by guarantee having a share capital,       - Italy : la società per azioni,       - Luxembourg : la société anonyme,       - the Netherlands : de naamloze vennootschap,       - the United Kingdom : public companies limited by shares, and public companies limited by guarantee having a share capital.         2. The Member States need not apply this Directive to cooperatives incorporated as one of the types of company listed in paragraph 1. In so far as the laws of the Member States make use of this option, they shall require such companies to include the word "cooperative" in all the documents referred to in Article 4 of Directive 68/151/EEC.  3. The Member States need not apply this Directive in cases where the company or companies which are being acquired or will cease to exist are the subject of bankruptcy proceedings, proceedings relating to the winding-up of insolvent companies, judicial arrangements, compositions and analogous proceedings.   CHAPTER I Regulation of merger by the acquisition of one or more companies by another and of merger by the formation of a new company  Article 2 The Member States shall, as regards companies governed by their national laws, make provision for rules governing merger by the acquisition of one or more companies by another and merger by the formation of a new company.   Article 3 1. For the purposes of this Directive, "merger by acquisition" shall mean the operation whereby one or more companies are wound up without going into liquidation and transfer to another all their assets and liabilities in exchange for the issue to the shareholders of the company or companies being acquired of shares in the acquiring company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.  2. A Member State's laws may provide that merger by acquisition may also be effected where one or more of the companies being acquired is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders.   Article 4 1. For the purposes of this Directive, "merger by the formation of a new company" shall mean the operation whereby several companies are wound up without going into liquidation and transfer to a company that they set up all their assets and liabilities in exchange for the issue to their shareholders of shares in the new company and a cash payment, if any, not exceeding 10 % of the nominal value of the shares so issued or, where they have no nominal value, of their accounting par value.  2. A Member State's laws may provide that merger by the formation of a new company may also be effected where one or more of the companies which are ceasing to exist is in liquidation, provided that this option is restricted to companies which have not yet begun to distribute their assets to their shareholders.    CHAPTER II Merger by acquisition  Article 5 1. The administrative or management bodies of the merging companies shall draw up draft terms of merger in writing.  2. Draft terms of merger shall specify at least:    (a) the type, name and registered office of each of the merging companies;       (b) the share exchange ratio and the amount of any cash payment;       (c) the terms relating to the allotment of shares in the acquiring company;       (d) the date from which the holding of such shares entitles the holders to participate in profits and any special conditions affecting that entitlement;       (e) the date from which the transactions of the company being acquired shall be treated for accounting purposes as being those of the acquiring company;       (f) the rights conferred by the acquiring company on the holders of shares to which special rights are attached and the holders of securities other than shares, or the measures proposed concerning them;       (g) any special advantage granted to the experts referred to in Article 10 (1) and members of the merging companies' administrative, management, supervisory or controlling bodies.          Article 6 Draft terms of merger must be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC, for each of the merging companies, at least one month before the date fixed for the general meeting which is to decide thereon.   Article 7 1. A merger shall require at least the approval of the general meeting of each of the merging companies. The laws of the Member States shall provide that this decision shall require a majority of not less than two thirds of the votes attaching either to the shares or to the subscribed capital represented.  The laws of a Member State may, however, provide that a simple majority of the votes specified in the first subparagraph shall be sufficient when at least half of the subscribed capital is represented. Moreover, where appropriate, the rules governing alterations to the memorandum and articles of association shall apply.  2. Where there is more than one class of shares, the decision concerning a merger shall be subject to a separate vote by at least each class of shareholders whose rights are affected by the transaction.  3. The decision shall cover both the approval of the draft terms of merger and any alterations to the memorandum and articles of association necessitated by the merger.   Article 8 The laws of a Member State need not require approval of the merger by the general meeting of the acquiring company if the following conditions are fulfilled:    (a) the publication provided for in Article 6 must be effected, for the acquiring company, at least one month before the date fixed for the general meeting of the company or companies being acquired which are to decide on the draft terms of merger;       (b) at least one month before the date specified in (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in Article 11 (1) at the registered office of the acquiring company;       (c) one or more shareholders of the acquiring company holding a minimum percentage of the subscribed capital must be entitled to require that a general meeting of the acquiring company be called to decide whether to approve the merger. This minimum percentage may not be fixed at more than 5 %. The Member States may, however, provide for the exclusion of non-voting shares from this calculation.          Article 9 The administration or management bodies of each of the merging companies shall draw up a detailed written report explaining the draft terms of merger and setting out the legal and economic grounds for them, in particular the share exchange ratio.  The report shall also describe any special valuation difficulties which have arisen.   Article 10 1. One or more experts, acting on behalf of each of the merging companies but independent of them, appointed or approved by a judicial or administrative authority, shall examine the draft terms of merger and draw up a written report to the shareholders. However,  the laws of a Member State may provide for the appointment of one or more independent experts for all the merging companies, if such appointment is made by a judicial or administrative authority at the joint request of those companies. Such experts may, depending on the laws of each Member State, be natural or legal persons or companies or firms.  2. In the report mentioned in paragraph 1 the experts must in any case state whether in their opinion the share exchange ratio is fair and reasonable. Their statement must at least:    (a) indicate the method or methods used to arrive at the share exchange ratio proposed;       (b) state whether such method or methods are adequate in the case in question, indicate the values arrived at using each such method and give an opinion on the relative importance attributed to such methods in arriving at the value decided on.  The report shall also describe any special valuation difficulties which have arisen.  3. Each expert shall be entitled to obtain from the merging companies all relevant information and documents and to carry out all necessary investigations.   Article 11 1. All shareholders shall be entitled to inspect at least the following documents at the registered office at least one month before the date fixed for the general meeting which is to decide on the draft terms of merger:    (a) the draft terms of merger;       (b) the annual accounts and annual reports of the merging companies for the preceding three financial years;       (c) an accounting statement drawn up as at a date which must not be earlier than the first day of the third month preceding the date of the draft terms of merger, if the latest annual accounts relate to a financial year which ended more than six months before that date;       (d) the reports of the administrative or management bodies of the merging companies provided for in Article 9;       (e) the reports provided for in Article 10.         2. The accounting statement provided for in paragraph 1 (c) shall be drawn up using the same methods and the same layout as the last annual balance sheet.  However, the laws of a Member State may provide that:    (a) it shall not be necessary to take a fresh physical inventory;       (b) the valuations shown in the last balance sheet shall be altered only to reflect entries in the books of account ; the following shall nevertheless be taken into account:      - interim depreciation and provisions,           - material changes in actual value not shown in the books.                    3. Every shareholder shall be entitled to obtain, on request and free of charge, full or, if so desired, partial copies of the documents referred to in paragraph 1.   Article 12 Protection of the rights of the employees of each of the merging companies shall be regulated in accordance with Directive 77/187/EEC.   Article 13 1. The laws of the Member States must provide for an adequate system of protection of the interests of creditors of the merging companies whose claims antedate the publication of the draft terms of merger and have not fallen due at the time of such publication.  2. To this end, the laws of the Member States shall at least provide that such creditors shall be entitled to obtain adequate safeguards where the financial situation of the merging companies makes such protection necessary and where those creditors do not already have such safeguards.  3. Such protection may be different for the creditors of the acquiring company and for those of the company being acquired.   Article 14 Without prejudice to the rules governing the collective exercise of their rights, Article 13 shall apply to the debenture holders of the merging companies, except where the merger has been approved by a meeting of the debenture holders, if such a meeting is provided for under national laws, or by the debenture holders individually.   Article 15 Holders of securities, other than shares, to which special rights are attached, must be given rights in the acquiring company at least equivalent to those they possessed in the company being acquired, unless the alteration of those rights has been approved by a meeting of the holders of such securities, if such a meeting is provided for under national laws, or by the holders of those securities individually, or unless the holders are entitled to have their securities repurchased by the acquiring company.    Article 16 1. Where the laws of a Member State do not provide for judicial or administrative preventive supervision of the legality of mergers, or where such supervision does not extend to all the legal acts required for a merger, the minutes of the general meetings which decide on the merger and, where appropriate, the merger contract subsequent to such general meetings shall be drawn up and certified in due legal form. In cases where the merger need not be approved by the general meetings of all the merging companies, the draft terms of merger must be drawn up and certified in due legal form.  2. The notary or the authority competent to draw up and certify the document in due legal form must check and certify the existence and validity of the legal acts and formalities required of the company for which he or it is acting and of the draft terms of merger.   Article 17 The laws of the Member States shall determine the date on which a merger takes effect.   Article 18 1. A merger must be publicized in the manner prescribed by the laws of each Member State, in accordance with Article 3 of Directive 68/151/EEC, in respect of each of the merging companies.  2. The acquiring company may itself carry out the publication formalities relating to the company or companies being acquired.   Article 19 1. A merger shall have the following consequences ipso jure and simultaneously:    (a) the transfer, both as between the company being acquired and the acquiring company and as regards third parties, to the acquiring company of all the assets and liabilities of the company being acquired;       (b) the shareholders of the company being acquired become shareholders of the acquiring company;       (c) the company being acquired ceases to exist.         2. No shares in the acquiring company shall be exchanged for shares in the company being acquired held either:    (a) by the acquiring company itself or through a person acting in his own name but on its behalf;  or       (b) by the company being acquired itself or through a person acting in his own name but on its behalf.         3. The foregoing shall not affect the laws of Member States which require the completion of special formalities for the transfer of certain assets, rights and obligations by the acquired company to be effective as against third parties. The acquiring company may carry out these formalities itself ; however, the laws of the Member States may permit the company being acquired to continue to carry out these formalities for a limited period which cannot, save in exceptional cases, be fixed at more than six months from the date on which the merger takes effect.   Article 20 The laws of the Member States shall at least lay down rules governing the civil liability towards the shareholders of the company being acquired of the members of the administrative or management bodies of that company in respect of misconduct on the part of members of those bodies in preparing and implementing the merger.   Article 21 The laws of the Member States shall at least lay down rules governing the civil liability towards the shareholders of the company being acquired of the experts responsible for drawing up on behalf of that company the report referred to in Article 10 (1) in respect of misconduct on the part of those experts in the performance of their duties.   Article 22 1. The laws of the Member States may lay down nullity rules for mergers in accordance with the following conditions only:    (a) nullity must be ordered in a court judgment;       (b) mergers which have taken effect pursuant to Article 17 may be declared void only if there has been no judicial or administrative preventive supervision of their legality, or if they have not been drawn up and certified in due legal form, or if it is shown that the decision of the general meeting is void or voidable under national law;       (c) nullification proceedings may not be initiated more than six months after the date on which the merger becomes effective as against the person alleging nullity or if the situation has been rectified;        (d) where it is possible to remedy a defect liable to render a merger void, the competent court shall grant the companies involved a period of time within which to rectify the situation;       (e) a judgment declaring a merger void shall be published in the manner prescribed by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC;       (f) where the laws of a Member State permit a third party to challenge such a judgment, he may do so only within six months of publication of the judgment in the manner prescribed by Directive 68/151/EEC;       (g) a judgment declaring a merger void shall not of itself affect the validity of obligations owed by or in relation to the acquiring company which arose before the judgment was published and after the date referred to in Article 17;       (h) companies which have been parties to a merger shall be jointly and severally liable in respect of the obligations of the acquiring company referred to in (g).         2. By way of derogation from paragraph 1 (a), the laws of a Member State may also provide for the nullity of a merger to be ordered by an administrative authority if an appeal against such a decision lies to a court. Subparagraphs (b), (d), (e), (f), (g) and (h) shall apply by analogy to the administrative authority. Such nullification proceedings may not be initiated more than six months after the date referred to in Article 17.  3. The foregoing shall not affect the laws of the Member States on the nullity of a merger pronounced following any supervision other than judicial or administrative preventive supervision of legality.   CHAPTER III Merger by formation of a new company  Article 23 1. Articles 5, 6, 7 and 9 to 22 shall apply, without prejudice to Articles 11 and 12 of Directive 68/151/EEC, to merger by formation of a new company. For this purpose, "merging companies" and "company being acquired" shall mean the companies which will cease to exist, and "acquiring company" shall mean the new company.  2. Article 5 (2) (a) shall also apply to the new company.  3. The draft terms of merger and, if they are contained in a separate document, the memorandum or draft memorandum of association and the articles or draft articles of association of the new company shall be approved at a general meeting of each of the companies that will cease to exist.  4. The Member States need not apply to the formation of a new company the rules governing the verification of any consideration other than cash which are laid down in Article 10 of Directive 77/91/EEC.   CHAPTER IV Acquisition of one company by another which holds 90 % or more of its shares  Article 24 The Member States shall make provision, in respect of companies governed by their laws, for the operation whereby one or more companies are wound up without going into liquidation and transfer all their assets and liabilities to another company which is the holder of all their shares and other securities conferring the right to vote at general meetings. Such operations shall be regulated by the provisions of Chapter II, with the exception of Articles 5 (2) (b), (c) and (d), 9, 10, 11 (1) (d) and (e), 19 (1) (b), 20 and 21.   Article 25 The Member States need not apply Article 7 to the operations specified in Article 24 if the following conditions at least are fulfilled:    (a) the publication provided for in Article 6 must be effected, as regards each company involved in the operation, at least one month before the operation takes effect;       (b) at least one month before the operation takes effect, all shareholders of the acquiring company must be entitled to inspect the documents specified in Article 11 (1) (a), (b) and (c) at the company's registered office. Article 11 (2) and (3) must apply;       (c) Article 8 (c) must apply.          Article 26 The Member States may apply Articles 24 and 25 to operations whereby one or more companies are wound up without going into liquidation and transfer all their assets and liabilities to another company, if  all the shares and other securities specified in Article 24 of the company or companies being acquired are held by the acquiring company and/or by persons holding those shares and securities in their own names but on behalf of that company.   Article 27 In cases of merger where one or more companies are acquired by another company which holds 90 % or more, but not all, of the shares and other securities of each of those companies the holding of which confers the right to vote at general meetings, the Member States need not require approval of the merger by the general meeting of the acquiring company, provided that the following conditions at least are fulfilled:    (a) the publication provided for in Article 6 must be effected, as regards the acquiring company, at least one month before the date fixed for the general meeting of the company or companies being acquired which is to decide on the draft terms of merger;       (b) at least one month before the date specified in (a), all shareholders of the acquiring company must be entitled to inspect the documents specified in Article 11 (1) (a), (b) and (c) at the company's registered office. Article 11 (2) and (3) must apply;       (c) Article 8 (c) must apply.          Article 28 The Member States need not apply Articles 9 to 11 to a merger within the meaning of Article 27 if the following conditions at least are fulfilled:    (a) the minority shareholders of the company being acquired must be entitled to have their shares acquired by the acquiring company;       (b) if they exercise that right, they must be entitled to receive consideration corresponding to the value of their shares;       (c) in the event of disagreement regarding such consideration, it must be possible for the value of the consideration to be determined by a court.          Article 29 The Member States may apply Articles 27 and 28 to operations whereby one or more companies are wound up without going into liquidation and transfer all their assets and liabilities to another company if 90 % or more, but not all, of the shares and other securities referred to in Article 27 of the company or companies being acquired are held by that acquiring company and/or by persons holding those shares and securities in their own names but on behalf of that company.   CHAPTER V Other operations treated as mergers  Article 30 Where in the case of one of the operations referred to in Article 2 the laws of a Member State permit a cash payment to exceed 10 %, Chapters II and III and Articles 27, 28 and 29 shall apply.   Article 31 Where the laws of a Member State permit one of the operations referred to in Articles 2, 24 and 30, without all of the transferring companies thereby ceasing to exist, Chapter II, except for Article 19 (1) (c), Chapter III or Chapter IV shall apply as appropriate.   CHAPTER VI Final provisions  Article 32 1. The Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive within three years of its notification. They shall forthwith inform the Commission thereof.  2. However, provision may be made for a delay of five years from the entry into force of the provisions referred to in paragraph 1 for the application of those provisions to unregistered companies in the United Kingdom and Ireland.  3. The Member States need not apply Articles 13, 14 and 15 as regards the holders of convertible debentures and other convertible securities if, at the time when the laws, regulations and administrative provisions referred to in paragraph 1 come into force, the position of these holders in the event of a merger has previously been determined by the conditions of issue.  4. The Member States need not apply this Directive to mergers or to operations treated as mergers for the preparation or execution of which an act or formality  required by national law has already been completed when the provisions referred to in paragraph 1 enter into force.   Article 33 This Directive is addressed to the Member States.     Done at Luxembourg, 9 October 1978.  For the Council  The President  H.-J. VOGEL


Avis juridique important

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31984L0500

Council Directive 84/500/EEC of 15 October 1984 on the approximation of the laws of the Member States relating to ceramic articles intended to come into contact with foodstuffs

Official Journal L 277 , 20/10/1984 P. 0012 - 0016 Finnish special edition: Chapter 13 Volume 13 P. 0207  Spanish special edition: Chapter 13 Volume 18 P. 0006  Swedish special edition: Chapter 13 Volume 13 P. 0207  Portuguese special edition Chapter 13 Volume 18 P. 0006

*****COUNCIL  DIRECTIVE  of 15 October 1984  on the approximation of the laws of the Member States relating to ceramic articles intended to come into contact with foodstuffs  (84/500/EEC)  THE COUNCIL OF THE EUROPEAN  COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 76/893/EEC of 23 November 1976 on the approximation of the laws of the Member States relating to materials and articles intended to come into contact with foodstuffs (1), and in particular Article 3 thereof,  Having regard to the proposal from the Commission,  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas Article 2 of Directive 76/893/EEC provides that materials and articles must not transfer their constituents to foodstuffs in quantities which could endanger human health;  Whereas Article 3 of the same Directive provides that the Council, under the procedure provided for in Article 100 of the Treaty, shall adopt by means of Directives special provisions applicable to certain groups of materials and articles (specific Directives);  Whereas in most of the Member States ceramic articles intended to come into contact with foodstuffs are subject to mandatory provisions for protecting human health which lay down limits for the extractable quantities of lead and cadmium;  Whereas these provisions vary from one Member State to another, thus creating obstacles to the establishment and functioning of the common market;  Whereas these obstacles may be eliminated if the placing of ceramic articles on the Community market is made subject to uniform rules; whereas it is therefore necessary to harmonize the limit values and the test and analysis methods for such articles;  Whereas the appropriate instrument for attaining this objective is a specific Directive within the meaning of Article 3 of Directive 76/893/EEC the general provisions of which also become applicable in this particular case;  Whereas the adaptation to technical progress of certain checking and analysis measures provided for in the Directive is an implementing measure the adoption of which should be entrusted to the Commission in order to simplify and expedite the procedure;  Whereas, in all cases where the Council grants the Commission powers to implement provisions concerning materials and articles intended to come into  contact with foodstuffs, a procedure should be established to ensure close cooperation between the Member States and the Commission in the Standing Committee for Foodstuffs set up by the Council Decision of 13 November 1969,  HAS ADOPTED THIS DIRECTIVE:  Article 1  1. This Directive is a specific Directive within the meaning of Article 3 of Directive 76/893/EEC.  2. This Directive concerns the possible migration of lead and cadmium from ceramic articles which, in their finished state, are intended to come into contact with foodstuffs, or which are in contact with foodstuffs, and are intended for that purpose.  3. 'Ceramic articles' means articles manufactured from a mixture of inorganic materials with a generally high argillaceous or silicate content to which small quantities of organic materials may have been added. These articles are first shaped and the shape thus obtained is permanently fixed by firing. They may be glazed, enamelled and/or decorated.  Article 2  1. The quantities of lead and cadmium transferred from ceramic articles shall not exceed the limits laid down below.  2. The quantities of lead and cadmium transferred from ceramic articles shall be determined by means of a test, the conditions of which are specified in Annex I, using the method of analysis described in Annex II.  3. Where a ceramic article consists of a vessel fitted with a ceramic lid, the lead and/or cadmium limit which may not be exceeded (mg/dm2 or mg/litre) shall be that which applies to the vessel alone.  The vessel alone and the inner surface of the lid shall be tested separately and under the same conditions.  The sum of the two lead and/or cadmium extraction levels thus obtained shall be related as appropriate to the surface area or the volume of the vessel alone.  4. A ceramic article shall be recognized as satisfying the requirements of this Directive if the quantities of lead and/or cadmium extracted during the test carried out under the conditions laid down in Annexes I and II do not exceed the following limits:  1.2.3 //   // Pb  // Cd  // - Category 1:  //   //  // Articles which cannot be filled and articles which can be filled, the internal depth of which, measured from the lowest point to the horizontal plane passing through the upper rim, does not exceed 25 mm  // 0,8 mg/dm2  // 0,07 mg/dm2  // - Category 2:  //   //   // All other articles which can be filled  // 4,0 mg/l  // 0,3 mg/l  // - Category 3:  //   //  // Cooking ware; packaging and storage vessels having a capacity of more than three litres  // 1,5 mg/l  // 0,1 mg/l  5. However, where a ceramic article does not exceed the above quantities by more than 50 %, that article shall nevertheless be recognized as satisfying the requirements of this Directive if at least three other articles with the same shape, dimensions, decoration and glaze are subjected to a test carried out under the conditions laid down in Annexes I and II and the average quantities of lead and/or cadmium extracted from those articles do not exceed the limits set, with none of those articles exceeding those limits by more than 50 %.  Article 3  The amendments to be made to the Annexes in the light of developments in scientific and technical knowledge, with the exception of sections 1 and 2 of Annex I, shall be adopted in accordance with the procedure laid down in Article 10 of Directive 76/893/EEC.  Article 4  1. Within three years of notification (1) of this Directive, the Council shall determine in accordance with the procedure laid down in Article 100 of the Treaty:  (a) the limitations to be imposed on those areas of ceramic articles with which the mouth is intended to come into contact;  (b) the methods for checking that the limitations provided for in (a) are complied with.  2. Within the same period, the Commission shall, on the basis of toxicological and technological data, re-examine the limits laid down in Article 2, with a view to reducing them, and the lighting conditions for the test specified in Annex I, and shall, if appropriate, submit to the Council proposals for amendments to the Directive.  Article 5  1. The Member States shall, if necessary, amend their national laws to comply with this Directive so that:  - three years after the notification of this Directive, trade in ceramic articles which comply with its provisions is permitted,  - five years after the notification of this Directive, the placing on the market of ceramic articles which do not comply with its provisions is prohibited.  They shall forthwith inform the Commission of any such amendment.  2. Without prejudice to paragraph 1, Member States may prohibit or continue to prohibit the manufacture of ceramic articles which do not comply with this Directive.  Article 6  This Directive is addressed to the Member States.  Done at Luxembourg, 15 October 1984.  For the Council  The President  J. BRUTON  (1) OJ No L 340, 9. 12. 1976, p. 19.  (2) OJ No C 95, 28. 4. 1975, p. 41.  (3) OJ No C 263, 17. 11. 1975, p. 66.  (1) This Directive was notified to the Member States on 17 October 1984.  ANNEX  I  BASIC RULES FOR DETERMINING THE MIGRATION OF LEAD AND CADMIUM  1. Test liquid ('simulant')  4 % (v/v) acetic acid, in a freshly prepared aqueous solution.  2. Test conditions  2.1. Carry out the test at a temperature of 22 ± 2 °C for a duration of 24 ± 0,5 hours.  2.2. When the migration of lead is to be determined, cover the sample by an appropriate means of protection and expose it to the usual lighting conditions in a laboratory.  When the migration of cadmium or of lead and cadmium is to be determined, cover the sample so as to ensure that the surface to be tested is kept in total darkness.  3. Filling  3.1. Samples which can be filled  Fill the article with a 4 % (v/v) acetic acid solution to a level no more than 1 mm from the overflow point; the distance is measured from the upper rim of the sample.  Samples with a flat or slightly sloping rim should be filled so that the distance between the surface of the liquid and the overflow point is no more than 6 mm measured along the sloping rim.  3.2. Samples which cannot be filled  The surface of the sample which is not intended to come into contact with foodstuffs is first covered with a suitable protective layer able to resist the action of the 4 % (v/v) acetic acid solution. The sample is then immersed in a recipient containing a known volume of acetic acid solution in such a way that the surface intended to come into contact with foodstuffs is completely covered by the test liquid.  4. Determination of the surface area  The surface area of the articles in category 1 is equal to the surface area of the meniscus formed by the free liquid surface obtained by complying with the filling requirements set out in section 3 above.  ANNEX  II  METHODS OF ANALYSIS FOR DETERMINING THE MIGRATION OF LEAD AND CADMIUM  1. Object and field of application  The method allows the specific migration of lead and/or cadmium to be determined.  2. Principle  The determination of the specific migration of lead and/or cadmium is carried out by atomic absorption spectrophotometry.  3. Reagents  - All reagents must be of analytical quality, unless otherwise specified.  - Where reference is made to water, this always means distilled water or water of equivalent quality.  3.1. 4 % (v/v) acetic acid, in aqueous solution  Add 40 ml of glacial acetic acid to water and make up to 1 000 ml.  3.2. Stock solutions  Prepare stock solutions containing 1 000 mg/litre of lead and at least 500 mg/litre of cadmium respectively in a 4 % acetic acid solution (3.1).  4. Instruments  4.1. Atomic absorption spectrophotometer  The instrument's detection limit for lead and cadmium must be equal to or lower than:  - 0,1 mg/litre for lead,  - 0,01 mg/litre for cadmium.  The detection limit is defined as the concentration of the element in 4 % acetic acid (3.1) which gives a signal equal to twice the background noise of the instrument.  5. Method  5.1. Preparation of the sample  The sample must be clean and free from grease or other matter likely to affect the test.  Wash the sample in a solution containing a household liquid detergent at a temperature of approximately 40 °C. Rinse the sample first in tapwater and then in distilled water or water of equivalent quality. Drain and dry so as to avoid any stain. The surface to be tested should not be handled after it has been cleaned.  5.2. Determination of lead and/or cadmium  - The sample thus prepared is tested under the conditions laid down in Annex I.  - Before taking the test solution for determining lead and/or cadmium, homogenize the content of the sample by an appropriate method which avoids any loss of solution or abrasion of the surface being tested.  - Carry out a blank test on the reagent used for each series of determinations.  - Carry out determinations for lead and/or cadmium under appropriate conditions by atomic absorption spectrophotometry.


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31974L0062

Council Directive 74/62/EEC of 17 December 1973 making a ninth amendment to the Directive on the approximation of the laws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption

Official Journal L 038 , 11/02/1974 P. 0029 - 0030 Finnish special edition: Chapter 13 Volume 3 P. 0213  Greek special edition: Chapter 03 Volume 10 P. 0134  Swedish special edition: Chapter 13 Volume 3 P. 0213  Spanish special edition: Chapter 13 Volume 3 P. 0169  Portuguese special edition Chapter 13 Volume 3 P. 0169

COUNCIL DIRECTIVE  of 17 December 1973  making a ninth amendment to the Directive on the approximation of the laws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption  (74/62/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof;  Having regard to the Opinion of the European Parliament;  Having regard to the Opinion of the Economic and Social Committee;  Whereas the Council Directive of 5 November 1963 on the approximation of the laws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption (1), as last amended by the Council Directive of 26 December 1972 (2), fixed in particular the list of preservatives authorized for the protection of foodstuffs intended for human consumption against deterioration caused by microorganisms;  Whereas the use of formic acid and of sodium salts and calcium salts proves to be necessary for the preservation of certain foodstuffs and whereas it is nevertheless not possible at the moment to adopt an exhaustive list of these foodstuffs for the entire Community;  Whereas the use of small quantities of hexamethylenetetramine in the production of "Provolone" cheese makes it possible to prevent tympanites;  Whereas the acceptable daily intake of hexamethylenetetramine is considerably higher than the quantities which would result from this use, and whereas health protection is thus ensured;  Whereas the recent results of toxicological research show that hexamethylenetetramine could be used to a greater extent than at present provided for, and other uses which are already permitted under national legislation may therefore be maintained;  Whereas the laws of certain Member States still authorize the use of boric acid and sodium tetraborate (borax) in caviar (sturgeon eggs) and egg products and also of formaldehyde in "Grana padano" cheese under certain conditions, and whereas such laws are based on particular circumstances and a transitional period should be provided for so that the necessary adjustments may be made;  Whereas the authorization of the use of preservatives thus provided for does not affect the right of Member States to lay down particular requirements for the labelling of foodstuffs containing the said substances,  HAS ADOPTED THIS DIRECTIVE:    Article 1 1. The following shall be substituted of Article 5:  "1. Notwithstanding Article 2 (1), and Member States may authorize the use of hexamethylenetetramine    (a) in semi-preserved fish and fishery products whose pH is more than 4 75, provided that, when the product is marketed, the level of this substance does not exceed 50 mg/kg;       (b) in caviar (sturgeon eggs) and other fish eggs, not smoked, provided that, when the product is marketed, the level of this substance does not exceed 1 g/kg.         2. Until 31 December 1977 and notwithstanding Article 1,    (a) Member States may authorize the use of boric acid and sodium tetraborate (borax) in caviar (sturgeon eggs) provided that, when the product is marketed, the level of these substances, expressed as boric acid, does not exceed 4 g/kg of caviar;       (b) Member States may maintain the provisions of their national laws relating to the use of     - boric acid in egg products;       - formaldehyde in "Grana padano" cheese provided that, when the product is marketed, no residue of this substance is detectable in the finished product."  (1)OJ No 12, 27.1.1964, p. 161/64. (2)OJ No L 298, 31.12.1972, p. 48.         2. The following shall be added to Section I of the Annex: >PIC FILE= "T0005470">    Article 2 The Member States shall take the measures necessary to comply with this Directive not later than 1 January 1974 and shall forthwith inform the Commission thereof.   Article 3 This Directive is addressed to the Member States.     Done at Brussels, 17 December 1973.  For the Council  The President  I. NØRGAARD


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31998L0078

Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group

Official Journal L 330 , 05/12/1998 P. 0001 - 0012

DIRECTIVE 98/78/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 57(2) thereof,Having regard to the proposal from the Commission (1),Having regard to the opinion of the Economic and Social Committee (2),Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),(1) Whereas the first Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance (4) and the first Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance (5) require insurance undertakings to have solvency margins;(2) Whereas, under 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 and amending Directives 73/239/EEC and 88/357/EEC (6) and Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (7) the taking up and the pursuit of the business of insurance are subject to the granting of a single official authorisation issued by the authorities of the Member State in which an insurance undertaking has its registered office (home Member State); whereas such authorisation allows an undertaking to carry on business throughout the Community, under either the right of establishment or the freedom to provide services; whereas the competent authorities of home Member States are responsible for monitoring the financial health of insurance undertakings, including their solvency;(3) Whereas measures concerning the supplementary supervision of insurance undertakings in an insurance group should enable the authorities supervising an insurance undertaking to form a more soundly based judgment of its financial situation; whereas such supplementary supervision should take into account certain undertakings which are not at present subject to supervision under Community Directives; whereas this Directive does not in any way imply that Member States are required to undertake supervision of those undertakings considered individually;(4) Whereas insurance undertakings in a common insurance market engage in direct competition with each other and the rules concerning capital requirements must therefore be equivalent; whereas, to that end, the criteria applied to determine supplementary supervision must not be left solely to the discretion of Member States; whereas the adoption of common basic rules will be in the best interests of the Community in that it will prevent distortions of competition; whereas it is necessary to eliminate certain divergences between the laws of the Member States as regards the prudential rules to which insurance undertakings that are part of an insurance group are subject;(5) Whereas the approach adopted consists in bringing about such harmonisation as is essential, necessary and sufficient to achieve the mutual recognition of prudential control systems in this field; whereas the aim of this Directive is in particular to protect the interests of insured persons;(6) Whereas certain provisions of this Directive define minimum standards; whereas a home Member State may lay down stricter rules for insurance undertakings authorised by its own competent authorities;(7) Whereas this Directive provides for the supplementary supervision of any insurance company which is a participating undertaking in at least one insurance undertaking, reinsurance undertaking or non-member-country insurance undertaking and, under different rules, for the supplementary supervision of any insurance company whose parent undertaking is an insurance holding company, a reinsurance undertaking, a non-member-country insurance undertaking or a mixed-activity insurance holding company; whereas the supervision of individual insurance undertakings by the competent authorities remains the essential principle of insurance supervision;(8) Whereas it is necessary to calculate an adjusted solvency situation for insurance undertakings forming part of an insurance group; whereas different methods are applied by the competent authorities in the Community to take into account the effects on the financial situation of an insurance undertaking attributable to the fact that it belongs to an insurance group; whereas this Directive lays down three methods to effect that calculation; whereas the principle is accepted that these methods are prudentially equivalent;(9) Whereas the solvency of a related subsidiary insurance undertaking of an insurance holding company, reinsurance undertaking or non-member-country insurance undertaking may be affected by the financial resources of the group of which it is a part and by the distribution of financial resources within that group; whereas the competent authorities should be provided with the means of exercising supplementary supervision and of taking appropriate measures at the level of the insurance undertaking where its solvency is or may be jeopardised;(10) Whereas the competent authorities should have access to all the information relevant to the exercise of supplementary supervision; whereas cooperation between the authorities responsible for the supervision of insurance undertakings as well as between those authorities and the authorities responsible for the supervision of other financial sectors should be established;(11) Whereas intra-group transactions can affect the financial position of an insurance undertaking; whereas the competent authorities should be in a position to exercise general supervision over certain types of such intra-group operations and take appropriate measures at the level of the insurance undertaking where its solvency is or may be jeopardised,HAVE ADOPTED THIS DIRECTIVE:Article 1 Definitions For the purposes of this Directive:(a) insurance undertaking means an undertaking which has received official authorisation in accordance with Article 6 of Directive 73/239/EEC or Article 6 of Directive 79/267/EEC;(b) non-member-country insurance undertaking means an undertaking which would require authorisation in accordance with Article 6 of Directive 73/239/EEC or Article 6 of Directive 79/267/EEC if it had its registered office in the Community;(c) reinsurance undertaking means an undertaking, other than an insurance undertaking or a non-member-country insurance undertaking, the main business of which consists in accepting risks ceded by an insurance undertaking, a non-member-country insurance undertaking or other reinsurance undertakings;(d) parent undertaking means a parent undertaking within the meaning of Article 1 of Directive 83/349/EEC (8) and any undertaking which, in the opinion of the competent authorities, effectively exercises a dominant influence over another undertaking;(e) subsidiary undertaking means a subsidiary undertaking within the meaning of Article 1 of Directive 83/349/EEC and any undertaking over which, in the opinion of the competent authorities, a parent undertaking effectively exercises a dominant influence. All subsidiaries of subsidiary undertakings shall also be considered subsidiaries of the parent undertaking which is at the head of those undertakings;(f) participation means participation within the meaning of Article 17, first sentence, of Directive 78/660/EEC (9) or the holding, directly or indirectly, of 20 % or more of the voting rights or capital of an undertaking;(g) participating undertaking means an undertaking which is either a parent undertaking or another undertaking which holds a participation;(h) related undertaking means either a subsidiary or other undertaking in which a participation is held;(i) insurance holding company means a parent undertaking the main business of which is to acquire and hold participations in subsidiary undertakings, where those subsidiary undertakings are exclusively or mainly insurance undertakings, reinsurance undertakings or non-member-country insurance undertakings, one at least of such subsidiary undertakings being an insurance undertaking;(j) mixed-activity insurance holding company means a parent undertaking, other than an insurance undertaking, a non-member-country insurance undertaking, a reinsurance undertaking or an insurance holding company, which includes at least one insurance undertaking among its subsidiary undertakings;(k) competent authorities means the national authorities which are empowered by law or regulation to supervise insurance undertakings.Article 2 Cases of application of supplementary supervision of insurance undertakings 1. In addition to the provisions of Directives 73/239/EEC and 79/267/EEC which lay down the rules for the supervision of insurance undertakings, Member States shall provide supervision of any insurance undertaking which is a participating undertaking in at least one insurance undertaking, reinsurance undertaking, or non-member-country insurance undertaking shall be supplemented in the manner prescribed in Articles 5, 6, 8 and 9.2. Every insurance undertaking the parent undertaking of which is an insurance holding company, a reinsurance undertaking or a non-member-country insurance undertaking shall be subject to supplementary supervision in the manner prescribed in Articles 5(2), 6, 8 and 10.3. Every insurance undertaking the parent undertaking of which is a mixed-activity insurance holding company shall be subject to supplementary supervision in the manner prescribed in Articles 5(2), 6 and 8.Article 3 Scope of supplementary supervision 1. The exercise of supplementary supervision in accordance with Article 2 shall in no way imply that the competent authorities are required to play a supervisory role in relation to the non-member-country insurance undertaking, insurance holding company or mixed-activity insurance holding company or reinsurance undertaking taken individually.2. The supplementary supervision shall take into account:- related undertakings of the insurance undertaking,- participating undertakings in the insurance undertaking,- related undertakings of a participating undertaking in the insurance undertaking,referred to in Articles 5, 6, 8, 9 and 10.3. Member States may decide not to take into account in the supplementary supervision referred to in Article 2 undertakings having their registered office in a non-member country where there are legal impediments to the transfer of the necessary information, without prejudice to the provisions of Annex I, point 2.5, and of Annex II, point 4.Furthermore, the competent authorities responsible for exercising supplementary supervision may in the cases listed below decide on a case-by-case basis not to take an undertaking into account in the supplementary supervision referred to in Article 2:- if the undertaking which should be included is of negligible interest with respect to the objectives of the supplementary supervision of insurance undertakings,- if the inclusion of the financial situation of the undertaking would be inappropriate or misleading with respect to the objectives of the supplementary supervision of insurance undertakings.Article 4 Competent authorities for exercising supplementary supervision 1. Supplementary supervision shall be exercised by the competent authorities of the Member State in which the insurance undertaking has received official authorisation under Article 6 of Directive 73/239/EEC or Article 6 of Directive 79/267/EEC.2. Where insurance undertakings authorised in two or more Member States have as their parent undertaking the same insurance holding company, reinsurance undertaking, non-member-country insurance undertaking or mixed-activity insurance holding company, the competent authorities of the Member States concerned may reach agreement as to which of them will be responsible for exercising supplementary supervision.3. Where a Member State has more than one competent authority for the prudential supervision of insurance undertakings and reinsurance undertakings, such Member State shall take the requisite measures to organise coordination between those authorities.Article 5 Availability and quality of information 1. Member States shall prescribe that the competent authorities shall require that every insurance undertaking subject to supplementary supervision shall have adequate internal control mechanisms in place for the production of any data and information relevant for the purposes of such supplementary supervision.2. Member States shall take the appropriate steps to ensure that there are no legal impediments within their jurisdiction preventing the undertakings that are subject to the supplementary supervision and their related undertakings and participating undertakings from exchanging among themselves any information relevant for the purposes of such supplementary supervision.Article 6 Access to information 1. Member States shall provide that their competent authorities responsible for exercising supplementary supervision shall have access to any information which would be relevant for the purpose of supervision of an insurance undertaking subject to such supplementary supervision. The competent authorities may address themselves directly to the relevant undertakings referred to in Article 3(2) to obtain the necessary information only if such information has been requested from the insurance undertaking and has not been supplied by it.2. Member States shall provide that their competent authorities may carry out within their territory, themselves or through the intermediary of persons whom they appoint for that purpose, on-the-spot verification of the information referred to in paragraph 1 at:- the insurance undertaking subject to supplementary supervision,- subsidiary undertakings of that insurance undertaking,- parent undertakings of that insurance undertaking,- subsidiary undertakings of a parent undertaking of that insurance undertaking.3. Where, in applying this Article, the competent authorities of one Member State wish in specific cases to verify important information concerning an undertaking situated in another Member State which is a related insurance undertaking, a subsidiary undertaking, a parent undertaking or a subsidiary of a parent undertaking of the insurance undertaking subject to supplementary supervision, they must ask the competent authorities of that other Member State to have that verification carried out. The authorities which receive such a request must act on it within the limits of their jurisdiction by carrying out the verification themselves, by allowing the authorities making the request to carry it out or by allowing an auditor or expert to carry it out.Article 7 Cooperation between competent authorities 1. Where insurance undertakings established in different Member States are directly or indirectly related or have a common participating undertaking, the competent authorities of each Member State shall communicate to one another on request all relevant information which may allow or facilitate the exercise of supervision pursuant to this Directive and shall communicate on their own initiative any information which appears to them to be essential for the other competent authorities.2. Where an insurance undertaking and either a credit institution as defined in Directive 77/780/EEC (10) or an investment firm as defined in Directive 93/22/EEC (11), or both, are directly or indirectly related or have a common participating undertaking, the competent authorities and the authorities with public responsibility for the supervision of those other undertakings shall cooperate closely. Without prejudice to their respective responsibilities, those authorities shall provide one another with any information likely to simplify their task, in particular within the framework of this Directive.3. Information received pursuant to this Directive and, in particular, any exchange of information between competent authorities which is provided for in this Directive shall be subject to the obligation of professional secrecy defined in Article 16 of Directive 92/49/EEC and Article 15 of Directive 92/96/EEC.Article 8 Intra-group transactions 1. Member States shall provide that the competent authorities exercise general supervision over transactions between:(a) an insurance undertaking and:(i) a related undertaking of the insurance undertaking;(ii) a participating undertaking in the insurance undertaking;(iii) a related undertaking of a participating undertaking in the insurance undertaking;(b) an insurance undertaking and a natural person who holds a participation in:(i) the insurance undertaking or any of its related undertakings;(ii) a participating undertaking in the insurance undertaking;(iii) a related undertaking of a participating undertaking in the insurance undertaking.These transactions concern in particular:- loans,- guarantees and off-balance-sheet transactions,- elements eligible for the solvency margin,- investments,- reinsurance operations,- agreements to share costs.2. To this end, Member States shall require at least annual reporting by the insurance undertakings to the competent authorities of significant transactions as provided for in paragraph 1.If, on the basis of this information, it appears that the solvency of the insurance undertaking is, or may be, jeopardised, the competent authority shall take appropriate measures at the level of the insurance undertaking.Article 9 Adjusted solvency requirement 1. In the case referred to in Article 2(1), Member States shall require that an adjusted solvency calculation be carried out in accordance with Annex I.2. Any related undertaking, participating undertaking or related undertaking of a participating undertaking shall be included in the calculation referred to in paragraph 1.3. If the calculation referred to in paragraph 1 demonstrates that the adjusted solvency is negative, the competent authorities shall take appropriate measures at the level of the insurance undertaking in question.Article 10 Reinsurance undertakings, insurance holding companies and non-member-country insurance undertakings 1. In the case referred to in Article 2(2), Member States shall require the method of supplementary supervision to be applied in accordance with Annex II.2. In the case referred to in Article 2(2), the calculation shall include all related undertakings of the insurance holding company, the reinsurance undertaking or the non-member-country insurance undertaking, in the manner provided for in Annex II.3. If, on the basis of this calculation, the competent authorities conclude that the solvency of a subsidiary insurance undertaking of the insurance holding company, the reinsurance undertaking or the non-member-country insurance undertaking is, or may be, jeopardised, they shall take appropriate measures at the level of that insurance undertaking.Article 11 Implementation 1. Member States shall adopt not later than 5 June 2000 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.2. Member States shall provide that the provisions referred to in paragraph 1 shall first apply to the supervision of accounts for financial years beginning on 1 January 2001 or during that calendar year.3. When Member States adopt the measures referred to in paragraph 1, 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.4. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field covered by this Directive.5. Not later than 1 January 2006 the Commission shall submit to the Insurance Committee a report on the application of this Directive and, if necessary, on the need for further harmonisation.Article 12 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 13 Addressees This Directive is addressed to the Member States.Done at Luxembourg, 27 October 1998.For the European ParliamentThe PresidentJ. M. GIL-ROBLESFor the CouncilThe PresidentE. HOSTASCH(1) OJ C 341, 19.12.1995, p. 16, and OJ C 108, 7.4.1998, p. 48.(2) OJ C 174, 17.6.1996, p. 16.(3) Opinion of the European Parliament of 23 October 1997 (OJ C 339, 10.11.1997, p. 136), Council common position of 30 March 1998 (OJ C 204, 30.6.1998, p. 1), Decision of the European Parliament of 16 September 1998 (OJ C 313, 12.10.1998) and Council Decision of 13 October 1998.(4) OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive 95/26/EC (OJ L 168, 18.7.1995, p. 7).(5) OJ L 63, 13.3.1979, p. 1. Directive as last amended by Directive 95/26/EC.(6) OJ L 228, 11.8.1992, p. 1. Directive as amended by Directive 95/26/EC.(7) OJ L 360, 9.12.1992, p. 1. Directive as amended by Directive 95/26/EC.(8) Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ L 193, 18.7.1983, p. 1). Directive as last amended by the 1994 Act of Accession.(9) Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ L 222, 14.8.1978, p. 11). Directive as last amended by the 1994 Act of Accession.(10) First Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ L 322, 17.12.1977, p. 30). Directive as last amended by Directive 96/13/EC (OJ L 66, 16.3.1996, p. 15).(11) Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ L 141, 11.6.1993, p. 27). Directive as last amended by Directive 97/9/EC (OJ L 84, 26.3.1997, p. 22).ANNEX I CALCULATION OF THE ADJUSTED SOLVENCY OF INSURANCE UNDERTAKINGS 1. CHOICE OF CALCULATION METHOD AND GENERAL PRINCIPLES A. Member States shall provide that the calculation of the adjusted solvency of insurance undertakings referred to in Article 2(1) shall be carried out according to one of the methods described in point 3. A Member State may, however, provide for the competent authorities to authorise or impose the application of a method set out in point 3 other than that chosen by the Member State.B. ProportionalityThe calculation of the adjusted solvency of an insurance undertaking shall take account of the proportional share held by the participating undertaking in its related undertakings.'Proportional share` means either, where method 1 or method 2 described in point 3 is used, the proportion of the subscribed capital that is held, directly or indirectly, by the participating undertaking or, where method 3 described in point 3 is used, the percentages used for the establishment of the consolidated accounts.However, whichever method is used, when the related undertaking is a subsidiary undertaking and has a solvency deficit, the total solvency deficit of the subsidiary has to be taken into account.However, where, in the opinion of the competent authorities, the responsibility of the parent undertaking owning a share of the capital is limited strictly and unambiguously to that share of the capital, such competent authorities may give permission for the solvency deficit of the subsidiary undertaking to be taken into account on a proportional basis.C. Elimination of double use of solvency margin elementsC.1. General treatment of solvency margin elementsRegardless of the method used for the calculation of the adjusted solvency of an insurance undertaking, the double use of elements eligible for the solvency margin among the different insurance undertakings taken into account in that calculation must be eliminated.For this purpose, when calculating the adjusted solvency of an insurance undertaking and where the methods described in point 3 do not provide for it, the following amounts shall be eliminated:- the value of any asset of that insurance undertaking which represents the financing of elements eligible for the solvency margin of one of its related insurance undertakings,- the value of any asset of a related insurance undertaking of that insurance undertaking which represents the financing of elements eligible for the solvency margin of that insurance undertaking,- the value of any asset of a related insurance undertaking of that insurance undertaking which represents the financing of elements eligible for the solvency margin of any other related insurance undertaking of that insurance undertaking.C.2. Treatment of certain elementsWithout prejudice to the provisions of section C.1:- profit reserves and future profits arising in a related life assurance undertaking of the insurance undertaking for which the adjusted solvency is calculated, and- any subscribed but not paid-up capital of a related insurance undertaking of the insurance undertaking for which the adjusted solvency is calculated,may only be included in the calculation in so far as they are eligible for covering the solvency margin requirement of that related undertaking. However, any subscribed but not paid-up capital which represents a potential obligation on the part of the participating undertaking shall be entirely excluded from the calculation.Any subscribed but not paid-up capital of the participating insurance undertaking which represents a potential obligation on the part of a related insurance undertaking shall also be excluded from the calculation.Any subscribed but not paid-up capital of a related insurance undertaking which represents a potential obligation on the part of another related insurance undertaking of the same participating insurance undertaking shall be excluded from the calculation.C.3. TransferabilityIf the competent authorities consider that certain elements eligible for the solvency margin of a related insurance undertaking other than those referred to in section C.2 cannot effectively be made available to cover the solvency margin requirement of the participating insurance undertaking for which the adjusted solvency is calculated, those elements may be included in the calculation only in so far as they are eligible for covering the solvency margin requirement of the related undertaking.C.4. The sum of the elements referred to in sections C.2 and C.3 may not exceed the solvency margin requirement of the related insurance undertaking.D. Elimination of the intra-group creation of capitalWhen calculating adjusted solvency, no account shall be taken of any element eligible for the solvency margin arising out of reciprocal financing between the insurance undertaking and:- a related undertaking,- a participating undertaking,- another related undertaking of any of its participating undertakings.Furthermore, no account shall be taken of any element eligible for the solvency margin of a related insurance undertaking of the insurance undertaking for which the adjusted solvency is calculated when the element in question arises out of reciprocal financing with any other related undertaking of that insurance undertaking.In particular, reciprocal financing exists when an insurance undertaking, or any of its related undertakings, holds shares in, or makes loans to, another undertaking which, directly or indirectly, holds an element eligible for the solvency margin of the first undertaking.E. The competent authorities shall ensure that the adjusted solvency is calculated with the same frequency as that laid down by Directives 73/239/EEC and 79/267/EEC for calculating the solvency margin of insurance undertakings. The value of the assets and liabilities shall be assessed according to the relevant provisions of Directives 73/239/EEC, 79/267/EEC and 91/674/EEC (1).2. APPLICATION OF THE CALCULATION METHODS 2.1. Related insurance undertakingsThe adjusted solvency calculation shall be carried out in accordance with the general principles and methods set out in this Annex.In the case of all methods, where the insurance undertaking has more than one related insurance undertaking, the adjusted solvency calculation shall be carried out by integrating each of these related insurance undertakings.In cases of successive participations (for example, where an insurance undertaking is a participating undertaking in another insurance undertaking which is also a participating undertaking in an insurance undertaking), the adjusted solvency calculation shall be carried out at the level of each participating insurance undertaking which has at least one related insurance undertaking.Member States may waive calculation of the adjusted solvency of an insurance undertaking:- if the undertaking is a related undertaking of another insurance undertaking authorised in the same Member State, and that related undertaking is taken into account in the calculation of the adjusted solvency of the participating insurance undertaking, or- if the insurance undertaking is a related undertaking either of an insurance holding company or of a reinsurance undertaking which has its registered office in the same Member State as the insurance undertaking, and both the holding insurance company or the reinsurance undertaking and the related insurance undertaking are taken into account in the calculation carried out.Member States may also waive calculation of the adjusted solvency of an insurance undertaking if it is a related insurance undertaking of another insurance undertaking, a reinsurance undertaking or an insurance holding company which has its registered office in another Member State, and if the competent authorities of the Member States concerned have agreed to grant exercise of the supplementary supervision to the competent authority of the latter Member State.In each case, the waiver may be granted only if the competent authorities are satisfied that the elements eligible for the solvency margins of the insurance undertakings included in the calculation are adequately distributed between those undertakings.Member States may provide that where the related insurance undertaking has its registered office in a Member State other than that of the insurance undertaking for which the adjusted solvency calculation is carried out, the calculation shall take account, in respect of the related undertaking, of the solvency situation as assessed by the competent authorities of that other Member State.2.2. Related reinsurance undertakingsWhen calculating the adjusted solvency of an insurance undertaking which is a participating undertaking in a reinsurance undertaking, this related reinsurance undertaking shall be treated, solely for the purposes of the calculation, by analogy with a related insurance undertaking, applying the general principles and methods described in this Annex.To this end, a notional solvency requirement shall be established for each related reinsurance undertaking on the basis of the same rules as are laid down in Article 16(2) to (5) of Directive 73/239/EEC or Article 19 of Directive 79/267/EEC. However, in the event of significant difficulty in applying these rules, the competent authorities may permit the notional life solvency requirement to be calculated on the basis of the first result as set out in Article 16(3) of Directive 73/239/EEC. The same elements as are found in Article 16(1) of Directive 73/239/EEC and in Article 18 of Directive 79/267/EEC shall be recognised as eligible for the notional solvency margin. The value of the assets and liabilities shall be assessed according to the same rules as are laid down in those Directives and in Directive 91/674/EEC.2.3. Intermediate insurance holding companiesWhen calculating the adjusted solvency of an insurance undertaking which holds a participation in an insurance undertaking, a related reinsurance undertaking, or an insurance undertaking in a non-member country through an insurance holding company, the situation of the intermediate insurance holding company is taken into account. For the sole purpose of this calculation, to be undertaken in accordance with the general principles and methods described in this Annex, this insurance holding company shall be treated as if it were an insurance undertaking subject to a zero solvency requirement and were subject to the same conditions as are laid down in Article 16(1) of Directive 73/239/EEC or in Article 18 of Directive 79/267/EEC in respect of elements eligible for the solvency margin.2.4. Related insurance or reinsurance undertakings having their registered office in non-member countriesA. Related non-member country insurance undertakingsWhen calculating the adjusted solvency of an insurance undertaking which is a participating undertaking in a non-member-country insurance undertaking, the latter shall be treated solely for the purposes of the calculation, by analogy with a related insurance undertaking, by applying the general principles and methods described in this Annex.However, where the non-member-country in which that undertaking has its registered office makes it subject to authorisation and imposes on it a solvency requirement at least comparable to that laid down in Directives 73/239/EEC or 79/267/EEC, taking into account the elements of cover of that requirement, Member States may provide that the calculation shall take into account, as regards that undertaking, the solvency requirement and the elements eligible to satisfy that requirement as laid down by the non-member country in question.B. Related non-member-country reinsurance undertakingsNotwithstanding section 2.2, when calculating the adjusted solvency of an insurance undertaking which is a participating undertaking in a reinsurance undertaking with its registered office in a non-member country, and subject to the same conditions as those set out in point A above, Member States may provide that the calculation shall take account, as regards the latter undertaking, of the own-funds requirement and the elements eligible to satisfy that requirement as laid down by the non-member country in question. Where only the insurance undertakings of that non-member country are subject to such provisions, the notional own-funds requirement on the related reinsurance undertaking and the elements eligible to satisfy that notional requirement may be calculated as if the undertaking in question were a related insurance undertaking of that non-member country.2.5. Non-availability of the necessary informationWhere information necessary for calculating the adjusted solvency of an insurance undertaking, concerning a related undertaking with its registered office in a Member State or a non-member country, is not available to the competent authorities, for whatever reason, the book value of that undertaking in the participating insurance undertaking shall be deducted from the elements eligible for the adjusted solvency margin. In that case, the unrealised gains connected with such participation shall not be allowed as an element eligible for the adjusted solvency margin.3. CALCULATION METHODS Method 1: Deduction and aggregation methodThe adjusted solvency situation of the participating insurance undertaking is the difference between:(i) the sum of:(a) the elements eligible for the solvency margin of the participating insurance undertaking, andb) the proportional share of the participating insurance undertaking in the elements eligible for the solvency margin of the related insurance undertakingand(ii) the sum of:(a) the book value in the participating insurance undertaking of the related insurance undertaking, and(b) the solvency requirement of the participating insurance undertaking, and(c) the proportional share of the solvency requirement of the related insurance undertaking.Where the participation in the related insurance undertaking consists, wholly or in part, of an indirect ownership, then item (ii)(a) shall incorporate the value of such indirect ownership, taking into account the relevant successive interests; and items (i)(b) and (ii)(c) shall include the corresponding proportional shares of the elements eligible for the solvency margin of the related insurance undertaking and of the solvency requirement of the related insurance undertaking, respectively.Method 2: Requirement deduction methodThe adjusted solvency of the participating insurance undertaking is the difference between:(i) the sum of the elements eligible for the solvency margin of the participating insurance undertakingand(ii) the sum of:(a) the solvency requirement of the participating insurance undertaking, and(b) the proportional share of the solvency requirement of the related insurance undertaking.When valuing the elements eligible for the solvency margin, participations within the meaning of this Directive are valued by the equity method, in accordance with the option set out in Article 59(2)(b) of Directive 78/660/EEC.Method 3: Accounting consolidation-based methodThe calculation of the adjusted solvency of the participating insurance undertaking shall be carried out on the basis of the consolidated accounts. The adjusted solvency of the participating insurance undertaking is the difference between:the elements eligible for the solvency margin calculated on the basis of consolidated data, and(a) either the sum of the solvency requirement of the participating insurance undertaking and of the proportional shares of the solvency requirements of the related insurance undertakings, based on the percentages used for the establishment of the consolidated accounts,(b) or the solvency requirement calculated on the basis of consolidated data.The provisions of Directives 73/239/EEC, 79/267/EEC and 91/674/EEC shall apply for the calculation of the elements eligible for the solvency margin and of the solvency requirement based on consolidated data.(1) Council Directive 91/674/EEC of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings (OJ L 374, 31.12.1991, p. 7).ANNEX II SUPPLEMENTARY SUPERVISION FOR INSURANCE UNDERTAKINGS THAT ARE SUBSIDIARIES OF AN INSURANCE HOLDING COMPANY, A REINSURANCE UNDERTAKING OR A NON-MEMBER-COUNTRY INSURANCE UNDERTAKING 1. In the case of two or more insurance undertakings referred to in Article 2(2) which are the subsidiaries of an insurance holding company, a reinsurance undertaking or a non-member-country insurance undertaking and which are established in different Member States, the competent authorities shall ensure that the method described in this Annex is applied in a consistent manner.The competent authorities shall exercise the supplementary supervision with the same frequency as that laid down by Directives 73/239/EEC and 79/267/EEC for calculating the solvency margin of insurance undertakings.2. Member States may waive the calculation provided for in this Annex with regard to an insurance undertaking:- if that insurance undertaking is a related undertaking of another insurance undertaking and if it is taken into account in the calculation provided for in this Annex carried out for that other undertaking,- if that insurance undertaking and one or more other insurance undertakings authorised in the same Member State have as their parent undertaking the same insurance holding company, reinsurance undertaking or non-member-country insurance undertaking, and the insurance undertaking is taken into account in the calculation provided for in this Annex carried out for one of these other undertakings,- if that insurance undertaking and one or more other insurance undertakings authorised in other Member States have as their parent undertaking the same insurance holding company, reinsurance undertaking or non-member-country insurance undertaking, and an agreement granting exercise of the supplementary supervision covered by this Annex to the supervisory authority of another Member State has been concluded in accordance with Article 4(2).In the case of successive participations (for example: an insurance holding company or a reinsurance undertaking which is itself owned by another insurance holding company, a reinsurance undertaking or a non-member-country insurance undertaking), Member States may apply the calculations provided for in this Annex only at the level of the ultimate parent undertaking of the insurance undertaking which is an insurance holding company, a reinsurance undertaking or a non-member-country insurance undertaking.3. The competent authorities shall ensure that calculations analogous to those described in Annex I are carried out at the level of the insurance holding company, reinsurance undertaking or non-member-country insurance undertaking.The analogy shall consist in applying the general principles and methods described in Annex I at the level of the insurance holding company, reinsurance undertaking or non-member-country insurance undertaking.For the sole purpose of this calculation, the parent undertaking shall be treated as if it were an insurance undertaking subject to:- a zero solvency requirement where it is an insurance holding company,- a notional solvency requirement as provided for in section 2.2 of Annex I where it is a reinsurance undertaking, or as provided for in section 2.4(B) of Annex I where it is a reinsurance undertaking with its registered office in a non-member country,- a solvency requirement determined according to the principles of section 2.4(A) of Annex I, where it is a non-member-country insurance undertaking,and is subject to the same conditions as laid down in Article 16(1) of Directive 73/239/EEC or in Article 18 of Directive 79/267/EEC as regards the elements eligible for the solvency margin.4. Non-availability of the necessary informationWhere information necessary for the calculation provided for in this Annex, concerning a related undertaking with its registered office in a Member State or a non-member country, is not available to the competent authorities, for whatever reason, the book value of that undertaking in the participating undertaking shall be deducted from the elements eligible for the calculation provided for in this Annex. In that case, the unrealised gains connected with such participation shall not be allowed as an element eligible for the calculation.