PRUDENTIAL SUPERVISION OF THE NON-BANK FINANCIAL MARKET OF UKRAINE IN THE CONTEXT OF IMPLEMENTING THE EU ACQUIS: PAYMENT SERVICES AND INSURANCE

Abstract

The article examines the legal problems of introducing risk-based prudential supervision of the non-bank financial market of Ukraine in two segments – payment services and insurance – through the prism of implementing the EU acquis. It is substantiated that the problem lies neither in the absence of a risk-based approach to supervision as such, nor in a complete lack of statutory grounding of its principles, but in the asymmetry and incompleteness of such grounding: the principle of proportionality combined with a risk-based approach is enshrined in Article 21 of the Law of Ukraine ’On Financial Services and Financial Companies’, whereas the special Law of Ukraine ’On Payment Services’ contains no dedicated provision on the principles of supervisory activity, and the proportionality requirement is framed as a principle of the regulator’s conduct rather than as a limit on the scope and intensity of a specific supervisory measure – unlike Article 23(1) of Directive (EU) 2015/2366 (PSD2). Two further elements are identified as currently missing for the practical realisation of the principle of proportionality: a formalised methodology for assessing the regulatory burden, which would make it possible to correlate the scope of supervisory requirements with the risk level of a particular provider, and a procedural instrument enabling a supervised entity to challenge the disproportionality of a specific supervisory measure separately from challenging the regulator’s decision on the merits. It is emphasised that the benchmark for the national legislator should be not only the current wording of PSD2, but also the architecture of the PSD3/PSR package, the adoption of which is expected in 2026. In the insurance sector, the Austrian (Versicherungsaufsichtsgesetz 2016, FMA) and Polish (Act on insurance and reinsurance activity of 11 September 2015, KNF) supervisory models are analysed in their connection with Articles 29, 34(4), 36 and 45 of Directive 2009/138/EC, taking into account its revision by Directive (EU) 2025/2 and the introduction of Directive (EU) 2025/1 (IRRD). The authors put forward a proposal to distinguish in legislation between the insurer’s own (bottom-up) stress testing, which is already a mandatory element of the risk management system, and supervisory (top-down) stress testing based on a single market-wide scenario, modelled on the EU-wide EIOPA exercises, which is currently absent from Ukrainian legislation. The directions of digital operational resilience and sustainable finance are examined separately, and the need for direct correlation of national documents with Regulation (EU) 2022/2554 (DORA), Regulations (EU) 2020/852 and (EU) 2019/2088 and Directive (EU) 2022/2464 is demonstrated, as well as the state of harmonisation of the non-state pension provision segment with Directive (EU) 2016/2341 (IORP II). It is concluded that the implementation of the relevant EU acquis acts is a prerequisite for ensuring the financial stability and financial security of the state.