EIOPA: Peer review assessing how National Competent Authorities (NCAs) supervise and determine whether an insurer’s set­ting of key functions fulfils the legal requirements of Solvency II

The main task of the European Insurance and Occupational Pensions Authority (EIOPA) is to

  • enhance supervisory convergence,
  • strengthen consumer protection
  • and preserve financial stability.

In the context of enhancing supervisory convergence and in accordance with its mandate, EIOPA regularly conducts peer reviews, working closely with national competent authorities (NCAs), with the aim of strengthening both the convergence of supervisory practices across Europe and the capacity of NCAs to conduct high-quality and effective supervision.

In line with its mandate, the outcome of peer reviews, including identified best practices, are to be made public with the agreement of the NCAs that have been subject to the review.

BACKGROUND AND OBJECTIVES

Enhancing the governance system of insurers is one of the major goals of Solvency II (SII). The four key functions (risk management, actuarial, compliance and internal audit) as required under the SII regulation are an essential part of the system of governance. These key functions are expected to be operationally independent to ensure an effective and robust internal control environment within an insurer and support high quality of decision making by the management. At the same time it is also important that these governance requirements are not overly burdensome for small and medium-sized insurers. Therefore SII allows NCAs to apply the principle of proportionality in relation to compliance with key function holder requirements for those insurers.

Under SII, insurers may combine key functions in one holder. However, such combinations have to be justified by the principle of proportionality and insurers need to properly address the underlying conflicts of interest. Holding a key function should generally not be combined with administrative, management or supervisory body (AMSB) membership or with operational tasks because of their controlling objective. Thus, these combinations should rather occur in exceptional cases, taking into account a risk-based approach and the manner in which the insurer avoids and manages any potential conflict of interest.

This peer review assesses how NCAs supervise and determine whether an insurer’s setting of key functions fulfils the legal requirements of SII with a particular emphasis on proportionality. The peer review examines practices regarding:

  • combining key functions under one holder;
  • combining key functions with AMSB membership or with carrying out operational tasks;
  • subordination of one key function under another key function;
  • split of one key function among several holders;
  • assessment of the fitness of key function holders; and
  • outsourcing of key functions.

The period examined under the scope of this peer review was 2016 but also covered supervisory practices executed before 2016 in the preparatory stage of SII. The peer review was conducted among NCAs from the European Economic Area (EEA) on the basis of EIOPA’s Methodology for conducting Peer Reviews (Methodology).

Detailed information was gathered in the course of the review. All NCAs completed an initial questionnaire. This was followed by fieldwork comprising visits to 8 NCAs and 30 conference calls.

MAIN FINDINGS

The review showed that NCAs in general apply the principle of proportionality and that they have adopted similar approaches.

SUMMARY RESULTS OF THE COMPARATIVE ANALYSIS

  • Supervisory framework: Approximately half of NCAs use written supervisory guidance for the application of the principle of proportionality. Larger NCAs in particular use written supervisory guidance in order to ensure consistency of their supervisory practice among their supervisory staff.
  • Approach of NCAs: Most NCAs have a similar approach. NCAs assess the insurers’ choice of key function holders at the time of initial notification regarding the key function holder’s appointment. If any concerns are noted at this stage, for example regarding combinations or fitness, NCAs generally challenge and discuss these issues with the insurer, rather than issuing formal administrative decisions.
  • Combining key functions in one holder: This occurs in almost all countries. The most frequent combinations are between risk management and actuarial functions and between risk management and compliance functions. Combinations are most commonly used by smaller insurers but are also seen in large insurers. EIOPA has identified the need to draw the attention of NCAs to the need to challenge combinations more strongly, especially when they occur in bigger, more complex insurers, and to ensure that adequate mitigation measures are in place to warrant a robust system of governance.
  • Holding the internal audit function and other key functions: The combination of the internal audit function with other key functions occurs in 15 countries, although the frequency of such combinations is relatively low. Moreover, there were cases of the internal audit function holder also carrying out operational tasks which could lead to conflicts of interest and compromise the operational independence of the internal audit function. It is important to emphasise that the legal exemption of Article 271 of the Commission Delegated Regulation EU (2015/35) does not apply to the combination with operational tasks.
  • Combining a key function holder with AMSB membership: Most NCAs follow a similar and comprehensive approach regarding the combination of key function holder and AMSB member. In this regard, NCAs accept such cases only if deemed justified under the principle of proportionality. This peer review shows that two NCAs request or support combinations of AMSB member and the risk management function holder regardless of the principle of proportionality in order to strengthen the knowledge and expertise regarding risk management within the AMSB.
  • Combining key function holders (excluding internal audit function holder) with operational tasks: In nearly all countries combinations of risk management, actuarial and compliance key function holders with operational tasks occur, but such combinations generally occur rarely or occasionally. However, several NCAs do not have a full market overview of such combinations with operative tasks. Adequate mitigating measures are essential to reduce potential conflicts of interest when key function holders also carry out operational tasks. The most common combinations are the compliance function holder with legal director and the risk management function holder with finance director.
  • Splitting a key function between two holders: About half of the NCAs reported cases where more than one individual is responsible for a particular key function (‘split of key function holder’). The most common split concerns the actuarial function (split between life and non-life business). NCAs should monitor such splits in order to maintain appropriate responsibility and accountability among key function holders.
  • Subordination of a key function holder to another key function holder or head of operational department: This is observed in half of the countries reviewed. An organisational subordination can be accepted, but there needs to be a direct ‘unfiltered’ reporting line from the subordinated key function holder to the AMSB. In cases of subordination, conflicts of interest have to be mitigated and operational independence needs to be ensured including the mitigating measures concerning the remuneration of the subordinated key function holders.
  • Fitness of key function holders: Most NCAs assess the fitness of the key function holder at the time of initial notification and apply the principle of proportionality. Several NCAs did not systematically assess the key function holders appointed before 2016. These NCAs are advised to do so using a risk-based approach.
  • Outsourcing of key function holders: Most NCAs have observed outsourcing of key function holders. According to the proportionality principle, an AMSB member may also be a designated person responsible for overseeing and monitoring the outsourced key function. Eight NCAs make a distinction between intra-group and extra-group outsourcing and six NCAs do not require a designated person in all cases, which may give rise to operational risks.

BEST PRACTICES

Through this peer review, EIOPA identified four best practices.

  • When NCAs adopt a structured proportionate approach based on the nature, scale and complexity of the business of the insurer regarding their supervisory assessment of key function holders and combination of key function holders at the time of initial notification and on an ongoing basis. The best practice also includes supervisory documentation and consistent and uniform data submission requirements (for example an electronic data submission system for key function holder notification). This best practice has been identified in Ireland and the United Kingdom.
  • When an NCA has a supervisory panel set up internally which discusses and advises supervisors about complex issues regarding the application of the proportionality principle in governance requirements regarding key functions. This best practice has been identified in the Netherlands.
  • When assessing the combination of key function holder with AMSB member, EIOPA considers the following as best practice for NCAs:
    • To publicly disclose the NCA’s expectations that controlling key functions should generally not be combined with operational functions for example with the membership of the AMSB. Where those cases occur, NCAs should clearly communicate their expectation that the undertaking ensures that it is aware of possible conflicts of interest arising from such a combination and manages them effectively.
    • To require from insurers that main responsibilities as a member of the AMSB do not lead to a conflict of interest with the tasks as a key function holder.
    • To assess whether the other AMSB members challenge the key function holder also being an AMSB member.

This best practice has been identified in Lithuania.

  • When NCAs apply a risk-based approach for the ongoing supervision that gives the possibility to ensure the fulfilment of fitness requirements of KFHs at all times by holding meetings with key function holders on a regular scheduled basis as part of an NCA’swork plan (annual review plan). The topics for discussion for those meetings can vary, depending for example on actual events and current topics. This best practice has been identified in Ireland and the United Kingdom.

These best practices provide guidance for a more systematic approach regarding the application of the principle of proportionality as well as for ensuring consistent and effective supervisory practice within NCAs.

EIOPA NCA KFH

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The IFRS 9 Impairment Model and its Interaction with the Basel Framework

In the wake of the 2008 financial crisis, the International Accounting Standards Board (IASB) in cooperation with the Financial Accounting Standards Board (FASB) launched a project to address the weaknesses of both International Accounting Standard (IAS) 39 and the US generally accepted accounting principles (GAAP), which had been the international standards for determining financial assets and liabilities accounting in financial statements since 2001.

By July 2014, the IASB finalized and published its new International Financial Reporting Standard (IFRS) 9 methodology, to be implemented by January 1, 2018 (with the standard available for early adoption). IFRS 9 will cover financial organizations across Europe, the Middle East, Asia, Africa, Oceana, and the Americas (excluding the US). For financial assets that fall within the scope of the IFRS 9 impairment approach, the impairment accounting expresses a financial asset’s expected credit loss as the projected present value of the estimated cash shortfalls over the expected life of the asset. Expected losses may be considered on either a 12-month or lifetime basis, depending on the level of credit risk associated with the asset, and should be reassessed at each reporting date. The projected value is then recognized in the profit and loss (P&L) statement.

Most banks subject to IFRS 9 are also subject to Basel III Accord capital requirements and, to calculate credit risk-weighted assets, use either standardized or internal ratings-based approaches. The new IFRS 9 provisions will impact the P&L that in turn needs to be reflected in the calculation for impairment provisions for regulatory capital. The infrastructure to calculate and report on expected loss drivers of capital adequacy is already in place. The data, models, and processes used today in the Basel framework can in some instances be used for IFRS 9 provision modeling, albeit with significant adjustments. Not surprisingly, a Moody’s Analytics survey conducted with 28 banks found that more than 40% of respondents planned to integrate IFRS 9 requirements into their Basel infrastructure.

Arguably the biggest change brought by IFRS 9 is incorporation of credit risk data into an accounting and therefore financial reporting process. Essentially, a new kind of interaction between finance and risk functions at the organization level is needed, and these functions will in turn impact data management processes. The implementation of the IFRS 9 impairment model challenges the way risk and finance data analytics are defined, used, and governed throughout an institution. IFRS 9 is not the only driver of this change.

Basel Committee recommendations, European Banking Authority (EBA) guidelines and consultation papers, and specific supervisory exercises, such as stress testing and Internal Capital Adequacy Assessment Process (ICAAP), are forcing firms to consider a more data-driven and forward-looking approach in risk management and financial reporting.

Accounting and Risk Management: An Organization and Cultural Perspective

The implementation of IFRS 9 processes that touch on both finance and risk functions creates the need to take into account differences in culture, as well as often different understandings of the concept of loss in the two functions.

  • The finance function is focused on product (i.e., internal reporting based on internal data) and is driven by accounting standards.
  • The risk function, however, is focused on the counterparty (i.e., probability of default) and is driven by a different set of regulations and guidelines.

This difference in focus leads the two functions to adopt these differing approaches when dealing with impairment:

  • The risk function uses a stochastic approach to model losses, and a database to store data and run the calculations.
  • Finance uses arithmetical operations to report the expected/ incurred losses on the P&L, and uses decentralized data to populate reporting templates.

In other words, finance is driven by economics, and risk by statistical analysis. Thus, the concept of loss differs between teams or groups: A finance team views it as part of a process and analyzes loss in isolation from other variables, while the risk team sees loss as absolute and objectively observable with an aggregated view.

IFRS 9 requires a cross-functional approach, highlighting the need to reconcile risk and finance methodologies.

The data from finance in combination with the credit risk models from risk should drive the process.

  • The risk function runs the impairment calculation, whilst providing objective, independent, and challenger views (risk has no P&L or bonus-driven incentive) to the business assumptions.
  • Finance supports the process by providing data and qualitative overlay.

Credit Risk Modeling and IFRS 9 Impairment Model

Considering concurrent requirements across a range of regulatory guidelines, such as stress testing, and reporting requirements, such as common reporting (COREP) and financial reporting (FINREP), the challenge around the IFRS 9 impairment model is two-fold:

  • Models: How to harness the current Basel-prescribed credit risk models to make them compliant with the IFRS 9 impairment model.
  • Data: How (and whether) the data captured for Basel capital calculation can be used to model expected credit losses under IFRS 9.

IFRS9 Basel3

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