EUROPEAN COMMISSION Brussels, XXX COM(2012) 360 ... - BVVM

The new IMD would continue to have the features of a "minimum harmonisation" legal
instrument. This means that Member States may decide to go further if necessary for the
purposes of consumer protection. However, the minimum standards of IMD will be raised
significantly. Some parts of the new Directive will be reinforced by Level 2 measures in order
to align the rules with MiFID II: in particular, in the chapter regulating the distribution of life
insurance policies with investment elements (hereafter: insurance investments - see below).
This aims to harmonise the sales of investment insurances across the EU through Level 2
measures 25. This is an innovation as compared to the text of the original Directive. It is
important that the Commission shall be in a position to compare the resulting situations in the
various Member States and thus properly carry out its task of overseeing the application of
Union law. Moreover, a revision clause is considered in the directive and, in order to be able
to collect all relevant information on the functioning of those rules, the Commission will need
to be able to monitor their implementation from the outset.
Chapter on insurance investment: The text of the proposal features a Chapter introducing
additional customer protection requirements in relation to insurance investment products.
There is a strong political will to put such provisions in place but, at the same time, there is
very little experience as this is a new area. Therefore, it is of high importance that the
Commission receives transposition documents on how the Member States have given effect to
such provisions.
Low estimated additional administrative burden stemming from requesting explanatory
documents from Member States: As mentioned above, the current text has been in place since
2002 (when the original Directive was adopted). Therefore, it will not be burdensome for
Member States to notify their implementing provisions as they have normally been notifying
most of them for quite some time already. The estimated low additional administrative burden
of requesting explanatory documents from Member States regarding the new parts of the
Directive is proportionate and necessary for the Commission to carry out its task of
overseeing the application of Union law.
On the basis of the above, the Commission believes that the requirement to provide
explanatory documents in the case of the proposed Directive is proportionate and does not go
25 The IMD review is based on the "Lamfalussy process" (a four-level regulatory approach recommended
by the Committee of Wise Men on the Regulation of European Securities Markets, chaired by Baron
Alexandre Lamfalussy and adopted by the Stockholm European Council in March 2001 aiming at more
effective securities markets regulation) as developed further by Regulation (EU) No 1034/2010 of the
European Parliament and of the Council, establishing a European Supervisory Authority (European
Insurance and Occupational Pensions Authority): at Level 1, the European Parliament and the Council
adopt a directive in codecision which contains framework principles and which empowers the
Commission acting at Level 2 to adopt delegated acts (Art 290 The Treaty on the Functioning of the
European Union C 115/47) or implementing acts (Art 291 The Treaty on the Functioning of the
European Union C 115/47). In the preparation of the delegated acts the Commission will consult with
experts appointed by Member States. At the request of the Commission, EIOPA can advise the
Commission on the technical details to be included in level 2 legislation. In addition, Level 1 legislation
may empower EIOPA to develop draft regulatory or implementing technical standards according to Art
10 and 15 of the EIOPA Regulation which may be adopted by the Commission (subject to a right of
objection by Council and Parliament in case of regulatory technical standards). At Level 3, EIOPA also
works on recommendations, guidelines and compares regulatory practice by way of peer review to
ensure consistent implementation and application of the rules adopted at Levels 1 and 2. Finally, the
Commission checks Member States' compliance with EU legislation and may take legal action against
non-compliant Member States.
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