IE
S.I. No. 142/1991 - European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations, 1991.
Table of Provisions (26)
Statutory Text (26 Articles)
1. Gross premiums for the last underwriting year.
2. Gross claims in the last underwriting year (including reserve at the end of underwriting year).
3. Commission costs.
4. Gross underwriting result.
GIVEN under my Official Seal, this 12th day of June, 1991.
DESMOND O'MALLEY,
Minister for Industry and Commerce.
EXPLANATORY NOTE.
These Regulations give effect to the Second non-life insurance services Directive which facilitates the right of EC insurance undertakings to underwrite certain insurance risks without necessarily having to become established, and in respect of certain categories of policyholders, without having to obtain a separate authorisation in the Member state where the risk is situated.
The Regulations amend the European Communities (non-life insurance) Regulations, 1976 by allowing insurance undertakings to underwrite, throughout the Community, large risks insurance business, as defined, on the basis of home country supervisory control. In the case of the underwriting of these types of insurance risks, a separate authorisation will not be required by the Minister for Industry and Commerce. For mass risks business, that is insurance cover for private individuals or commercial organisations who do not qualify as a large risk, the insurance undertaking must obtain an authorisation from the Minister.
5. Where a claim is assessed in a currency which is known to the insurer in advance but which is different from the currency resulting from application of the above procedures, the insurers may consider their commitments to be payable in that currency.
6. The Member States may authorize undertakings not to cover their technical reserves by matching assets if application of the above procedures would result in the undertaking — whether head office or branch — being obliged in order to comply with the matching principle, to hold assets in a currency amounting to not more than 7 per cent of the assets existing in other currencies.
However
(
a
) in the case of technical reserves assets to be matched in Greek drachmas, Irish pounds and Portuguese escudos, this amount shall not exceed
— 1 million ECU during a transitional period ending 31 December 1992,
— 2 million ECU from 1 January 1993 to 31 December 1998;
(
b
) in the case of technical reserve assets to be matched in Belgian francs, Luxembourg francs and Spanish pesetas, this amount shall not exceed 2 million ECU during a transitional period ending 31 December 1996.
From the end of the transitional periods defined under (a) and (b), the general regime shall apply for these currencies, unless the Council decides otherwise.
7. The Member States may choose not to require undertakings — whether head offices or branches — to apply the matching principle where commitments are payable in a currency other than the currency of one of the Community member States, if investments in that currency are regulated, if the currency is subject to transfer restrictions or if, for similar reasons, it is not suitable for covering technical reserves.
8. The Member States may authorize undertakings — whether head offices or branches — not to hold matching assets to cover an amount not exceeding 20 per cent of their commitments in a particular currency.
However, total assets in all currencies combined must be at least equal to total commitments in all currencies combined.
9. Each Member State may provide that, whenever under the preceding procedures a commitment has to be covered by assets expressed in the currency of a member State, this requirement shall also be considered to be satisfied when up to 50 per cent of the assets is expressed in ECU.
F(1) Underwriting account
10. (1) The Principal Regulations are hereby amended by the substitution for Article 22 of the following Article
"Assignment of Policies
11. (1) The law applicable to a contract of insurance which covers risks situated within the State or within other member States shall be determined in accordance with the following provisions
(
a
) Where a policyholder has his habitual residence or central administration within the territory of the member State where the risk is situated, the law applicable to the insurance contract shall be the law of that member State; however where the law of that member State so allows, the parties may choose the law of another country.
(
b
) Where a policyholder does not have his habitual residence or central administration in the member State where the risk is situated, the parties to the insurance contract may choose to apply either the law of the member State in which the risk is situated or the law of the country in which the policyholder has his habitual residence or central administration.
(
c
) Where a policyholder pursues a commercial, industrial or professional activity and where the contract covers two or more risks relating to these activities and situated in different member States, the freedom of choice of the law applicable to the contract extends to the laws of those member States and of the country in which policyholder has his habitual residence or central administration.
(
d
) Notwithstanding paragraphs (b) and (c) of this subarticle, where the member States referred to in those paragraphs grant greater freedom of choice of the law applicable to the contract, the parties may take advantage of this freedom.
(
e
) Notwithstanding paragraphs (a), (b) and (c) of this subarticle, where the risks covered by the contract are limited to events occurring in a member State other than the member State where the risk is situated the parties may always choose the law of the former State.
(
f
) For risks referred to in Article 5 (d) (i) of the first Directive the parties to the contract may choose any law.
(
g
) Notwithstanding paragraphs (a) to (f) of this subarticle, where all the other elements relevant to the situation at the time of the choice are connected with one member State only, nothing shall prejudice the application of the mandatory rules of the law of that member State, from which the law of that member State allows no derogation by means of a contract.
(
h
) (i) The choice of law referred to in the preceding paragraphs of this Article must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case.
(ii) If that is not so, or if no choice has been made, the contract shall be governed by the law of the country, from amongst those considered in the relevant subparagraphs of this Article, with which it is most closely connected.
(iii) Nevertheless, a severable part of the contract which has a closer connection with another country, from amongst those considered in the relevant subparagraphs of this subarticle may by way of exception be governed by the law of that other country. The contract shall be rebuttably presumed to be most closely connected with the member State in which the risk is situated.
(iv) Where a member State includes several territorial units, each of which has its own rules of law concerning contractual obligations, each unit shall be considered as a country for the purposes of identifying the applicable law.
(2) (
a
) Nothing in this Article shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract.
(
b
) Where the law of a member State so stipulates, the mandatory rules of the law of the member State in which the risk is situated or of the member State imposing the obligation to take out insurance may be applied if and in so far as, under the laws of those States, those rules must be applied whatever the law applicable to the contract.
(
c
) Where the contract covers risks situated in more than one member State, the contract is considered for the purposes of applying this paragraph as constituting several contracts each relating to only one member State.
(3) Subject to the preceding subparagraphs of this Article, the laws of the State relating to the general rules of private international law shall be applied to the insurance contracts covered by these Regulations.
Compulsory Insurance
12. In the case of a conflict of law between the law of the member State in which the risk is situated and the law of the member State which is imposing the obligation to take out insurance, the law of the latter shall prevail.
Provision of insurance by way of services
13. (1) References to the carrying on of insurance business by way of services into a member State shall be construed as the covering of a risk situated as defined in Article 2(d) of the second Directive by an undertaking through an establishment situated in another member State.
(2) The subsequent Articles shall not apply to transactions, undertakings and institutions referred to in Article 3 (2) of the Principal Regulations nor to the risks to be covered by the Voluntary Health Insurance Board in accordance with the law of the State.
(3) The provisions of these Regulations relating to the carrying on of insurance by way of services shall not apply to risks of a class specified in the Annex as follows
Class 1 insofar as it relates to accidents at work;
Class 10 except for carriers liability;
Class 12 insofar as it relates to motorboats and boats which, on 30 June 1988, were subject to the same arrangements as land motor vehicles in the member State in which the risk is situated;
Class 13 insofar as it relates to nuclear civil liability and pharmaceutical products liability;
Classes 9 and 13 insofar as they relate to the compulsory insurance of building works.
(4) An insurance undertaking which has an establishment in the State shall not at the same time carry on insurance business in the State from an establishment in another Member State by way of services in respect of risks other than large risks in classes of the Annex for which its establishment in the State has an authorisation.
Carrying on of insurance business by way of services into another member State
14. (1) This Article shall apply to—
(
a
) an undertaking whose head office is situated in the State and which intends to carry on insurance business by way of services into another member State from an establishment in the State or from a branch or agency in another member State;
(
b
) an undertaking whose head office is situated in the territory of another member State which intends to carry on insurance business by way of services into another member State from an establishment in the State.
(2) An undertaking referred to in subarticle (1) of this Article shall send a notification to the Minister containing the following information
(
a
) in respect of each member State in which it intends to carry on insurance business by way of services the nature of the risks which the undertaking proposes to cover;
(
b
) a scheme of operations in accordance with Article 9 or 11 of the first Directive.
(3) (
a
) An undertaking referred to in subarticle (1) (a) of this Article shall apply to the Minister for a certificate attesting that it possesses for its activities as a whole the minimum solvency margin calculated in accordance with Articles 16 and 17 of the first Directive and that the authorisation in accordance with Article 7(1) of the first Directive, enables the undertaking to operate outside the member State of establishment.
(
b
) An undertaking as specified at subarticle (1) (b) of this Article shall apply to the Minister for a certificate indicating the classes of insurance which the undertaking is entitled to carry on through its establishment in the State and attesting that the Minister does not object to the undertaking carrying on insurance business by way of services.
(
c
) Where the Minister decides to refuse an application for the certificates referred to in Articles 15 (1) (a) and 15 (1) (b) of the second Directive, he shall notify his decision to the applicant and shall, in the notification, specify the precise grounds for his decision.
(
d
) An undertaking whose application for the certificates referred to in subparagraphs (a) and (b) of this subarticle has been refused may appeal against the refusal to the High Court.
(
e
) Where an undertaking as specified at subarticle (1) of this Article has notified the Minister of its intention to carry on insurance business by way of services and which intends to extend its activities to other risks, it shall follow the procedures laid down in this Article.
Carrying on of insurance business by way of services into the State
15. (1) An undertaking shall not carry on insurance business by way of services into thte State in respect of the coverage of risks other than large risks unless it is the holder of an authorisation granted by the Minister under this Article and unless it carries on such insurance business by way of services in accordance with the terms of the authorisation.
(2) An undertaking which intends to carry on insurance business by way of services into the State in respect of the coverage of risks other than large risks shall, when applying for an authorisation, submit to the Minister
(
a
) a certificate issued by the supervisory authorities of the member State in whose territory the head office is situated attesting that it possesses for its activities as a whole the minimum solvency margin calculated in accordance with Articles 16 and 17 of the first Directive and that this authorisation in accordance with Article 7 (1) of the first Directive, enables the undertaking to carry on insurance business outside the member State of establishment;
(
b
) a certificate issued by the supervisory authorities of the member State of establishment indicating the classes of insurance which the undertaking is entitled to carry on through that establishment and attesting that those authorities do not object to the undertaking carrying on insurance business by way of services into the State;
(
c
) a scheme of operations containing the following particulars—
(i) the nature of the risks which the undertaking proposes to cover in the State;
(ii) the general and special conditions of the insurance policies which it proposes to use in the State;
(iii) the premium rates which the undertaking envisages applying for each class of business;
(iv) the forms and other printed documents which the undertaking intends to use in its dealings with policyholders in so far as these are required of undertakings established in the State.
(3) The Minister may require that particulars referred to in subarticle (2) (c) are supplied in the English or Irish languages.
(4) The Minister shall, within a period of six months from the date of receipt by him of all the documents referred to in subarticle (2) of this Article, grant or refuse an authorisation on the basis of the compliance or non-compliance of the particulars in the scheme of operations referred to in subarticle (2) (c) of this Article with the laws, regulations and administrative provisions applicable in the State.
(5) Where the Minister has not given a decision at the expiry of the period referred to in subarticle (4) of this Article, the authorisation shall be deemed to be refused.
(6) Where the Minister decides to refuse an application for an authorisation in accordance with this Article, he shall notify his decision to the applicant and shall in the notification specify the precise grounds for his decision.
(7) An undertaking whose application for an authorisation in accordance with this Article has been refused may appeal against the refusal to the High Court.
(8) Where an undertaking which carries on insurance business by way of services intends to amend the information required under subarticle (2) (c) of this Article, it shall submit such amendments to the Minister and these amendments shall enter into force in accordance with subarticle (4) of this Article.
(9) Where an undertaking has notified the Minister of its intention to carry on insurance business by way of services into the State and wishes to extend its coverage of risks to large risks, it shall follow the procedures laid down in Article 16 of these Regulations in respect of such risks.
16. (1) An undertaking which intends to carry on insurance business by way of services into the State covering the risks referred to in Article 5 (d) of the first Directive shall provide to the Minister
(
a
) a certificate issued by the supervisory authorities of the member State in whose territory its head office is situated, attesting that it possesses for its activities as a whole the minimum solvency margin calculated in accordance with Articles 16 and 17 of the first Directive and that this undertaking's authorisation in accordance with Article 7 (1) of the first Directive, enables the undertaking to carry on insurance business outside the member State of establishment.
(
b
) a certificate issued by the supervisory authorities of the member State of establishment indicating the classes of insurance which the undertaking is entitled to carry on through that establishment and attesting that those authorities do not object to the undertaking carrying on insurance business by way of services into the State.
(
c
) a statement of the nature of the risks which it proposes to cover in the State.
(2) An undertaking shall not provide insurance by way of services into the State before the date certified as that on which all of the documents referred to in subarticle (1) of this Article are received by the Minister.
(3) Where an undertaking intends to carry on insurance business by way of services into the State in respect of large risks other than those referred to in the statement submitted in accordance with subarticle (1) (c) of this Article, it shall submit such amendments to the Minister and it shall not carry on insurance business by way of services into the State in respect of such risks before the date certified as that on which the written notice of the amendment was received by the Minister in accordance with subarticle (2) of this Article.
(4) Where an undertaking which carries on insurance business by way of services into the state for large risks in accordance with this Article intends to extend its activities to risks other than large risks, it shall follow the procedures laid down in Article 15 of these Regulations in respect of such risks.
Powers of Intervention
17. (1) Nothing in these Regulations shall prevent the introduction by the Minister of laws, regulations or administrative provisions concerning in particular the approval of general policy conditions, of forms and other printed documents, of scales of premiums and of any other document necessary for the normal exercise of supervision where the rules of the member State of establishment are not sufficient to achieve the necessary level of protection.
(2) (
a
) Notwithstanding subarticle (1) of this Article, in the case of the coverage of large risks the Minister shall not make provisions requiring approval or systematic notification of general and special policy conditions, scales of premiums, forms and other printed documents which the undertaking intends to use in its dealing with policyholders;
(
b
) In the case of large risks the Minister may require non-systematic notification of general and special policy conditions and other documents for the purposes of verifying compliance with laws, regulations and administrative provisions although this notification may not constitute a prior condition for an undertaking to carry on insurance business in the State.
(3) In the case of large risks the Minister may retain or introduce prior notification or approval of proposed increases in premium rates where such notification or approval is operated as part of a general price control system.
18. (1) Where an undertaking is carrying on insurance business by way of services into the State, it shall submit to the Minister all documents requested of it for the purposes of implementing this Article in so far as an undertaking established in the State is also required to do so.
(2) Where an undertaking carrying on insurance business by way of services into the State does not comply with the Insurance Regulations, the Minister shall request the undertaking to do so.
(3) Where an undertaking fails to comply with the request referred to in subarticle (2) of this Article, the Minister shall inform the supervisory authorities of the member State of establishment and, where appropriate, the supervisory authorities of the member State in which the head office of the undertaking is situated.
(4) (
a
) If after invoking the procedures of subarticles (2) and (3) of this Article, the measures taken against the undertaking carrying on insurance business by way of services into the State are not adequate and the undertaking continues to contravene the Insurance Regulations, the Minister may, after informing the supervisory authorities of the member State of establishment, take further appropriate measures, including in so far as is strictly necessary and in accordance with the Insurance Regulations, the prevention of that undertaking from continuing to carry on insurance business by way of services into the State.
(
b
) Where an undertaking referred to at paragraph (a) of this subarticle covers risks other than large risks, the measures which may be taken by the Minister shall include withdrawal of authorisation in accordance with Article 15 of the second Directive.
(5) Nothing in this Article shall affect the powers of the State to proceed against an undertaking for failing to comply with the laws of the State.
(6) Where an undertaking carrying on insurance business by way of services into the State has contravened the Insurance Regulations and has an establishment or possesses property in the State, the Minister may apply the penalties prescribed by the Insurance Regulations by way of enforcement against the establishment or property of the undertaking in the State.
(7) (
a
) Any measure adopted by the Minister pursuant to subarticles (2) to (6) of this Article shall be communicated to the undertaking and shall be supported by the precise grounds for the adoption of the measure.
(
b
) The undertaking may appeal against any measures adopted pursuant to Articles (2) to (6) of this Article to the High Court.
(
c
) Where the Minister is advised by the member State of establishment of an undertaking which is carrying on insurance business by way of services into the State that measures have been taken against that undertaking under the terms of subarticles (1) and (3) of Article 20 of the first Directive, he may take any further measures which he considers necessary to safeguard the interests of the policyholders.
(
d
) When the member State of establishment of an undertaking which is carrying on insurance business by way of services into the State revokes the authorisation of that undertaking in accordance with Article 22 of the first Directive, the Minister shall take appropriate measures to prevent the undertaking from continuing to carry on insurance business by way of services into the State in accordance with the Insurance Regulations.
(8) (
a
) Where measures have been adopted pursuant to Article 20 of the first Directive against an undertaking established in the State carrying on insurance business by way of services into another member State, the Minister shall inform the supervisory authorities of the member State of provision of services.
(
b
) Where the Minister decides to revoke the authorisation of an undertaking established in the State in accordance with Article 22 of the first Directive he shall inform the supervisory authorities of the member State of provision of services.
(
c
) Where the supervisory authorities of another member State request the Minister to take appropriate measures in relation to the non-compliance with the laws of that state by an undertaking which has an establishment in the State and which is carrying on insurance business by way of services into the former member State, the Minister shall take appropriate measures and the nature of such measures shall be communicated to the supervisory authorities of that member State of provision of services.
General provisions regarding carrying on insurance business by way of services
19. (1) In the event of an undertaking established in the State being wound up, commitments arising from contracts underwritten in the course of carrying on insurance business by way of services shall be met in the same way as those arising under that undertaking's other insurance contracts, without distinction of nationality, as far as the insured and the beneficiaries are concerned.
(2) Where an undertaking carries on insurance business by way of services for risks other than large risks, the undertaking shall inform the policyholder before any commitment is entered into of the member State where the establishment is situated through which the insurance cover is to be granted, which information shall also be included on any document issued to the policyholder.
(3) The contract of insurance or other document granting insurance cover together with the insurance proposal shall specify the address of the establishment granting cover by way of services and the address of the head office of the undertaking.
20. (1) (
a
) An undertaking which carries on insurance business by way of services into another member State through an establishment in the State shall submit to the Minister, in respect of operations effected by way of services, the amount of premiums without deduction of re-insurance by member State and by groups of classes as specified in subarticle 1 (b) of this subarticle.
(
b
) The groups of classes referred to in subarticle 1 (a) of this Article shall be defined as follows
(i) accident and sickness (1 and 2);
(ii) fire and other damage to property (8 and 9);
(iii) aviation, marine and transport (3, 4, 5, 6, 7, 11 and 12);
(iv) general liability (13);
(v) credit and suretyship (14 and 15)
(vi) other classes (16, 17 and 18).
(
c
) The Minister shall forward the information provided in accordance with subarticle 1 (a) of this Article to the supervisory authorities of each of the member States of provision of services.
(2) (
a
) Where an establishment in the State earns in respect of the carrying on of insurance business by way of services into another member State, a volume of premiums, without deduction of re-insurance, exceeding 2,500,000 ECU, it shall keep an underwriting account as specified in section F (1) or F (2) (inserted by Article 25 of these Regulations) of the Schedule to the Principal Regulations by groups of classes as defined in subarticle (1) (b) of this Article in respect of each member State.
(
b
) Where an undertaking whose head office is situated in the State, with all its establishments taken together, earns in respect of the carrying on of insurance business by way of services into another member State, a volume of premiums, without deduction of re-insurance, in excess of 2,500,000 ECU, it shall keep an underwriting account as specified in paragraph (a) in respect of such business for each of that undertaking's establishments and such underwriting account shall be made available to the Minister at his request.
(
c
) The underwriting account referred to in subarticles 2 (a) or 2 (b) of this Article in respect of an undertaking established in the State shall be forwarded to the supervisory authorities of the member State of provision of services on the latter's request.
Technical Reserves Provisions
21. (1) An undertaking which is the holder of an authorisation from the Minister in accordance with Article 15 of the second Directive shall establish and maintain technical reserves relating to its business carried on by way of services under Article 15 of the second Directive in accordance with Article 14 of the Principal Regulations.
(2) An undertaking which carries on insurance business by way of services into another member State through an establishment in the State shall establish and maintain technical reserves relating to its business carried on by way of services in accordance with Article 14 of the Principal Regulations.
(3) Notwithstanding Article 14, subarticle (2) of the Principal Regulations, an undertaking carrying on insurance business by way of services into another member State from an establishment in the State for risks other than large risks shall not be required to localise in the State assets of an amount equal to the technical reserves relating to such business where such assets are required under Article 15 of the second Directive to be localised in that member State of services.
(4) The Minister shall supply to the supervisory authorities of other member States any information necessary to fulfil the requirements of this Article.
22. (1) The Minister shall require undertakings carrying on insurance business by way of services into the State including those undertakings referred to in subarticle 6 (c) of Article 4 of the Principal Regulations to join and participate in any scheme designed to guarantee the payment of insurance claims to policyholders and injured third parties on the same terms as established undertakings.
(2) For the purposes of this Article notwithstanding Article 2 (d) of the Second Directive, the moveable property contained in a building situated in the territory of the State, except for goods in commercial transit, shall be a risk situated in the State, even though the building and its contents are not covered by the same insurance policy.
(3) For the purposes of subarticle (1) of this Article and
section 31
of the
Insurance Act 1989
an insurance undertaking established in another member State carrying on business by way of services into the State in respect of risks situated in the State shall be deemed to be an insurer in the State and such policies issued by it by way of services insurance business into the State shall be deemed to be policies issued in the State.
23. Where reference is made in these Regulations to the ECU, the exchange value to be used with effect from the 31st December of each year shall be the value which applies on the last day of the preceding October for which exchange values for the ECU are available in all Community currencies with the exception of Articles 3, 16 and 17 of the first Directive, where Article 2 of Directive 76/580/EEC
(4)
shall apply.
Community Coinsurance
24. (1) In the case of a risk situated in the State, the provisions of these Regulations regarding large risks shall apply to the leading insurer participating in a Community coinsurance operation.
(2) The European Communities (Coinsurance) Regulations, 1983 are hereby amended by the insertion in Article
(4)O.J. No. L189, 13.7.1976, p.13.4 (1) after "leading insurer who is the holder of an authorisation" the words "granted by a supervisory authority of a member State of the European Communities".
(4)
O.J. No. L189, 13.7.1976, p.13.
(3) The European Communities (Coinsurance) Regulations, 1983 are hereby amended by the deletion of subarticle (2) of Article 4.
(4) The European Communities (Coinsurance) Regulations, 1983 are hereby amended by the deletion of paragraph 2 of the Schedule and by the substitution of the following for paragraph 3 of the Schedule
"The criteria referred to in paragraph 1 (b) of this Schedule are
— The policyholder pursues an independent occupation of a commercial, industrial or professional nature and the risk covered relates to that occupation.
— Large risks as set out in accordance with Article 3A of the Principal Regulations excluding Class 13 insofar as it relates to damage arising from nuclear sources or from medicinal products."
25. Schedule 1 of the Principal Regulations is hereby amended by the insertion, after Section D (inserted by
S. I. No. 5 of 1991
) of Annex 1 and Annex 2 of the second Directive, of the following as Sections E and F of that Schedule
"E. MATCHING RULES
The currency in which the insurer's commitments are payable shall be determined in accordance with the following rules
S.I. No. 142 of 1991.
EUROPEAN COMMUNITIES (NON-LIFE INSURANCE) (AMENDMENT) (NO. 2) REGULATIONS, 1991.
I, DESMOND O'MALLEY, Minister for Industry and Commerce, in exercise of the powers conferred on me by
section 3
of the
European Communities Act, 1972
(No. 27 of 1972), and for the purposes of giving effect to Council Directive No. 88/357/EEC of 22 June, 1988, hereby make the following Regulations