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Brussels, 10 October2014
Solvency II Delegated Act – Frequently asked questions
See also IP/14/1119
1. What is Solvency II?
Directive 2009/138/EC ('Solvency II'), as amended by Directive 2014/51/EU ('Omnibus II'), introduces economic risk-based capital requirements across all EU Member States for the first time. It replaces 14 existing directives (commonly referred to as 'Solvency I'). The new rules also place greater emphasis on risk management and introduce stricter requirements on the public disclosure of certain information.
2. What does the Delegated Act (implementing rules) add to the Solvency II Directive?
The implementing rules contained in this delegated act aim to set out more detailed requirements for individual insurance undertakings as well as for groups, based on the provisions set out in the Solvency II Directive. They will make up the core of the single prudential rulebook for insurance and reinsurance undertakings in the Union. They are based on a total of 76 empowerments1 in the Solvency II Directive and in particular cover the following areas:
3. What do the implementing rules do to stimulate long-term investment?
European insurers are the largest institutional investors in Europe’s financial markets. It is crucial that prudential regulation should not unduly restrain insurers’ appetite for long-term investments, while properly capturing the risks. See also separation section below on high quality securitisation. The implementing rules for Solvency II include the details of the standard formula for the calculation of capital requirements, in particular for market risk. The standard formula must be sufficiently detailed to cater for different asset classes, featuring different risk profiles.
Reductions in the capital charges for long-term investments have only been considered where there is a clear empirical case within the calibration standards applicable under Solvency II. A more tailored treatment of these assets has the added advantage of increasing the risk-sensitivity of the capital requirements and thereby promoting good risk management and supporting the prudential robustness of the overall regime. Of particular significance is the identification of a high-quality category of securitisation based on the criteria set out in the European Insurance and Occupational Pensions Authority (EIOPA)'s advice on high-quality securitisation from December 2013). It will encourage insurers to invest in simpler securitisations, which are more transparent and standardised, thereby reducing complexity and risk and promoting sound securitisation markets which are needed by the EU economy.
Other specificities of the standard formula to stimulate long-term investment by insurers include:
4. How do capital charges compare with those applicable to banks under the Capital Requirements Regulation (CRR)/ Capital Requirements Directive IV (CRDIV)?
It is important to ensure as much consistency as possible across financial sectors to favour the development of a new and resilient investor base while avoiding arbitrage opportunities.
First, it is desirable that definitions of asset classes are as consistent as possible in different sectoral regulations. For instance, the definition of simpler, more transparent securitisations referred to in question 3 above, is consistent with the definition set out in the implementing rules on banks' Liquidity Coverage Ratio (see MEMO/14/579).
Second, it is desirable that relative capital requirements on different asset classes are comparable across sectors, e.g. the relative ranking in terms of riskiness of equities versus corporate bonds should be as consistent as possible.
However, a strict alignment of capital requirements in banks and insurance would not be appropriate, as the risk measures are very different. Indeed, a direct comparison of the capital calibrations for market and credit risk is not meaningful for a number of reasons:
5. How do the implementing rules ensure that European insurers can continue to be competitive abroad?
The Solvency II Directive includes equivalence provisions regarding third countries. When EU insurance groups calculate how their operations located in an equivalent third country contribute to the group-wide Solvency Capital Requirement, equivalence provisions allow them to use the third-country local rules intead of Solvency II rules, under certain conditions.
The implementing rules flesh out certain criteria for equivalence and elaborate on the choice of calculation methods for group solvency. They ensure that future equivalence decisions by the Commission will bring real benefits to EU insurance groups active abroad, maintaining a level playing field with foreign competitors.
6. When will the new rules become applicable?
The Solvency II Directive, along with the Omnibus II Directive that amended it, will have to be transposed by Member States into national law before 31 March 2015. On 1 April 2015, a number of early approval processes will start, such as the approval process for insurers' internal models to calculate their Solvency Capital Requirement. The Solvency II regime will become fully applicable on 1 January 2016. This timeline – in parallel with EIOPA's set of guidelines on preparing for Solvency II – allows supervisors and undertakings to prepare for the application of the new regime.
7. How do the implementing rules contribute to ensuring the proportionate application of Solvency II, particularly for small and less complex insurers?
The principle of proportionality is an integral part of the Solvency II regime, ensuring its proportionate application in particular to small and less complex undertakings. The implementing rules build on the principles set out in the Directive.
The specific areas covered by the implementing rules relating to proportionality include:
8. Will the effectiveness of the provisions set out in the implementing rules be reviewed?
The implementing rules include a recital stating that the methods, assumptions and standard parameters used when calculating the SCR with the standard formula shall be reviewed by the Commission by the end of 2018. This review should make use of the experience gained by insurance and reinsurance undertakings during the transitional period and the first years of application of these implementing rules and should focus, among other areas, on the calibrations of fixed-income securities and infrastructure invesments.
9. How do the implementing rules ensure that insurance and reinsurance undertakings are not exposed to excessive volatility in their financial positions in times of stressed investment markets?
Under Solvency II, insurers are incentivised to match cash-flows with the long-term guarantees they offer using long-term assets available in the market. This long-term cash-flow-based investment strategy means they are less reliant on short-term price movements in their assets, where these are unrelated to default. The long-term guarantee measures mitigate artificial volatility stemming from short-term asset price movements by partially reflecting these movements in the market-consistent valuation of the liabilities. This has the effect of reducing the overall volatility of the balance sheet stemming from short-term asset price movements. By incorporating the long-term investment strategies of insurers in the market-consistent valuation framework, the long-term ability of insurers to meet their cash-flow needs is more accurately captured, enabling them to continue offering guarantees at affordable prices.
The long-term guarantee measures were introduced in the Omnibus II Directive, and further technical details are set out in the implementing rules. The aim in the implementing rules is simply to operationalise the agreement reached in the trilogue discussions of the co-legislators on the long-term guarantee measures.
10. Why are the limits set out in the implementing rules on the quality of insurers' capital resources (own funds) more stringent than those given in the Directive?
According to the Directive, the capital resources of an insurer, known as its 'own funds', shall be classified into three tiers depending on their quality. The intention of the limits is to ensure that the own fund items will be available to meet any losses which the undertaking may incur. Items which have a fixed duration (such as debt issued by the undertaking), for instance, may not be available when they are needed, and would therefore be assigned to a lower tier. Ordinary share capital, by contrast, is permanent and loss absorbent in the sense that its value can vary in response to losses incurred by the insurer. It is therefore assigned to tier 1 (the highest quality category).
The Directive sets minimum quantitative requirements regarding the proportions of the capital requirements that must be covered by own funds of tiers 1, 2 and 3, while including an empowerment for implementing rules in which stricter limits should be introduced by the Commission. The implementing rules increase the percentage of SCR of an insurer which must be covered by tier 1 capital to half, and of the MCR to 80%. The intention of the stricter limits is to improve the risk-sensitivity of the Solvency II framework by allowing supervisors to intervene if the capital held by insurers is not of a sufficient quality. The limits are not however so restrictive as to make it impossible for mutual insurers, who cannot raise ordinary equity (tier 1), to recapitalise.
HIGH QUALITY SECURITISATION
11. What are the specific provisions in the Solvency II delegated act?
Building on recommendations from the European Insurance and Occupational Pensions Authority (EIOPA), the Commission delegated act includes a detailed list of criteria to identify high-quality securitisation. These criteria are mainly related to i) the structural features of transactions, ii) underlying assets’ characteristics, iii) transparency features and iv) underwriting processes. Insurance undertakings investing in these instruments will be required to hold less capital for market risk when they invest in securitisations that feature a high degree of simplicity, transparency and credit quality. This high-quality category would include the most senior tranches of securitisations backed (under a "true sale" mechanism) by residential mortgages, auto loans and leases, SME loans or consumer loans and credit card receivables, but excluding re-securitisations and synthetic securitisations.
Securitisation positions that meet the "high quality" requirements will attract significantly lower capital requirements for insurers, compared to other securitisation positions. Their treatment under the standard formula follows a look-through approach, whereby capital requirements on those positions cannot be higher that capital requirements on the underlying securitised exposures if they were held directly by insurers. Securitised exposures would typically be treated as unrated loans, attracting a 3%-per-year-of-duration stress in the standard formula. Therefore, risk factors applicable to high-quality securitisation positions are capped at 3%.
12. What is the prudential basis for the preferential treatment of high quality securitisations under Solvency II?
Only the most senior tranches may qualify for the favourable capital treatment of high quality securitisation positions. These senior tranches provide credit enhancement, in other words, their credit risk is lower than the credit risk in the entire pool of underlying exposures. It makes sense from an economic point of view that risk factors for high-quality senior securitisation positions that are no higher than those applicable to the underlying securitised exposures if they were held directly by insurers.
13. Eligibility criteria in the LCR and Solvency II delegated acts
The criteria to identify highly transparent, simple and sound securitisation instruments set out in the Solvency II and Liquidity Coverage Ratio delegated acts are based on recommendations from the European Insurance and Occupational Pensions Authority (EIOPA) and a detailed analysis of the liquidity of different instruments from the European Banking Authority (EBA).2 In December 2013, the Commission received EIOPA's technical report on the design and calibration of the Solvency II standard formula for certain long-term investments3. This report proposed to single out high-quality securitisation and to apply a differentiated prudential treatment to them.
The European Parliament, too, has expressed its support for the development of high-quality securitisation instruments in its Resolution on long term financing.
The proposed criteria to identify high-quality securitisations do not include any risk retention requirements (i.e. requirements that the originator, sponsor or original lender should retain a material net economic interest in the transaction). This is because risk retention requirements are already implemented in EU law and apply across the board, to all types of securitisation instruments (whether high-quality or not) held by insurance undertakings6 and credit institutions7.
Most criteria on high-quality securitisation are common to the Solvency II and LCR delegated acts. However, as the purpose is different in each act – the Solvency II standard formula concerns capital requirements, while the LCR delegated act prescribes rules for the assets held by banks in their liquidity buffer – some criteria are specific to the LCR delegated act, to ensure that high-quality securitisation instruments are also highly liquid.
13.1. General Requirements
13.1.1. Maximum seniority
The tranche must be the most senior in the securitisation transaction, and it must remain so at all times, even after events that may impact the relative seniority of tranches, such as the delivery of an enforcement or acceleration notice. This criterion ensures that the credit quality of the tranche is indeed enhanced as compared to the credit quality of the entire pool of underlying exposures. Maximum seniority is among the more relevant features justifying a prudential treatment that is aligned to the underlying exposures.
Homogeneity in the type of underlying exposures increases soundness, simplicity and transparency (in particular, loan-level reporting is easier to produce and interpret). All underlying exposures must belong to only one of the following types:
Securitisation positions may be backed by loans secured by a first-ranking mortgage and/or by fully-guaranteed residential loans as referred to in Article 129(1)(e) of the Capital Requirements Regulation. In both cases, the pool of loans must feature on average a loan-to-value ratio lower than or equal to 80%. In the case of mortgage loans only, it is possible to derogate from this loan-to-value requirement, provided that instead, the national law of the Member State where the loans are originated provides for a maximum loan-to-income ratio not higher than 45%, and each loan in the pool complies with this limit. The relevant national law must be communicated to the Commission, and EBA and/or EIOPA.
Loans, leases and credit facilities to undertakings, in particular SMEs:
Securitisation positions may be backed by commercial loans, leases and credit facilities to undertakings to finance capital expenditures or business operations other than the acquisition or development of commercial real estate, provided that at least 80% of the borrowers in the pool in terms of amount are small and medium-sized enterprises at the time of issuance of the securitisation.
Auto loans or leases:
Securitisation positions may be backed by a loans or leases for the financing of a broad range of vehicles. Such loans or leases may include ancillary insurance and service products or additional vehicle parts, and in the case of leases, the residual value of leased vehicles8. All loans and leases in the pool shall be secured with a first-ranking charge or security over the vehicle or an appropriate guarantee in favour of the securitisation special purpose vehicle.
Consumer loans and credit card receivables:
Securitisation positions may be backed by loans and credit facilities to individuals for personal, family or household consumption purposes.
As a consequence of this closed list of eligible underlying exposures, commercial mortgage backed securities (CMBS) and collateralised debt obligations (CDOs)9 are excluded. This is justified given their poorer performance, as shown in EIOPA's advice and other studies of CMBS.10
No re-securitisations, no synthetic securitisations
Re-securitisations are explicitly excluded, as they are typically complex and less transparent structures, where the cascading of investor losses is very difficult to understand due to re-tranching.
The same goes for synthetic securitisations, where the underlying exposures are not transferred to the special purpose vehicle. Instead, the transfer of risk is achieved by the use of credit derivatives or guarantees, while the exposures being securitised remain with the originator. The transfer of the assets to be securitised ensures that securitisation investors have recourse to those assets should the Securitisation Special Purpose Entity (SSPE) not fulfil its payment obligations. Such recourse cannot be granted in synthetic transactions, due to the fact that only the credit risk associated with the underlying assets, rather than the ownership of such assets, is transferred to the SSPE. Such a structure also adds counterparty risk on derivatives or guarantees, and hampers investors' rights to the proceeds of the underlying exposures. In addition, most synthetic structures add to the complexity of the securitisation in terms of risk modelling.
Derivatives can only be used for hedging currency and interest rate risk. This also excludes the synthetic securitisations described in the above paragraph.
The pool of underlying exposures must not include transferable financial instruments (this effectively means CDOs are excluded), except financial instruments issued by the securitisation special purpose entity itself, in order to accommodate master trust structures.
The transfer of the underlying exposures to the securitisation special purpose vehicle must be sufficiently certain from a legal point of view:
the transfer must be enforceable against any third party and the underlying exposures be beyond the reach of the seller (originator, sponsor or original lender) and its creditors, including in the event of the seller's insolvency ('true sale' requirement);
the transfer of the underlying exposures to the SSPE may not be subject to any severe clawback provisions in the jurisdiction where the seller is incorporated because such provisions induce legal insecurity on investors' rights.
13.1.5. Continuity provisions for the replacement of servicers, derivative counterparties and liquidity providers
The underlying exposures must have their administration governed by a servicing agreement which includes servicing continuity provisions to ensure, at a minimum, that a default or insolvency of the servicer does not result in a termination of servicing.
Where applicable, the documentation governing the securitisation must also include continuity provisions to ensure, at a minimum, the replacement of derivative counterparties and liquidity providers upon their default or insolvency.
The aim of these two criteria is to mitigate credit risk with different counterparties involved in the securitisation transaction, whose default or insolvency could jeopardise the smooth running of the transaction.
13.1.6. Absence of credit-impaired obligors
At the time of issuance of the securitisation or when incorporated in the pool of underlying exposures at any time after issuance, the underlying exposures must not include exposures to credit-impaired obligors (or where applicable, credit-impaired guarantors). The definition of credit-impaired obligors or guarantors is both backward-looking (e.g. the obligor has declared bankruptcy, or has recently agreed with his creditors to a debt dismissal or reschedule, or is on an official registry of persons with adverse credit history) and forward-looking (e.g. the obligor has a credit assessment by an external credit assessment institution or has a credit score indicating a significant risk that contractually agreed payments will not be made compared to the average obligor for this type of loans in the relevant jurisdiction).
This criterion effectively excludes 'sub-prime' loans from the high-quality securitisation category.
13.1.7. Absence of loans in default
At the time of issuance of the securitisation or when incorporated in the pool of underlying exposures at any time after issuance, the underlying exposures must not include exposures in default, as defined in the banking prudential rules in Article 175 of Regulation (EU) No 575/2013. This criterion ensures that the securitisation does not contain loans or leases already in default when the securitisation transaction begins or when new exposures are transferred to the SSPE.
The repayment of the securitisation position must not be structured to depend predominantly on the sale of assets securing the underlying exposures; however, this shall not prevent such exposures from being subsequently rolled over or refinanced.
The point of this criterion is to exclude transactions where the ability of the SSPE to repay the securitisation notes is subject to an unacceptable level risk of risk, due to overreliance on the proceeds of the sale of assets securing the underlying exposures such as used cars when an auto lease securitisation transaction matures. While recognising that auto lease securitisations including residual values may be eligible as high quality (see paragraph ), the repayment of those securitisations should not rely predominantly on the future realisation of those residual values.
13.1.9. Pass-through requirement for non-revolving structures
Cash proceeds from the underlying exposures should flow in a simple and transparent way to investors. Structures where a significant amount of cash is retained within the SSPE (for example, securitisations with bullet payments) would not comply with this pass-through profile and, therefore, are excluded.
13.1.10. Early amortisation provisions for revolving structures
Where the securitisation has been set up with a revolving period, the transaction documentation provides for appropriate early amortisation events, which shall include at a minimum all of the following:
a deterioration in the credit quality of the underlying exposures;
a failure to generate sufficient new underlying exposures of at least similar credit quality;
the occurrence of an insolvency-related event with regard to the originator or the servicer.
High-quality securitisations should ensure that, in the presence of a revolving period mechanism, investors are sufficiently protected from the risk that principal amounts may not be fully repaid. Sufficient protection should be ensured by the inclusion of provisions which trigger amortisation of all payments at the occurrence of adverse events such as those mentioned in the criterion.
13.1.11. At least one payment at the time of issuance
At the time of issuance of the securitisation, the borrowers (or, where applicable, the guarantors) must have made at least one payment. This is intended to exclude securitisation backed by newly-originated loans. However, this requirement would not be proportionate in practice for the securitisation of credit card receivables. Hence there is a derogation for this type of securitisation.
13.1.12. Absence of self-certified loans
In the case of securitisations backed by residential loans, the pool of loans must not include any loan that was marketed and underwritten on the premise that the loan applicant or, where applicable intermediaries, were made aware that the information provided might not be verified by the lender.
This requirement is essential to exclude loans where the applicant and, where applicable, intermediaries, might be incentivised to misrepresent essential information, e.g. to overstate their income. This criterion also helps exclude 'sub-prime' lending.
13.1.13. Assessment of retail borrowers' creditworthiness
In the case of securitisations where the underlying exposures are residential loans, auto loans or leases, consumer loans or credit facilities, the creditworthiness of the borrowers must be assessed thoroughly, in accordance with the Mortgage Credit Directive (Directive 2014/17/EU) or the Consumer Credit Directive (Directive 2008/48/EC) or equivalent rules in third countries, where applicable. This requirement effectively excludes flawed securitisation business models, relying on unsound underwriting practices.
13.1.14. Transparency and disclosure of loan-level data
Where either the originator or sponsor of a securitisation is established in the Union, they must comply with transparency requirements set out in the Capital Requirement Regulation. Furthermore, in accordance with Article 8b of Regulation (EU) No 1060/2009, the European Securities and Markets Authority (ESMA) will in 2017 set up a website centralising the publication of information regarding structured finance instruments, i.e. securitisations. Through this website, the issuer, originator or sponsor of the securitisation will be able to publish information on the credit quality and performance of the underlying assets of the structured finance instrument, the structure of the securitisation transaction, the cash flows and any collateral supporting a securitisation exposure as well as any information that is necessary for investors to conduct comprehensive and well-informed stress tests on the cash flows and collateral values supporting the underlying exposures.
Where neither the issuer, nor the originator, nor the sponsor of a securitisation is established in the Union, comprehensive loan-level data in compliance with standards generally accepted by market participants must be made available to existing and potential investors and regulators at issuance and on a regular basis.
13.1.15. Listing requirement
Both the Solvency II and LCR delegated acts require that high-quality securitisation positions should be listed on a regulated market/recognised exchange, or admitted to trading on another organised venue, with a robust market infrastructure. The drafting of this criterion could not be strictly aligned in the two acts because of legal constraints stemming from differences in the corresponding 'level 1' legislation11. In addition, under the LCR delegated act, securitisation positions may be deemed highly liquid if they are tradable on generally accepted repurchase markets. This was not included in the Solvency II delegated act as repurchase transactions to generate liquidity are not typical for insurers.
13.1.16. Credit quality
Both the Solvency II and LCR delegated acts require that high-quality securitisation positions receive a minimum external credit assessment, on issuance and at any time thereafter.
The minimum external credit assessment is one of the elements for high-quality securitisation positions and does not constitute sole and mechanistic reliance, in accordance with the principles of the Financial Stability Board for reducing reliance on CRA ratings12.
In Solvency II, the position should be investment grade, i.e. be assigned to credit quality step 3 at least.
In order to ensure that the securitisation position is highly liquid, the LCR delegated act requires that it is assigned to credit quality step 1.
The mappings of external credit assessments onto the respective scales of credit quality steps applicable in banking and insurance legislation is prepared by the Joint Committee of the European Supervisory Authorities.
Listed in detail in Annex 2 of the impact assessment for the Solvency II delegated act.
This analysis examined the liquidity of some asset backed securities against a number of metrics. However, this work was not sufficient for EBA to recommend the inclusion of ABS (apart from RMBS) as HQLA for the purposes of LCR.
By virtue of Article 135(2) of Directive 2009/138/EC (Solvency II).
By virtue of Article 405 of Regulation (EU) No 575/2013 (CRR).
Auto loans or lease securitisations including residual values must however comply with paragraph below, which prevents the repayment of the securitisation depending predominantly on the sale of the vehicles.
CDOs are also excluded by virtue of the criteria in point because their underlying exposures usually include transferable debt instruments, such as non-investment grade bonds.
See page 121 of EIOPA's technical report (2013).
On the one hand, the Solvency II Directive uses the concept of a "regulated market" as defined in Article 13(22). On the other hand, the Capital Requirements Regulation uses the concept of a "recognised exchange" as defined in Article 4(1)(72). While the latter is also based on the concept of a "regulated market", the CRR definition also includes clearing mechanism requirements.