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УДК 378 THE ROLE AND CHARACTER OF SUPERVISORY EIOPA INSTRUMENTS ABOVE THE UNIFORM INSURANCE MARKET THE EU Dr Monika Szaraniec Cracow University of Economics, Department of Civil and Economic Law, Cracow, Poland

In the article taken analysis of character and role of supervisory instruments was in frames of the uniform insurance market the EU applied through EU organs of the supervision, in particular by EIOPA, until recently the supervision of the insur­ance market constituted the control domain of domestic organs of the supervision in the financial, formal and organizational meaning.

At present European System of Fi­nancial Supervisors (ESFS) and organs acting in his structures of the EU supervision have a right to issuing decisions of superintendents directly binding supervised enti­ties, i.e. domestic andfinancial institutions acting on the market. This creating such a concept of the supervision that in case of the inaction or the malfunction of national supervisory organs of the decision due to their meaning for the accomplishment of the purpose of the financial stability the EU is carrying European Supervisory Au­thorities (ESA) out means. In fact is spelling this limiting the self-reliance of domestic organs of the supervision and the division liabilities for the supervision of the insur­ance market between of EU and domestic organs.

The role and the structure of supervisory bodies above the uniform financial market

in the EU

In market economies providing for the stability markets is a basic aim of the supervision of the financial market (bank, insurance, investment), safeties of the turnover and confidences of his participants. In the initial phase of functioning of the single market the primary importance had the EU implementing common standards for taking economic activity and finishing of activities of the institutions financial and concerning the unification of norms the supervision in this respect.

Supervision based on domestic models isn't keeping up with the globalization on the financial market, where markets are integrated and combined.

Because an in­surance companies are conducting activity in many countries, according to the prin­ciple of the uniform permit. Restoring and keeping the stability and the credibility of the financial system is a prerequisite of supporting trusting on the internal market and his cohesions, and hence maintenances and improvements in conditions enabling to establish the fully integrated and working internal market in the area of financial ser­vices [1, p. 339].

Happening changes on the world insurance market caused, that regulations functioning in member states of the European Union in the solvency of an insurance companies had stopped corresponding to new challenges, in the protection of the in­terests of subjects and policy holders. And so conducting the reform of the system be­ing in force, being aimed at an establishment of a system of the solvency taking the risk profile into account insurance companies are exposed to which and plants be­

came necessary of reinsurance due to activity conducted by them. Implementing above changes is being prepared as part of the project the II Solvency [8].

The prudent supervision is appearing in two areas, which they have an interac­tion, i.e.

- supervision macroprudential,

- supervision microprudential.

Microprudent supervision forms the European System of the financial control - ESNF (European System of Financial Supervisors - ESFS) consisting of networks of domestic organs of the financial control cooperating with new European organs of the supervision. European Supervisory Authorities (ESA) are: European Authority Bank­ing (EBA), European Securities and Markets Authority (ESMA), and European In­surance and Occupational Pensions Authority (EIOPA) [9]. ESA comprises from oth­ers the bosses of domestic organs of the supervision of financial markets and repre­sentatives of the national central banks of Member States are creating ESA composi­tion the EU, as well as representatives of the European Central Bank and the Euro­pean Council for Of System risk (ERRS).

ESA being on the alert above the financial stability on the level of individual entities of the financial market and the consumer protection of financial services are ESA is relying on the division of duties and their mutual strengthening, combining the domestic supervision of financial institutions and the centralization of concrete tasks on the European level, in order to promote the harmonization of provisions, as well as cohesive supervisory practice and of accus­toming them. Increasing trusting between domestic organs of the supervision, among others by seeing to it that organs of the supervision of the assuming Member State have a proper participation in defining of the policies concerning the financial stabili­ty and consumer protections are supposed to be a purpose of the supervision, enabl­ing the more effective counteraction in the process for cross-border threats [2, pp. 136].

Supervision macroprudential was entrusted the new European entity i.e. the European Council for Of System risk (ERRS), by virtue of the regulation of the Eu­ropean Parliament and Advice of No. 1092 / 2010 [3] which is supposed to monitor and to assess wholes threats to the stability of the financial system. ESRB takes the supervision of systemic risks in the EU, both within sectors of the market and the financial market of the EU as a whole and connects the macro-prudential oversight of micro-prudential [4, pp.138], acting on the decision-makers and other supervisory authorities through binding legal instruments, and pursuant to authority [2, pp. 232].

Supervisory EIOPA instruments above the uniform insurance market in the EU

Competence of EIOPA was determined in regulations 1094 / 2010 [9]. To in­novative assigned EIOPA competence he is entitled to drawing up projects of control and implementation technical standards (so-called Binding Technical Standards - BTS). EIOPA are presenting control and implementation plans to the European Commission of technical standards for approving the cohesive harmonization in order to assure in fields in detail determined on file legislative (Art.

290 and 291 TFUE) [5].

They have BTS exclusively technical character, cannot settle strategic matters or of choices in the politics, but the contents are aimed at determining conditions for the application of these acts. Technical standards being delegated records in fact are a statutory instrument of the European Commission, which the EU is authorized to give norms universally tying about technical character based on. The specificity of BTS therefore would provide: a detailed, technical and practical nature, allowing for stan­dardization and consistency of supervisory practices in the Member States, and their role is to strict EU financial market integration. This integration is expressed both in eliminating the distinction between national insurance markets in the Member States, as well as seizing the delimitation between the various sectors of the financial market in the Member States due to the comprehensive approach to financial services. The removal of legal and procedural and substantive autonomy related to the conduct of the business of insurers in the system cross-border and cross-EU financial market is helpful EIOPA activities that have the greatest influence on the content of the BTS [6, pp. 174].

On insurance markets issuing guidelines and directed orders to competent bo­dies or entities of the financial market is a next instrument of EIOPA. It seems that guidelines and recommendations don't have a tying power, but the European legisla­tor is forcing them addressees into following. In regulations in addition a test proce­dure was established meaning, that if within two months of issuing the guideline or an order everyone is confirming competent bodies or entities, whether complies with them or is planning to do. If bodies or entities aren't going to comply with the guide­line or the recommendation is obliged to notify the office of it stating grounds. Pub­lishing by the Office information is means disciplining bodies or entities (of if neces­sary also justifying) about the non-compliance with the given guideline or the rec­ommendation. Such a publication is reprimanding participants in the turnover to the malfunction of the domestic organ of the supervision, performing the signaling func­tion in this respect. Such a centre isn't deprived of meaning due to the greater sensi­tivity of insurance markets to all negative information [7, pp. 312].

Fastening to the issuance administrative resolutions which can is EIOPA new instrument to be directed both to domestic organs of the supervision, as well as indi­vidual decision. EIOPA only have autonomous competence in giving decisions com­bining the domestic supervision and insurers what he is buying, that the EU supervi­sory system incurred has a possibility of direct disciplining of participants in the in­surance market the EU, constituting copying the EU on the rung in this sense activi­ties of domestic organs of supervision [6, pp. 177].

It is possible to divide these decisions in four groups:

1) decisions in the event that competent domestic supervision or insurers didn't apply EU acts (Art. 17 regulations 1094/2010),

2) decisions made in extraordinary situations (Art. 18 regulations 1094/2010),

3) decisions made at the settlement of disputes between appropriate au­thorities in cross-border situations (Art.19 regulations 1094/2010),

4) special decisions (Art. 9 sec. of 5 regulations 1094/2010) [6, pp. 179].

EIOPA decisions constitute the instrument of individual tying determining the

legal situation of subjects of the insurance market (it concerns the obligation is eating for the defined action or the omission) on the base of applicable regulations of regula­tions and EU directives, with which the EU law is applied and so are supervisory de­cisions of meaning strictly [6, pp. 177 and 178]. This one decisions can directly be directed to insurers on the market, as well as to domestic organs of the supervision of the insurance market. Decisions directed at individual entities have priority towards all decisions adopted earlier by appropriate authorities in the same matter.

May be problems associated with the change of administrative decisions, the consequences of the decision final and final [4, pp. 313]. Doubts arise also subject to determine the extent to which there is a decision to replace national supervisors by the decisions of EIOPA. In addition, the EU legislature did not indicate the scope of potential liability associated with the repeal of the decision by the national supervisory authority and its replacement decision EIOPA [7, pp. 314].

Additionally the EU legislator didn't show legal effects of giving such deci­sions and directed opinions to domestic organs of the supervision in the event that in­directly such decisions or opinions are producing effects towards insurers. These is­sues require and so clarifying and intervention for the EU legislator.

Resume

Supervision macroprudential, performed by ERRS, doesn't constitute the su­pervision sensu stricto, but is a crucial element of the supervisory politics in the EU.

EIOPA decisions are binding instruments for supervision at national supervisors and insurers operating in the market and are the means of supervision at the EU financial market in sensu stricto. Such construction supervision makes the national supervisory authorities lose in this respect certain supervisory powers, and EIOPA become the ultimate supervisory authority, but only in a situation in which the national supervisory position violates EU law or there is no decision of national supervisory authority to ensure the financial stability of the EU market. It is also important that decisions EIOPA are guaranteed precedence of bypassing previously issued national supervisory decisions on the insurance market in the same case.

References

[1] Piotrowska A. Supervision macroprudential above the insurance market and in extraor­dinary situations [in:] Directions of the development of economic insurance, ed. B. Gnela, M. Sza- raniec, Warsaw 2013.

[2] Zalcewicz A. The Change of the institutional structure and the concept of the supervision of uniform financial markets of the EU, [in:] System of the public finance. Revenue law in view of challenges of the 21st century, ed. A. Dobaczewska, E. Juchniewicz, T. Sowinski, CeDeWu publishing company, Warsaw 2010.

[3] The PE regulation and the No. council 1092 / 2010 from 24 November 2010 on the EU supervision macroprudential above the financial system and of establishing the European Council for System risk, OJ The EU L 2010. 331.1, farther ruling No. 1092 / 2010.

[4] Stanislawiszyn P. Prospects of changes of European regulations in the financial control in 2011 (in:) J. Szambelanczyk (ed.), control Challenges in view of experience of the global finan­cial crisis, Warsaw 2011.

[5] Treaty on functioning of the European Union — consolidated version (OJ C 326 EU from 26.10.2012, p. 47)

[6] Fedorowicz M. Supervision of financial markets of the European Union, Warsaw 2013.

[7] Michor A. Administrative-legal forms of the interference of European organs of the su­pervision on the financial market of the European Union, Economics and the law, volume VII, Gen­eration 2011.

[8] Directive 2009/138/EC of European Parliament and of the Council (EU) of 25.11.2009 on the taking-up and pursuit of business of Insurance and Reinsurance (Solvency II) OJ l 335 z

17.12.2009.

[9] Regulation of the European Parliament and of the Council (EU) No. 1094/2010 of 24.11.2010 in the matter of establishing a European Supervisory Authority (EIOPA) OJ L 331/48,

15.12.2010.

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Источник: Коллектив авторов. СОЦИАЛЬНАЯ РОЛЬ СИСТЕМЫ СТРАХОВАНИЯ В УСЛОВИЯХ РЫНОЧНОЙ ЭКОНОМИКИ РОССИИ Сборник трудов XV Международной научно-практической конференции (Казань, 2-5 июня 2014 г.). 2014

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