EIOPA guidelines
Level three texts addressed to national supervisors, without direct binding force but subject to the comply-or-explain mechanism, which gives them practical reach close to a rule.
Between a directive stating principles and an on-site inspection judging cases, a layer is missing: what the supervisor concretely expects. The European insurance authority's guidelines supply it. They address not undertakings but national authorities, which have two months to state whether they comply or to explain why they do not, that statement being published. The mechanism produces an effect the text's legal nature does not suggest: an authority declaring compliance folds the guideline into its supervisory practice, so an undertaking departing from it will have to justify itself, even though no binding rule targets it. The confusion is therefore frequent and costly in both directions: treating a guideline as hard law leads to over-application, treating it as mere opinion leads to discovering at inspection that it set the expectation. The useful reference is the compliance table the authority publishes, which states for each guideline which countries comply.
Regulation (EU) 1094/2010 establishes the European Insurance and Occupational Pensions Authority and grounds its power to issue guidelines. Its guidelines on the system of governance, published in 2015 before Solvency II came into application, effectively set the expected content of written policies, key function reports and ORSA, in a level of detail the directive itself nowhere approaches.
EIOPA guidelines, comply or explain, soft law
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