IE
S.I. No. 360/1994 - European Communities (Life Assurance) Framework Regulations, 1994.
Table of Provisions (81)
Statutory Text (81 Articles)
1. Subject to paragraph 2 (1), the supplementary amount in relation to assets of a relevant description held by a dependant of the insurance undertaking shall be determined in accordance with the following formula—
in which—
A is the supplementary amount;
B is the amount by which the value of assets of that description held by the dependant, excluding any life assurance business as of the dependant if it is an insurance undertaking, exceeds the permitted limit applicable to the dependant in relation to those assets;
C is the aggregate of the amount specified in B and of the amounts by which the value of assets of the same description held by other relevant dependants, excluding any life assurance business assets of a dependant which is an insurance undertaking, exceeds respectively the permitted limits applicable to such other relevant dependants in relation to those assets;
D is—
( a ) where the insurance undertaking holds no assets of the same description of the relevant class, the amount of the permitted limit that would be applicable to the insurance undertaking in relation to such assets were it to hold them; and
( b ) where the insurance undertaking holds assets of the same description of the relevant class, the amount by which the permitted limit applicable to the insurance undertaking in relation to those asset the value of those assets.
2. (1) Where for the purpose of determining any supplementary amount in accordance with paragraph 1 the insurance undertaking cannot reasonably ascertain—
(
a
) the value of any asset of a relevant dependant, or
(
b
) the amount of the permitted limit applicable in relation to any asset of a relevant dependant, the asset in question shall be left out of account for that purpose.
(2) In this Part of this Schedule—
"relevant dependant" means—
(
a
) where this Schedule is being applied in relation to the determination of the value of a share in, or debt due or to become due from a dependant of the insurance undertaking which is a life assurance business asset of the insurance undertaking, any dependant of the insurance undertaking—
(i) a share in which, or in any company of which it is a dependant, is a life assurance business asset of the insurance undertaking, or
(ii) from which a debt is due, or will become due, to the insurance undertaking which is a life assurance business asset of that undertaking; and
(
b
) in any other case, any dependant of the insurance undertaking—
(i) a share in which, or in any company of which it is a dependant, is not a life assurance business asset of the insurance undertaking, or
(ii) from which a debt is due, or will become due, to the insurance undertaking which is not a life assurance business asset of that undertaking.
PART 2
Further provisions and modifications of the regulations applicable with respect to the determination of the value of dependants
3. (1) This paragraph applies where, for the purpose of ascertaining the value of the assets of the subject company under Article 40, any determination falls to be made in accordance with the said Article 40 of the value of the assets of a dependant of the insurance undertaking, a share in which, or a debt due or to become due from which, is an asset of the subject company; and references herein to a determination of the value of assets of a dependant to which this paragraph applies are references to any such determination.
(2) Article 4 (4) of Annex V to these Regulations shall not apply with respect to a determination of the value of assets of a dependant to which this paragraph applies.
(3) Where, in the case of a determination of the value of assets of a dependant to which this paragraph applies—
(
a
) the dependant is an insurance undertaking and has assets of a relevant description which are not life assurance business assets or is not an insurance undertaking and has assets of a relevant description,
(
b
) the value of such assets exceeds the permitted limit applicable to the dependant in relation to those assets, and
(
c
) any controller of the dependant has no assets of the same description of the relevant class, or has assets of the same description of the relevant class and their value is less than the permitted limit applicable to that controller in relation to these assets;
then, for the purpose of such determination there shall be added to the permitted limit applicable to the dependant in relation to the assets referred to in sub-paragraph (a) an amount equal to the supplementary amount or, if there is more than one such controller, to the aggregate of the supplementary amounts, determined with respect to any such controller in accordance with Part 1 of this Schedule, subject, where the controller is not the insurance undertaking, to the modifications specified in sub-paragraph (5).
(4) In this paragraph, "a controller" means, in relation to a dependant—
(
a
) the insurance undertaking, and
(
b
) the subject company, if it is an insurance undertaking,
(
c
) a dependant of the insurance undertaking which is an insurance undertaking and of which the subject company is a dependant.
(5) Where sub-paragraph (3) is being applied in relation to a controller other than the insurance undertaking—
(
a
) Part 1 of this Schedule, as applied in accordance with the said sub-paragraph (3), shall have effect as if, for the reference to the insurance undertaking, there were substituted references to the controller, and
(
b
) the references to assets being of a relevant class in the said sub-paragraph (3) and in Part 1 of this Schedule, as so applied, shall be construed as referring to life assurance business assets of the controller, if the said sub-paragraph (3) is being applied in connection with the determination of the value of a life assurance business asset of the controller, and to assets which are not life assurance business assets of the controller, in any other case.
4. The modifications of these Regulations applicable (in addition to that specified in paragraph 3 (2), with respect to the determination of the value of the assets of the subject company where it is not an insurance undertaking are as follows—
(
a
) these Regulations shall apply to the subject company as if it were an insurance undertaking and its assets were being valued for the purpose specified in Article 2 (1) of Annex V to these Regulations, and
(
b
) Article 14 (1) of Annex V to these Regulations shall not apply.
5. In this Schedule—
"subject company" means the dependant of the insurance undertaking the value of whose assets is being determined in accordance with Article 4 (2) or (3) (as the case may be) of Annex V to these Regulations.
SCHEDULE 7
Assets to be taken into account only to a specified extent
Part I
PART II
PART III
SCHEDULE 7
PART IV
6. When the date on which the annuity was due to commence has passed but the annuity has not commenced and the cash option hs not been taken, the basis on which the cash option and annuity have been included shall be stated.
DEFERRED ANNUITIES WITHOUT GUARANTEED CASH OPTIONS
Form 34
Name of Undertaking
Global business/Irish business/EC business/Other
Financial year ended
OB/IB
Instructions for completion of Form 34
7. Any contract which consists of a combination of different types of insurance shall be treated as a number of separate contracts each dealing with one of the different types of insurance so combined and the amount by which the total number of contracts shown in column 4 of any valuation summary exceeds the actual number of contracts to which that valuation summary relates shall be stated
Provided that, in relation to any category of such combined contract, any types of insurance included in the combination which in the aggregate account for less than 10 per cent. of the total mathematical reserves under that category of contract need not be separately distinguished.
8. Non-linked contracts the nature of which or the method of valuation of which makes it impossible or inappropriate to give the information required in columns 7 to 11 of Form 25 shall be shown separately and the reason for the impossibility or the inappropriateness stated.
9. Linked contracts the nature of which or the method of valuation of which makes it impossible or inappropriate to give the information in the exact form required by Form 26 shall be shown on a separate valuation summary with appropriately modified column headings and the reason for the modification stated.
10. Contracts of any description may be grouped together under a "miscellaneous" heading provided that mathematical reserves for business shown under all such headings in any one valuation summary do not exceed 5 per cent. of the total mathematical reserves for all business shown in that valuation summary.
11. Contracts with deferred participation in profits and contracts with an option to convert to another category of contract shall be included in the category in which they fall at the date to which the investigation relates.
12. Contracts on more than one life may be included with single life contracts.
13. Contracts subject to limited premiums may be included with contracts under which premiums are payable throughout.
14. Life annuities guaranteed for a term certain or which provide for a refund of the balance of the purchase money on early death may be included with other life annuities.
15. In the case of contracts with variable benefits the benefits shall be taken as at the date to which the investigation relates and, where such benefits are included as approximate amounts only, that fact shall be stated.
16. In relation to group deferred annuity contracts under which premiums have not ceased, a statement of how the amount of annual office premiums has been arrived at shall be given.
17. Where for group life and pension schemes the mathematical reserves at the valuation date are based on those in respect of the business in force at the last scheme revision date, any adjustment on account of changes after that date shall be shown separately.
18. In this Schedule, a company is connected with another company if it is—
(
a
) a subsidiary of that other company, or
(
b
) a holding company of that other company, or
(
c
) a subsidiary of the holding company of that other company.
19. In this Schedule, a debt is fully secured on land if the amount that would be realised on the sale of that land at a price equal to the most recent proper valuation of that land would (after deducting the reasonable expenses of sale) be sufficient to enable that debt (and any other obligation secured on that land which has priority to or ranks equally with that debt) to be discharged in full.
GIVEN under my Official Seal, this 29th day of November, 1994.
CHARLIE McCREEVY,
Minister for Enterprise and
Employment
EXPLANATORY NOTE.
These Regulations give effect to the Third Life Assurance Framework Directive (92/96/EEC-O.J. No. L360/1) which institutes a single authorisation system of supervision of insurance undertakings operating throughout the European Communities whereby insurance undertakings transacting business on either a cross-border or branch basis will be subject to overall supervisory control of the supervisory authority where their head offices are located. The Regulations also implement relevant provisions of the Second life assurance freedom of services Directive (90/619/EEC-O.J. No. L330).
The Regulations require life assurance undertakings to submit statutory returns to the Minister for Enterprise and Employment in the format set out in the Schedules to these Regulations. They also require an actuarial investigation to be carried out annually and introduce revised rules for the valuation of underwriting liabilities and assets and revised requirements for localisation of assets and the treatment of reinsurance. The regulations provide that any significant increase or decrease in shareholdings in an insurance undertaking will be notified in advance to the Minister.
The Regulations introduce a mandatory fifteen-day "cooling-off" period for policyholders taking out most types of life assurance. The Regulations also introduce disclosure requirements for insurers obliging them to furnish information about the insurance company as well as information about the commitment and pertinent changes during the term of the insurance contract.
The Regulations contain provisions which oblige insurance undertakings to comply with the general good requirements of the State as specified.
The Regulations also provide for reciprocity measures regarding life assurance activities in Third countries.
These Regulations have the effect of amending or modifying certain provisions of the Insurance Acts, 1909 to 1990 and previous Regulations made under the
European Communities Act, 1972
.
20. Separate statements of the results of the valuation in the form set out in Form 28 in respect of each separate fund or part of a fund for which a surplus is determined under Article 15 of these Regulations.
21. Separate statements of the required minimum solvency margin for life assurance business in the form set out in Form 30.
22. (
a
) Subject to sub-paragraph (b), a separate statement of the required solvency margin for supplementary insurance in the form set out in Form 29;
(
b
) Form 29 need not be completed if the gross annual office premiums for supplementary insurance in force on the valuation date do not exceed 1 per cent. of the gross annual office premiums in force on that date for all life assurance business, provided it can be stated that the entry in line 10 of Form 30 exceeds the amount that would be obtained if Form 29 were to be completed. In this circumstance, the method of estimating the entry in line 10 of Form 30, together with a statement of the gross annual office premiums in force at the valuation date in respect of supplementary insurance, shall be given.
[N.B. In any year when a statement of life assurance business is prepared it shall be sufficient
(
a
) instead of giving the full information required by paragraphs 3 and 4, to refer to the previous abstract when full information in respect of the category of contract was last given, that is if full information in respect of every category of contract was given in that abstract, and
(
b
) instead of giving the full information required by paragraph 5, to state whether changes have been made since the previous abstract when full information was last given, that is if full information of the general principles and methods adopted in the valuation was given in that abstract.]
VALUATION SUMMARY OF NON-LINKED CONTRACTS
Form 25
Name of Undertaking
Global business/Irish business/EC business/Other
Financial year ended
Fund/Part of fund
OB/IB
Group
Excess
VALUATION SUMMARY OF LINKED CONTRACTS
Form 26
Name of Undertaking
Global business/Irish business/EC business/Other
Financial year ended
Fund/Part of fund
OB/IB
Instructions for completion of Forms 25 and 26
23. Annual accounts.
24. Contents and form of accounts.
25. Revenue account.
26. Additional information.
27. Profit and loss account.
28. Balance sheet.
29. Periodic actuarial investigation.
30. Signature of documents.
31. Audit and auditor's report.
32. Certificates.
33. Transitional provisions.
34. General: References to Community deposit undertaking.
PART 3
Assignment of Policies, Failure to Comply with Technical Reserves Provisions including Mathematical Reserves, Withdrawal/Lapse of Authorisation
35. Assignment of policies.
36. Failure to comply with technical reserves provisions including mathematical reserves.
37. Withdrawal/lapse of authorisation.
38. Provisions applying in the case of revocation.
39. Reasons for revocation.
PART 4
Qualifying Holdings, Obligation of Professional Secrecy/Exchanges of Confidential Information
40. Qualifying holdings.
41. Obligation of professional secrecy/exchanges of confidential information.
PART 5
Choice of Law, General Good Requirements, Notification of Documents, Policyholder Disclosure, Cancellation Rights
42. Law applicable to insurance contracts.
43. General good requirements.
44. Notification of documents/scales of premiums.
45. Policyholder disclosure rules/cancellation rights.
PART 6
Right of Establishment, Freedom to Provide Services, General Conditions, Prevention of Irregularities
46. Provisions related to right of establishment of a branch outside the State.
47. Amendment to branch information.
48. Conditions for establishing a branch in the State.
49. Amendment to branch information.
50. Conditions for carrying on insurance business by way of services into another Member State.
51. Conditions for carrying on insurance business by way of services into the State.
52. Amendment to services information.
53. General conditions related to services and branch insurance business.
54. Prevention of irregularities.
PART 7
Advertising, Winding-up, Statistical Requirements
55. Advertising.
56. Winding-up.
57. Statistical information.
58. Statistical requirement regarding services and branch insurance business.
59. Statistical information in the general good.
PART 8
Fiscal Arrangements, Acquired Rights, Right of Appeal
60. Fiscal arrangements.
61. Acquired rights.
62. Right of appeal to Court.
PART 9
Provisions Related to Branches of Third Country Insurance Undertakings, Rules Applicable to the Assignment of Third Country Branch Policies, Penalties, Fees
63. Third country branch provisions.
64. Application for authorisation.
65. Conditions of admission.
66. Technical reserves including mathematical reserves.
67. Solvency margin.
68. Guarantee Fund.
69. Annual returns.
70. Advances under Article 30 of the First Directive.
71. Application of Articles 36 and 37.
72. Assignment of third country branch insurance policies.
73. Penalties.
74. Fees.
PART 10
Reciprocity Provisions, Interpretation of Sections 93 and 94 of the
Insurance Act, 1936
75. Application of articles 75 to 79 to third country undertakings and acquisitions by such undertakings.
76. Definitions.
77. Notification to the Commission of authorisations and acquisitions of undertakings governed by the laws of a third country.
78. Notification to the Commission of difficulties encountered in establishing or carrying on business in a third country.
79. Reciprocity measures.
80. Interpretation of Sections 93 and 94 of the Insurance Act, 1936.
ANNEXES
Annex I
Defined classes of insurance.
Annex II
Solvency margin and guarantee fund.
Annex III
Policyholder information.
Annex IV
Determination of liabilities.
Annex V
Valuation of assets.
Annex VI
Implicit items.
Annex VII
Reinsurance, currency matching, localisation, documents of title.
SCHEDULES
Schedule 1
Summary of accounts to be completed annually (forms 1 to 24).
Schedule 2
Forms of account and additional information (forms 1 to 21).
Schedule 3
Certificates by auditors, directors and actuary (forms 22 to 24).
Schedule 4
Abstract of life assurance business by the appointed actuary (forms 25 to 30).
Schedule 5
Statement of life assurance business by the appointed actuary (forms 31 to 44).
Schedule 6
Value of dependants.
Schedule 7
Assets to be taken into account only to a specified extent.
S.I. No. 360 of 1994.
EUROPEAN COMMUNITIES (LIFE ASSURANCE) FRAMEWORK REGULATIONS, 1994.
I, CHARLIE McCREEVY, Minister for Enterprise and Employment, in exercise of the powers conferred on me by
section 3
of the
European Communities Act, 1972
(No. 27 of 1972), as amended by the
European Communities (Amendment) Act, 1993
(No. 25 of 1993), and for the purpose of giving effect to Council Directive No. 79/267/EEC of 5 March, 1979, Council Directive No. 90/619/EEC of 8 November, 1990, and Council Directive No. 92/96/EEC of 10 November, 1992, hereby make the following Regulations
PART 1
Citation and Commencement, Interpretation, Scope and Taking up the Business of Life Assurance.
1 Citation and commencement.
1.
(1) These Regulations may be cited as the European Communities (Life Assurance) Framework Regulations, 1994, and shall come into operation on the 8th day of December, 1994. However, the provisions of these Regulations affecting the annual returns to be made to the Minister in accordance with Article 13 of these Regulations shall apply in respect of every financial year beginning on or after the 1st day of January, 1995.
(2) These Regulations and the Insurance Acts, 1909 to 2990, Regulations relating to insurance business made under those Acts and Regulations made under the
European Communities Act, 1972
, may be cited together as the Insurance Acts and Regulations and shall be construed together as one.
2 Interpretation.
2.
(1) In these Regulations, except where the context otherwise requires,—
"appointed actuary" means the person appointed to act as actuary to an undertaking to carry out any function relating to the business of that undertaking which is required by the Insurance Acts and Regulations to be undertaken by an actuary, being a Fellow Member of the Society of Actuaries in Ireland;
"authorisation" means—
(
a
) authorisation granted by the Minister under these Regulations or under the Regulations of 1984 and still in force, or
(
b
) where the context otherwise requires, authorisation granted by the authority charged by law with the duty of supervising the activities of insurance undertakings in a Member State other than the State in accordance with Article 6 of the First Directive as inserted by Article 3 of the Directive;
"branch" means an agency or branch of an insurance undertaking or any permanent presence of an undertaking in the State even if that presence does not take the form of an agency or branch but consists merely of an office managed by the insurance undertaking's own staff or by a person who is independent but has permanent authority to act for the insurance undertaking in the same way as an agency;
"capital at risk" means the amount payable on the happening of the insured event less the mathematical reserve in respect of the relevant contracts;
"carrying on insurance business by way of establishment" means the covering of a commitment by an insurance undertaking in a Member State through a head office or branch situated in that State;
"carrying on insurance business by way of services" means the covering of a commitment by an insurance undertaking in a Member State through a head office or branch situated in another Member State;
"cede" and "cession" in relation to reinsurance, include retrocede and retrocession;
"charges for management" means amounts chargeable in respect of the management of an internal linked fund in accordance with the conditions of those contracts of insurance under which property linked benefits are linked to the value of the fund or units of the fund;
"claim" means a claim against an insurance undertaking under a contract of insurance;
"claims payable" means the amount due to be paid by an undertaking during a financial year in respect of claims whether or not paid during that year;
"commission payable" means, in relation to a financial year of an insurance undertaking, the amount, whether or not paid during that year, recorded during that year as due to intermediaries and cedents in respect of the inception, amendment or renewal of contracts of insurance;
"commitment" means a commitment represented by one of the kinds of insurance or operations referred to in Article 1 of the First Directive;
"Community deposit undertaking" means a life assurance undertaking whose head office is not situated in the territory of another Member State and whose required Community minimum solvency margin is supervised in another Member State in accordance with Article 30 of the First Directive;
"contract of insurance" includes a contract of reinsurance;
" the Court" means the High Court;
"deposit back arrangement" in relation to any contract of reinsurance means an arrangement whereby an amount is deposited by the reinsurer with the cedent;
"designated assets" has the meaning assigned to it in Article 2 (16) of Annex V to these Regulations;
"direction" means a direction issued by the Minister in accordance with Article 3;
"the Directive" means Council Directive 92/96/EEC
(1)
;
"external branch undertaking" means a life assurance undertaking whose head office is not situated in the territory of a Member State and which is not a Community deposit undertaking or an Irish deposit undertaking;
"financial year" means, in relation to an undertaking, the period in respect of which the accounts of the undertaking are made up, whether the period is a year or not;
"the First Directive" means Council Directive 79/267/EEC
(2)
;
"general good" shall be construed in accordance with Article 43;
"gross premiums" in relation to a financial year—
(
a
) means premiums after deduction of discounts, refunds, and rebates of premium but before deduction of premiums for reinsurance ceded and of commission payable by an undertaking, and
(
b
) includes premiums receivable by the undertaking under reinsurance contracts accepted by the undertaking;
"home Member State" means the Member State in which the head office of the insurance undertaking covering the commitment is situated;
"implicit items" has the meaning assigned to it in Annex VI (1) to these Regulations;
"industrial assurance business" has the meaning assigned to it by
Section 3
of the
Insurance Act, 1936
(No. 45 of 1936), as amended by the
Insurance Act, 1989
(No. 3 of 1989);
"insurance" includes "assurance";
"insurance broker", "insurance agent" and
(1)
O.J. L360, 9.12.1992, pages 1-27.
(2)
O.J. L63, 13.3.1979, page 1.
"insurance intermediary" have the meanings assigned to them in
Section 2
of the
Insurance Act, 1989
;
"insurance undertaking" or "undertaking" means—
(
a
) for the purpose of carrying on insurance business in the State by way of establishment, the holder of an authorisation under these Regulations or, as the case may be, the holder of an authorisation under Article 27 of the First Directive;
(
b
) for the purpose of carrying on insurance business by way of services, the holder of an authorisation under these Regulations or, as the case may be, under Article 6 of the First Directive as inserted by Article 3 of the Directive;
"internal linked fund" means an account to which an insurance undertaking appropriates certain linked assets and which may be sub-divided into units the value of which is determined by the undertaking by reference to the value of those linked assets;
"Irish deposit undertaking" means a life assurance undertaking whose head office is not situated in the territory of another Member State and whose required community minimum solvency margin is supervised in the State in accordance with Article 30 of the First Directive;
"Irish head office insurance undertaking" means a life assurance undertaking whose head office is in the State;
"life assurance" means insurance of a class specified at a reference number in Part A of Annex 1 to these Regulations;
"life assurance business assets" and "life assurance business liabilities" mean respectively assets of a life assurance undertaking which are, for the time being, identified as representing the life assurance fund or funds maintained by the undertaking in respect of its life assurance business and liabilities of the insurance undertaking which are attributable to its life assurance business;
"life assurance liabilities" means liabilities of a life assurance undertaking arising under or in connection with contracts for life assurance business including liabilities arising from deposit back arrangements;
"linked assets" means life assurance business assets of an insurance undertaking which are, for the time being, identified in the records of the insurance undertaking as being assets by reference to the value of which property linked benefits are to be determined;
"linked contract" means a contract falling within Class III of life assurance business as specified in Annex I to these Regulations, and "non-linked contract" shall be construed accordingly;
"management expenses" means expenses incurred in the administration of an undertaking or its business which are not commission payable;
"mathematical reserves" means the provision made by a life assurance undertaking to cover liabilities (excluding liabilities which have fallen due and liabilities arising from deposit back arrangements) arising under or in connection with contracts for life assurance business;
"Member State" means a Member State of the European Communities;
"Member State of the branch" means the Member State in which the branch covering the commitment is situated;
"Member State of the commitment" means the Member State where the policyholder has his habitual residence, or, if the policyholder is a legal person, the Member State where the latter's establishment, to which the contract relates, is situated;
"Member State of the provision of services" means the Member State of the commitment, as defined in Article 2 (e) of the Second Directive, where the commitment is covered by an insurance undertaking or a branch situated in another Member State;
"Minister" means the Minister for Enterprise and Employment;
"permanent health contracts" means the business of effecting and carrying out contracts of insurance providing specified benefits against risks of persons becoming incapacitated in consequence of sustaining injury as a result of an accident or of an accident of a specified class or of a sickness or infirmity, being contracts that—
(
a
) are expressed to be in effect for a period of not less than five years or until normal retirement age for the persons concerned, or without limit of time, and
(
b
) either
(i) are not expressed to be terminable by the insurance undertaking under the terms of the contract, or
(ii) are expressed to be so terminable only in special circumstances mentioned in the contract,
provided that the insurance is carried on by an insurance undertaking in the State which holds an authorisation granted in respect of Class IV in Annex I to these Regulations;
"person," "body," "undertaking" and "insurance undertaking" or "assurance undertaking" include any legal entity specified in Article 5 of the Directive; "premiums" includes the consideration for the granting of an annuity;
"premiums receivable" means—
(
a
) in the case of a linked contract the liability under which has been valued on the basis of premiums actually received by the insurance undertaking in a financial year, the amount of premiums received in respect of that contract, and
(
b
) in any other case, the premiums recorded in the insurance undertaking's books, in respect of a financial year as due to it in respect of contracts commencing in earlier financial years but not accounted for in the insurance undertaking's revenue account prior to that financial year, whether or not received by the insurance undertaking during that financial year after deducting discounts, refunds and rebates of premiums as recorded in respect of the same period; and for the purpose of determining whether a premium is due no account shall be taken of any credit arrangements made in respect thereof;
"profit and loss account" in relation to an insurance undertaking not trading for profit, means an income and expenditure account;
"property linked benefits" means benefits provided for under any contract the effecting of which constitutes the carrying on of life assurance business, and which are determined by reference to the value of, or the income from, property of any description (whether or not specified in the contract) or by reference to fluctuations in, or an index of, the value of property of any description (whether or not specified in the contract);
"receivable" in relation to income during a financial year, means, unless otherwise specified, such amounts as become due to the undertaking, whether or not received by the insurance undertaking during that year, including (where appropriate) income which has accrued;
"the Regulations of 1984" means the European Communities (Life Assurance) Regulations, 1984 (
S.I. No. 57 of 1984
);
"the Regulations of 1986" means the European Communities (Life Assurance Accounts, Statements and Valuations) Regulations, 1986 (
S.I. No. 437 of 1986
);
"reinsurance" includes reassurance;
"reinsurance" and "reinsurer" include retrocession and retrocessionaire, respectively;
"reinsurance premiums payable" means the premiums recorded in an insurance undertaking's books during a financial year as due by it to reinsurers in respect of reinsurance contracts commencing in the year or reinsurance contracts commencing in earlier financial years but not accounted for in the undertaking's revenue account prior to that financial year, whether or not paid by the insurance undertaking during that financial year, after deducting discounts, refunds and rebates of premiums as recorded in the same period, and for the purpose of determining whether a premium is due no account shall be taken of any credit arrangement made in respect thereof;
"required minimum solvency margin" means the greater of the appropriate required solvency margin and the amount of the appropriate minimum guarantee fund and "required Community minimum solvency margin" and "required Irish minimum solvency margin" shall be construed accordingly;
"the Second Directive" means Council Directive 90/619/EEC
(3)
;
"supervisory authority" means, in respect of any territory, the authority charged by law with the duty of supervising the activities of undertakings in that territory;
"unit of account" means the ECU used by the European Monetary Co-operation Fund, the conversion value of which, to the currency of the State, shall be, as from 31 December of each year, the rate published in the Official Journal of the Communities for the last day of the preceding October for which conversion values of the ECU were published for the currencies of all States that were then Member States;
"the valuation date" in relation to an actuarial investigation, means the date to which the investigation relates;
"zillmerising" means the method known by the name for modifying the net premium reserve method of valuing a life assurance policy by increasing the part of the future premiums for which credit is taken so as to allow for initial expenses.
(2) In these Regulations, a reference to a Part, Article, Annex or Schedule is to a Part, Article, Annex or Schedule of these Regulations and a reference to a paragraph is to the paragraph of the Article in which the reference occurs, unless it is indicated that reference to some other provision is intended and a reference to a numbered Form is to the Form as numbered in a Schedule.
(3)
O.J. L330, 29.11.1990, page 50.
(3) Subject to these Regulations, the provisions of the Insurance Acts and Regulations shall, where applicable and subject to any necessary modifications, apply to all insurance undertakings to which these Regulations relate.
(4) In these Regulations a reference to any enactment, Council Directive, order or Regulation includes reference thereto as subsequently amended.
(5) These Regulations shall have effect, any provision to the contrary in any enactment, order or Regulation passed or made before the making of these Regulations notwithstanding.
3 Technical adjustments.
3.
(1) The Minister may by direction give effect to any technical adjustment adopted in accordance with Article 47 of the Directive subject to such conditions as may be specified from time to time by the Minister.
(2) The Minister may issue a direction in writing modifying any requirement of these Regulations or of the Annexes or Schedules in the special circumstances of the case, provided that the direction does not conflict with any provision of the First Directive, the Second Directive or the Directive.
4 Scope.
4.
(1) Subject to sub-article (2) of this Article, these Regulations apply to insurance business ("life assurance") of the classes specified in Part A of Annex I and to undertakings carrying on such insurance.
(2) These Regulations do not apply to—
(
a
) the kinds of insurance specified in Articles 2 (1) and 2 (4) of the First Directive;
(
b
) the operations specified in Articles 2 (2) and 2 (3) of the First Directive;
(
c
) the organisations and mutual associations excluded from the application of the First Directive by Article 3 thereof;
(
d
) the bodies referred to in Article 4 of the First Directive.
5 Powers of Court.
5.
The Court shall have full jurisdiction to deal with any application, appeal or other proceeding before the Court in accordance with any provision of these Regulations and may for this purpose make any interim, interlocutory, mandatory, prohibitory or injunctive or ancillary order as the Court may consider necessary or appropriate for the purposes of these Regulations.
6 Authorisation/omposite insurance undertakings.
6.
(1) An insurance undertaking shall not carry on the business of life assurance unless it is the holder of an authorisation.
(2) An authorisation shall be valid throughout the Member States and shall allow an undertaking to carry on insurance business there by way of services and by way of establishment.
(3) For the purposes of the Insurance Acts and Regulations, an insurance undertaking shall be deemed to be or to have been established in the State if—
(
a
) it has in the State an office which is open during normal business hours for the transaction of life assurance business for which it is authorised, and
(
b
) it employs at such office persons duly qualified to carry on the business transacted and empowered to issue cover for the authorised classes and to settle claims.
(4) No insurance undertaking, whose head office is situated in the State, may be authorised to carry on both the business of life assurance and the business of non-life insurance of a class referred to in Annex I to the European Communities (Non-Life Insurance) Framework Regulations, 1994.
(5) An undertaking whose head office is situated in the State, and which has financial, commercial or administrative links with an insurance undertaking carrying on insurance of a class referred to in Annex I to the European Communities (Non-Life Insurance) Framework Regulations, 1994, shall provide the Minister, in such form as the Minister sees fit, with information relating to the arrangements under which any apportionment of expenses of management and income has been made between the insurance undertakings and the basis for such arrangements, and shall provide the Minister on request with copies of any agreement or other documents relevant to any such arrangements.
(6) The same shall be required of an insurance undertaking whose head office is situated in the State, which is the holder of an authorisation under the European Communities (Non-Life Insurance) Framework Regulations, 1994, and which has financial, commercial or administrative links with an undertaking carrying on insurance of a class referred to in Annex I to these Regulations.
(7) Where the Minister is satisfied that an undertaking, applying for an authorisation, complies with the appropriate provisions of the Insurance Acts and Regulations, the Minister shall grant that undertaking an authorisation.
(8) An application for an authorisation may be made to the Minister by—
(
a
) any undertaking which has established its head office in the State,
(
b
) any insurance undertaking which is the holder of an authorisation related to a particular class or classes of insurance and which proposes to extend its business to another class or classes of insurance.
(9) An authorisation shall be granted for a class of insurance mentioned at a reference number in Annex I to these Regulations and specified in the authorisation and shall relate to the entire of that class except that, where an applicant for an authorisation desires the authorisation to relate to only part of a class as listed in Annex I to these Regulations, the authorisation shall relate to that part only.
(10) An authorisation may be restricted to industrial assurance business and a body may not carry on industrial assurance business by virtue of an authorisation granted under these Regulations unless the authorisation expressly extends to such business.
(11) The forms of authorisation shall be as specified by the Minister from time to time.
7 Conditions when applying for authorisation.
7.
(1) Any undertaking applying for an authorisation shall comply with the following provisions
(
a
) It shall be a company limited by shares, a company limited by guarantee or an unlimited company within the meaning (in each case) of the Companies Acts, 1963 to 1990, a society registered under the Industrial and Provident Societies Acts, 1893 to 1978, or a Society registered under the Friendly Societies Acts, 1896 to 1977; it may also adopt the form of a European Company (SE) when that has been established.
(
b
) An undertaking set up in any public law form may apply for an authorisation provided such body has as its object insurance operations under conditions equivalent to those under which private law insurance undertakings operate.
(2) The undertaking shall also comply with the following provisions
(
a
) It shall limit its operations to the business provided for in these Regulations and to operations directly arising therefrom, to the exclusion of all other commercial business.
(
b
) It shall submit to the Minister a scheme of operations, in accordance with Article 9 of the First Directive to include particulars or proof concerning—
(i) the nature of the commitments which the undertaking proposes to cover;
(ii) the guiding principles as to reassurance;
(iii) the items constituting the minimum guarantee fund;
(iv) estimates of the costs of setting up the administrative services and the organisation for securing business and the financial resources intended to meet those costs.
(
c
) In addition, for the first three financial years it shall submit to the Minister—
(i) a plan setting out detailed estimates of income and expenditure in respect of direct business, reassurance acceptances and reassurance cessions;
(ii) a forecast balance sheet;
(iii) estimates relating to the financial resources intended to cover its underwriting liabilities and solvency margin.
(
d
) It shall possess the minimum guarantee fund referred to in Part B of Annex II to these Regulations.
(
e
) It shall be effectively run by persons of good repute with appropriate professional qualifications or experience.
(3) An insurance undertaking applying for an authorisation to extend its business to other classes of insurance or to extend an authorisation covering only part of a class as listed in Annex I to these Regulations shall—
(
a
) submit to the Minister a scheme of operations in accordance with the provisions contained in Article 7 (2) (
b
) of these Regulations in relation to such other classes of insurance or such extension of authorisation, and
(
b
) prove to the satisfaction of the Minister that it possesses the solvency margin in accordance with the provisions of Part A of Annex II to these Regulations and, the minimum guarantee fund referred to in Part B of Annex II to these Regulations.
8 Notification of conditions and documents.
8.
(1) Notwithstanding sub-articles (2) and (3) of this Article, the Minister shall not require the prior approval or systematic notification of general and special policy conditions, scales of premiums, technical bases used in particular for calculating scales of premiums and technical reserves, forms and other printed documents which an insurance undertaking intends to use in its dealings with policyholders. The Minister may, however, require notification of such general and special policy conditions, scales of premiums, technical bases, forms and other aforementioned printed documents.
(2) The Minister may, for the sole purpose of verifying compliance with the rules concerning actuarial principles, require systematic notification of the technical bases used for calculating scales of premiums and technical reserves, provided that requirement does not constitute a prior condition for an insurance undertaking to carry on insurance business in the State.
(3) Nothing in these Regulations shall prevent the introduction by the Minister of regulations or administrative provisions concerning the approval of the memorandum and articles of association of an insurance undertaking and communication of documents necessary for the normal exercise of supervision.
9 Identities of shareholders.
9.
(1) The Minister shall not grant an authorisation to an undertaking before being informed of the identities of the shareholders or persons who have qualifying holdings, whether direct or indirect, in that undertaking and of the amounts of such holdings.
(2) The Minister shall not grant an authorisation if, after taking into account the requirement to ensure the sound and prudent management of an undertaking, the Minister is not satisfied as to the qualifications of such shareholders or persons.
(3) The Minister may require information concerning all such shareholders or persons irrespective of the size of their holding and any person concerned shall on request furnish information to the Minister.
(4) For the purpose of this Article—
a "qualifying holding" means a direct or indirect holding in an undertaking which represents 10 per cent. or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of the undertaking in which a holding subsists.
PART 2
Financial Supervision, Technical Reserves Provisions, Annual Returns, Accounts and Investigations, Statements, Audit and Auditor's Report, Certificates
10 Financial supervision of insurance undertaking.
10.
(1) The financial supervision of an insurance undertaking, including the carrying on of insurance business either by way of services or through branches, shall be the sole responsibility of the home Member State.
(2) Where the head office of the insurance undertaking is situated in the State the Minister shall be responsible for verification with respect to the insurance undertaking's entire business, of its state of solvency, of the establishment and maintenance of technical reserves, including mathematical reserves, in accordance with the Insurance Acts and Regulations.
(3) Every insurance undertaking shall have administrative and accounting procedures and internal control mechanisms which in the opinion of the Minister are sound and adequate.
Transactions with a related company.
(4) Prior to entering into any transaction of a material nature with a related company or companies, including, in particular, the provision of loans to and acceptance of loans from a related company or companies, an insurance undertaking shall submit to the Minister a draft copy of any contract or agreement which is to be entered into by the insurance undertaking in relation to the transaction.
(5) In this Article—
"related company" has the meaning assigned to it by Annex V to these Regulations.
11 On the spot verification.
11.
(1) Where an insurance undertaking whose head office is situated in the State carries on insurance business through a branch situated in another Member State, the Minister may, after having informed the supervisory authorities of the Member State of the branch, carry out on-the-spot verification of the information required to ensure the financial supervision of the insurance undertaking.
(2) The supervisory authorities of the Member State of the branch may participate in such verification where the law of the Member State of the branch so allows.
(3) Where an insurance undertaking whose head office is situated in another Member State carries on insurance business through a branch situated in the State, the Minister shall, after having been informed by the supervisory authorities of that Member State, allow the supervisory authorities of the head office Member State to carry out on-the-spot verification of the information required to ensure the financial supervision of the insurance undertaking.
(4) The Minister may, in order to ensure compliance with this Article, provide for participation in such verification by the appointment of authorised officers under the Insurance Acts and Regulations.
(5) The Minister may, in addition, seek such information as required regarding insurance contracts which are effected through or held by intermediaries and any person concerned shall provide such information to the Minister.
12 Maintenance/etermination of technical reserves, including mathematical reserves, solvency margin, determination of liabilities, localisation of assets, currency matching, register of assets.
12.
(1) Each insurance undertaking shall establish and maintain
(
a
) technical reserves, including mathematical reserves, in respect of all underwriting liabilities assumed by it,
(
b
) an adequate solvency margin and guarantee fund in respect of its entire business in accordance with Annex II to these Regulations.
(2) Subject to the provisions of Annex IV to these Regulations relating to the determination of liabilities, the amount of liabilities of an insurance undertaking shall be determined in accordance with generally accepted accounting concepts, bases and policies or other generally accepted methods appropriate for insurance undertakings.
(3) In determining under sub-articles (1) and (2) of this Article the amount of liabilities of an insurance undertaking, all contingent and prospective liabilities shall be taken into account but not liabilities in respect of share capital.
(4) Each insurance undertaking shall cover its technical reserves by equivalent assets valued in accordance with the Rules set out in Annex V to these Regulations. The currency matching Rules set out in Annex VII to these Regulations shall apply to such assets, as appropriate.
(5) Detailed rules related to the localisation of assets and the maintenance of assets in relation to reinsurance arrangements are set out in Annex VII to these Regulations.
(6) Every insurance undertaking shall keep a register showing the assets representing the technical reserves, including mathematical reserves, required by these Regulations in respect of insurance business carried on in the State in each class by the insurance undertaking and shall furnish to the Minister a certificate of the value of these assets on the closing date for which the accounts and balance sheets of the insurance undertaking are furnished to the Minister, such values being those in such accounts and balance sheets.
(7) The register shall be maintained at the principal office of the insurance undertaking in the State and shall contain up-to-date details of the assets representing reserves in respect of life assurance business carried on in the State.
(8) The register shall be open for inspection by an officer or officers of the Minister during normal business hours.
13 Annual returns, statistical documents.
13.
(1) An insurance undertaking, whose head office is situated in the State shall furnish to the Minister annually or at such more frequent intervals as the Minister may request such information in such form and manner as the Minister may require, together with statistical documents which are deemed necessary for supervision purposes and in particular in order to verify the state of solvency of the undertaking with respect to its entire business.
(2) For the purposes of sub-article (1) of this Article, the insurance undertaking shall, in addition, furnish to the Minister annually, or at such more frequent intervals as the Minister may request, such information in such form and manner as the Minister may require in order to enable the Minister to verify that the technical reserves, including mathematical reserves, mentioned in Article 12 of these Regulations are being maintained.
(3) The Minister shall provide the supervisory authority of another Member State with such information as is necessary for the purposes of supervision.
14 Enforcement of continued compliance with obligations
14.
The Minister shall take all appropriate measures in order to be satisfied that an insurance undertaking is complying or has the ability to continue to comply with its obligations under the Insurance Acts and Regulations and applicable administrative provisions and, in particular, with the scheme of operations referred to in Article 7 (2) (
b
) of these Regulations.
15 Periodic actuarial investigations.
15.
(1) Every insurance undertaking which carries on life assurance business—
(
a
) shall, once in every period of twelve months, cause an investigation to be made into its financial condition in respect of that business by the person who for the time being is its appointed actuary; and
(
b
) when such an investigation has been made, or when at any other time an investigation into the financial condition of the insurance undertaking has been made with a view to the distribution of profits, or the results of which are made public, shall cause an abstract of the actuary's report of the investigation to be made.
(2) An investigation to which sub-article (1) (
b
) of this Article relates shall include—
(
a
) a valuation of the liabilities of the undertaking attributable to its life assurance business; and
(
b
) a determination of any excess over those liabilities of the assets representing the fund or funds maintained by the undertaking in respect of that business and, where any rights of life assurance policyholders to participate in profits relate to particular parts of such a fund, a determination of any excess of assets over liabilities in respect of each of those parts.
(3) The Minister may require, as and when deemed appropriate, that an undertaking to which sub-article (1) of this Article applies shall prepare a statement of its life assurance business in accordance with the requirements of Schedule 5, at the date to which the accounts of the insurance undertaking are made up for the purposes of an investigation in pursuance of subparagraph (
a
) of that paragraph.
(4) For the purposes of any investigation to which this Article applies, the amount of any liabilities and the value of any assets shall be determined in accordance with Annex IV and V, as appropriate.
16 Amount of liabilities and value of assets.
16.
Unless otherwise provided in these Regulations, the amount or value given for a liability or an asset of the insurance undertaking shall be the amount or value of that liability or asset as determined in accordance with the provisions of Annex IV and V to these Regulations as appropriate. In the case of an asset of the insurance undertaking to which Annex V to these Regulations does not apply, the value given shall be the value which the asset would have if Annex V to these Regulations were applicable.
17 Accounts and returns laid before annual general meeting.
17.
(1) Every insurance undertaking shall forward to the Minister each year two copies of the accounts and returns laid before its annual general meeting.
(2) The accounts and returns referred to in sub-article (1) shall be forwarded not later than one month after the annual general meeting.
18 Modification of Insurance Acts in relation to accounts and other documents.
18.
The accounts, balance sheets, notes, statements, reports and certificates set out in Schedules 1 to 5 are in substitution for the accounts, balance sheets, abstracts or statements specified in the Insurance Acts, 1909 to 1990, and in the Regulations of 1986 insofar as they relate to insurance undertakings authorised or deemed to be authorised under the Regulations of 1984.
19 Deposit of documents with Minister.
19.
(1) Every account, balance sheet, note, statement, report and certificate required to be prepared shall be printed and produced in such form or manner as the Minister may require. Five printed copies thereof shall be deposited with the Minister within six months after the close of the period to which the account, balance sheet, note, statement, report or certificate relates: provided that, if in any case it is made to appear to the Minister that the circumstances are such that a period longer than six months should be allowed, the Minister may extend that period by such period not exceeding three months as he thinks fit.
(2) One of the copies of any document deposited under sub-article (1) of this Article shall be signed by the appropriate person or persons described in Article 30.
(3) The Minister shall consider the documents deposited under sub-article (1), and if any such document appears to be inaccurate or incomplete in any respect the Minister shall communicate with the undertaking with a view to the correction of any such inaccuracies and the supply of deficiencies.
(4) There shall be deposited with every revenue account and balance sheet of an insurance undertaking any report on the affairs of the insurance undertaking submitted to the shareholders or policyholders of the undertaking in respect of the financial year to which the revenue account and balance sheet relate.
(5) In these Regulations, any reference to an account or balance sheet includes a reference to any note, statement, report of certificates annexed thereto giving information authorised or required by virtue of Articles 22 to 33 of these Regulations to be so given.
20 Lodging of documents in Companies Office.
20.
Any document submitted to the Minister under these Regulations shall be lodged in the Companies Registration Office and shall there be open to inspection by any person, and copies of such documents may be procured by any person on payment of such fees as the Minister may from time to time fix.
21 Laying of documents before Oireachtas.
21.
The Minister shall, as soon as may be, lay before each House of the Oireachtas copies of any documents deemed necessary to be submitted under these Regulations and may append to such documents any explanatory statement or commentary which the Minister thinks fit.
22 Accounts and statements.
22.
Articles 22 to 33 of these Regulations apply with respect to the accounts and statements (as hereinafter specified) required to be prepared by every insurance undertaking pursuant to Article 13 of these Regulations.
23 Annual accounts.
23.
Every insurance undertaking shall, in respect of each financial year of the insurance undertaking, prepare such of the accounts prescribed in Schedule 1 to these Regulations as are appropriate to the insurance undertaking.
24 Contents and form of account.
24.
Every account, balance sheet, note, statement, report and certificate required to be prepared by an undertaking pursuant to Article 22 shall be prepared in the manner hereinafter specified and shall fairly state the information provided on the basis required by these Regulations.
25 Revenue account.
25.
The revenue account required to be prepared by every insurance undertaking pursuant to Article 23 shall comply with the requirements of Schedule 2 to these Regulations and shall be in Form 1 completed (as may be appropriate) as specified in the instructions to that Form so, however, that—
(i) every such insurance undertaking shall prepare a separate account in Form 1 in respect of each life assurance business fund maintained by it, and
(ii) where there is more than one fund for life assurance business or for industrial assurance business, the insurance undertaking shall also prepare a summary form for life assurance business or for industrial assurance business as the case may require.
26 Additional information.
26.
Every insurance undertaking shall, in accordance with Article 23 and Schedule 2 to these Regulations, including the instructions thereto, prepare—
(
a
) in respect of life assurance business—
(i) Forms 2 to 4 and 6, and
(ii) such of Forms 8 to 14 and 21 as are appropriate; and
(
b
) in respect of industrial assurance business—
(i) Forms 2, 3, 5 and 7 to 9, and
(ii) uch of Forms 10 to 14 and 21 as are appropriate.
27 Profit and loss account.
27.
The profit and loss account required to be prepared by every insurance undertaking under Article 23 shall comply with the requirements of Schedule 2 to these Regulations and shall be prepared in Form 18.
28 Balance sheet.
28.
The balance sheet required to be prepared by every insurance undertaking in accordance with Article 23, shall comply with the requirements of Schedule 2 to these Regulations and shall be in Forms 15 to 17, 19 and 20 completed (as may be appropriate) as specified in the instructions to those Forms.
29 Periodic actuarial investigation.
29.
Save in relation to subparagraph (
a
) (ii) of this paragraph, for the purposes of Article 15, life assurance business and industrial assurance business shall be treated separately and—
(
a
) the abstract of the report of the actuary on life assurance business—
(i) shall comply with the requirements of Schedule 4 to these Regulations and shall contain the information (together with such of Forms 25 to 28 as may be appropriate) specified in that Schedule, and
(ii) except in the case of a Community deposit undertaking, shall also include Form 30 and, where appropriate, Form 29; and
(
b
) the statement of life assurance business shall comply with the requirements of Schedule 5 and shall contain the information (together with Forms 31 to 44) specified in that Schedule.
30 Signature of documents.
30.
(1) One of the copies of any document required to be prepared in accordance with Articles 22 to 33, except an auditor's report, shall be signed by persons described in sub-articles (2) or (3).
(2) In respect of any document relating to business carried on through an Irish head office undertaking, the copy shall be signed by—
(
a
) in any case—
(i) where there are more than two directors of the insurance undertaking, at least two of those directors and, where there are not more than two directors, all the directors; and
(ii) the chief executive, if any, of the insurance undertaking or (if there is no chief executive) the secretary; and
(
b
) in the case of an abstract or statement under Article 15, the actuary who made the investigation to which the abstract relates or by reference to which the statement was prepared.
(3) In respect of any document relating to business carried on through an agency or branch in the State by a Community deposit undertaking or an external branch undertaking or through agencies or branches in any Member State taken together by an Irish deposit undertaking, the copy shall be signed by—
(
a
) in any case—
(i) the authorised agent referred to in Article 46 (2) (
d
) and sub-paragraph (
d
) of Article 65 and
(ii) an officer or employee of the insurance undertaking who, either alone or jointly with others, is responsible for the conduct of the whole of the insurance business carried on by the insurance undertaking in the State, and
(
b
) in the case of an abstract or statement under Article 15, the actuary who made the investigation to which the abstract relates or by reference to which the statement was prepared.
(4) One of the copies of any auditor's report shall be a copy signed by the auditor.
31 Audit and auditor's report.
31.
The documents referred to in Articles 25, 26, 27 and 28 and the certificate referred to in Article 32 (
a
), shall be audited by a person duly qualified under the Companies Acts, 1963 to 1990, who shall make a report in Form 22 in accordance with the requirements of Part I of Schedule 3.
32 Certificates.
32.
There shall be annexed to the documents referred to in Articles 25, 26, 27 and 28 of these Regulations
(
a
) a certificate in accordance with the requirements of Part 2 of Schedule 3 and shall be in Form 23 which shall be signed by the persons required by Article 30 to sign the documents to which the certificate relates; and
(
b
) a certificate in accordance with the requirements of Part 3 of Schedule 3 and shall be in Form 24 which shall be signed by the appointed actuary.
33 Transitional provisions.
33.
Any reference in any provision of these Regulations to a document submitted to the Minister or prepared in respect of a financial year of an insurance undertaking which is a financial year of the insurance undertaking preceding that to which these Regulations first apply shall be construed as a reference to the document so submitted or prepared in accordance with the corresponding provisions of the Insurance Acts and Regulations previously in force.
34 General: References to Community deposit undertaking.
34.
(1) In these Regulations, any reference to life assurance business shall, in relation to a Community deposit undertaking, be taken to refer to life assurance business carried on by it through a branch in the State; and accordingly, any reference to, or requirement imposed in respect of the accounts and balance sheets (including any notes, statements, reports and certificates annexed thereto) shall be taken as referring to, or imposing the requirement in respect of business carried on through that branch.
(2) In these Regulations, any reference to life assurance business shall—
(
a
) in relation to an external branch undertaking, be taken to refer to its entire life assurance business and to any life assurance business carried on by it through an agency or branch in the State; and
(
b
) in relation to an Irish deposit undertaking, be taken to refer to its entire life assurance business and to any life assurance business carried on by it through an agency or branch in any Member State;
and accordingly, any reference to, or requirement imposed in respect of, the accounts and balance sheets (including any notes, statements, reports and certificates annexed thereto) relevant to life assurance business shall be taken as referring to or, as the case may be, imposing the requirement in respect of—
(i) accounts prepared in respect of its entire life assurance business, and
(ii) accounts prepared in respect of the life assurance business carried on, in the case of an external branch undertaking, by the branch in the State and, in the case of an Irish deposit undertaking, by the branches in question in the Member State taken together.
PART 3
Assignment of Policies, Failure to Comply with Technical Reserves Provisions including Mathematical Reserves, Withdrawal/Lapse of Authorisation
35 Assignment of policies.
35.
(1) For the purposes of Section 13 of the AssuranceCompanies Act, 1909, and subject to the provisions of
Section 36
of the
Insurance Act, 1989
, and of these Regulations the following provisions shall have effect
(
a
) An assurance undertaking transacting business in the State, proposing to assign all or part of its portfolio of insurance contracts concluded under the right of establishment or freedom to provide service in the State to an insurance undertaking established in the territory of a Member State may apply to the Court, by petition, for an order sanctioning the scheme of assignment.
(
b
) An insurance undertaking whose head office is situated in the State may, after prior consultation with the Minister, assign all or part of its portfolio of insurance policies including insurance business carried on either by way of services or establishment, to an insurance undertaking established in the State or in another Member State. The assignment shall not be effected unless the supervisory authorities of that insurance undertaking or, where appropriate, the supervisory authorities of the Member State referred to in Article 30 of the first Directive, certify that the insurance undertaking possesses the necessary solvency margin after taking the assignment into account.
(
c
) Where a branch, established in another Member State, whose head office is situated in the State, proposes to assign all or part of its portfolio of insurance policies covering insurance business carried on either by way of services or establishment, the Minister shall consult the supervisory authority of the Member State of the branch.
(
d
) An insurance undertaking whose head office is situated in the State may not assign all or part of its portfolio of insurance policies to an undertaking, established in another Member State, whose head office is not situated in the territory of a Member State.
(2) (
a
) In the cases referred to in paragraph (
b
) and (
c
) of sub-article (1) of this Article, the assignment shall not be effected without obtaining the agreement of the supervisory authorities of the Member States of the branch and the supervisory authorities of the Member States of the commitment.
(
b
) Where the supervisory authorities have not given a response indicating consent to or an opinion on the proposed assignment within three months of receiving notification of the assignment, the assignment shall be deemed to be agreed.
(3) Where the Minister is consulted in accordance with Article 11 (3) or (4) of the Directive, the Minister shall have a period of three months from the date of consultation by the supervisory authorities of the home Member State within which to issue a response to those authorities.
(4) Where the Minister has not given a response indicating consent to or an opinion on the proposed assignment at the expiry of the period referred to in sub-article (3) of this Article, the assignment shall be deemed to be agreed.
(5) An assignment effected in accordance with this Article shall be published subject to the provisions of sub-article (1) of this Article by advertisement once in
Iris Oifigiúil
and once in each of two daily newspapers published in the State and published in the Member State where the risk is situated in accordance with the law of that Member State.
(6) An assignment effected in accordance with this Article shall be valid against the policyholders, the insured persons and any other person having rights and obligations arising out of the policies assigned.
36 Failure to comply with technical reserves provisions including mathematical reserves.
36.
(1) Where an insurance undertaking whose head office is situated in the State fails to comply with Article 12 of these Regulations the Minister may, after notifying the supervisory authorities of the Member States in which the commitments underwritten by the insurance undertaking are situated, apply to the Court for an order, which the Court is empowered to make, prohibiting the free disposal of the insurance undertaking's assets.
(2) Where the solvency margin of an insurance undertaking whose head office is situated in the State falls below the minimum amount required in accordance with the provisions of sub-article 2 (ii) of Article 7 of these Regulations the Minister shall require that a plan be submitted by the insurance undertaking for the Minister's approval for the restoration of a sound financial position.
(3) In a case referred to in sub-article (2) of this Article, where it appears to the Minister that the financial situation of the insurance undertaking will deteriorate further, the Minister may apply to the Court for an order, which the Court is empowered to make, restricting or prohibiting the free disposal of the insurance undertaking's assets. In that case, the Minister shall notify the supervisory authorities of the Member States where the insurance undertaking carries on insurance business of this fact and of any order of the Court. The Minister may also request the supervisory authorities of those Member States to take the same measures pursuant to this sub-article.
(4) Where the solvency margin of an insurance undertaking whose head office is situated in the State falls below the guarantee fund referred to in Part B of Annex II to these Regulations, the Minister shall require the insurance undertaking to submit for approval a short-term finance scheme. The Minister may also apply to the Court for an order, which the Court is empowered to make, restricting or prohibiting the free disposal of the assets of the insurance undertaking. In that case, the Minister shall notify the supervisory authorities of the Member States where the insurance undertaking carries on insurance business of this fact and of any order of the Court. The Minister may also request the supervisory authorities of those Member States to take the same measures pursuant to this sub-article.
(5) The Minister may apply to the Court for such further orders as may be necessary in order to safeguard the interests of insured persons, in the cases referred to in sub-articles (1) to (4) of this Article.
(6) Where the head office supervisory authority of an insurance undertaking situated in another Member State requests the Minister to take measures related to the restriction or prohibition of the free disposal of the assets located in the State of the insurance undertaking, the Minister may apply to the Court for an order, which the Court is empowered to make, restricting or prohibiting the free disposal of the assets located in the State of the insurance undertaking.
(7) The Court may make such order for the purposes of this Article as the Court may think fit.
37 Withdrawal/lapse of authorisation.
37.
An authorisation held by an undertaking whose head office is situated in the State may be revoked by the Minister if the Minister is satisfied that the holder—
(
a
) has not used the authorisation for the last twelve months, has expressly renounced the authorisation or has ceased to carry on business covered by the authorisation for more than six months,
(
b
) no longer fulfils the conditions required by the Insurance Acts and Regulations for the granting of an authorisation,
(
c
) has been unable, within the time allowed, to take the measures contained in the restoration plan or finance scheme referred to in Article 36 of these Regulations, or
(
d
) fails seriously in its obligations under the Insurance Acts and Regulations.
38 Provisions applying in the case of revocation.
38.
Where an authorisation is revoked under Article 37 of these Regulations the following provisions shall apply:—
(
a
) the Minister shall notify the revocation to the supervisory authorities of the other Member States in which the undertaking carries on business;
(
b
) the Minister shall, in conjunction with the supervisory authorities of the other Member States in which the undertaking carries on business, apply to the Court for an order, which the Court is empowered to make, restricting the free disposal by the undertaking of its assets in accordance with Articles 36 (1), 36 (3) and 36 (4) of these Regulations;
(
c
) the Minister may take further necessary measures to safeguard the interests of persons insured by the insurance undertaking and may for this purpose apply to this Court for such order as to the Court may seem fit.
39 Reasons for revocation.
39.
Any decision to revoke an authorisation under Article 37 of these Regulations shall be supported by precise reasons and notified to the insurance undertaking in question.
PART 4
Qualifying Holdings, Obligation of Professional Secrecy/Exchanges of Confidential Information
40 Qualifying holdings.
40.
(1) Notwithstanding the provisions of the Companies Acts, 1963 to 1990, any person who proposes to acquire, either directly or indirectly, a qualifying holding in an insurance undertaking, shall first notify the Minister indicating the size of the proposed qualifying holding. Such person shall, in addition, be under an obligation to notify the Minister where it is proposed to increase such qualifying holding so that the percentage level of the voting rights or capital which that person holds reaches or exceeds any of the percentage levels referred to in sub-article (5) of this Article so that the insurance undertaking would become that person's subsidiary.
(2) The Minister shall have a period of three months from the date of notification referred to in sub-article (1) of this Article within which to oppose the proposed acquisition where, in view of the necessity to ensure sound and prudent management of the insurance undertaking in question, the Minister is not satisfied as to the suitability of the person referred to in sub-article (1) of this Article.
(3) Any person who proposes to dispose either directly or indirectly of a qualifying holding in an insurance undertaking, shall first notify the Minister indicating the size of the proposed qualifying holding. Such person shall, in addition, be under an obligation to notify the Minister if it is proposed to decrease such qualifying holding so that any of the percentage levels of the voting rights or capital which that person holds falls below the percentage levels referred to in sub-article (4) of this Article or so that the insurance undertaking would cease to be that person's subsidiary.
(4) The percentage levels referred to in sub-articles (1) and (3) are 20 per cent., 33 per cent. or 50 per cent.
(5) An insurance undertaking which becomes aware of any acquisitions or disposals of holdings in its capital so that such holdings exceed or fall below any of the percentage levels referred to in sub-article (4) of this Article shall inform the Minister of such acquisitions or disposals.
In addition, the insurance undertaking shall, at such times as may be specified by the Minister and at least once a year, notify the Minister of the names of shareholders or members possessing qualifying holdings and the size of such holdings by reference, for example, to information received at annual general meetings of shareholders or members or as a result of compliance with the Companies Acts, 1963 to 1990. The Minister may, at any time, require information concerning all shareholders irrespective of the size of their shareholding.
(6) If the Minister has reason to believe that the control exercised by the person or persons referred to in sub-article (1) of this Article is likely to operate against the prudent and sound management of an insurance undertaking, the Minister may apply to the Court for such order, for the purpose of putting an end to that situation, by way of injunction, suspension of the exercise of the voting rights attaching to the shares held by the shareholders or members in question or otherwise as the Court shall think fit.
(7) The Court, acting under sub-article (6) of this Article, may make such order in relation to the matter as may appear to be necessary.
(8) Sub-article (6) of this Article shall also apply to persons who fail to comply with the notification requirements referred to in sub-article (1) of this Article. If a holding is acquired contrary to the provisions of this Article the Court may, on the application of the Minister, in addition to any other order which it may make, order the suspension of the corresponding voting rights or the nullity of votes cast.
(9) In this Article—
"control" means the relationship between a parent undertaking and a subsidiary, as defined in Article 1 of Council Directive 83/349/EEC, or a similar relationship between any natural or legal person and an undertaking;
"qualifying holding" has the meaning assigned to it by Article 9 (4) of these Regulations.
"parent undertaking" means a parent undertaking as defined in Articles 1 and 2 of Council Directive 83/349/EEC;
"subsidiary" means a subsidiary undertaking as defined in Articles 1 and 2 of Council Directive 83/349/EEC; any subsidiary of a subsidiary undertaking shall also be regarded as a subsidiary of the undertaking which is those undertakings' ultimate parent undertaking.
41 Obligation of professional secrecy/exchanges of confidential information.
41.
(1) Every person to whom this Article is applicable, including auditors and other experts, working or who has worked for or acting or who has acted on behalf of the Minister shall be bound by the obligation of professional secrecy.
(2) The obligation of professional secrecy means that, subject to the succeeding sub-articles of this Article, no confidential information received in the performance of duties may be divulged to any person or authority whatsoever, except in such form as will ensure that individual insurance undertakings cannot be identified, except by order of a Court in criminal proceedings. Nevertheless, where an insurance undertaking has been declared bankrupt or is being compulsorily wound up, confidential information which does not concern third parties involved in attempts to rescue the undertaking may be divulged where ordered by a competent court in civil or commercial proceedings.
(3) Sub-articles (1) and (2) of this Article shall not prevent the competent authorities of Member States from exchanging information in accordance with the Directives applicable to insurance undertakings. Such information when so exchanged shall be subject to the conditions of professional secrecy laid down in these sub-articles.
(4) The Minister may conclude co-operation agreements, providing for exchanges of information, with the competent authorities of third countries only if the information disclosed is subject to guarantees of professional secrecy at least equivalent to those provided for in this Article.
(5) Where the Minister receives confidential information in accordance with sub-articles (1), (2) and (3) of this Article it may be used only—
(
a
) to check that the conditions governing the taking up of the business of insurance are met and to facilitate monitoring of the conduct of such business, especially with regard to the monitoring of technical reserves, solvency margins, administrative and accounting procedures and internal control mechanisms,
(
b
) to impose sanctions, or
(
c
) in court proceedings initiated under Article 62 or under special provisions provided for in Council Directives adopted in the field of insurance undertakings.
(6) Sub-articles (1), (2) and (5) of this Article shall not preclude the exchange of information within the State, where there are two or more competent authorities in the State, or between Member States or between competent authorities and—
(
a
) authorities responsible for the official supervision of credit institutions and other financial organisations and the authorities responsible for the supervision of financial markets,
(
b
) bodies involved in the liquidation and bankruptcy of insurance undertakings and in other similar procedures, and
(
c
) persons responsible for carrying out statutory audits of the accounts of insurance undertakings and other financial institutions,
in the discharge of their supervisory functions, or the disclosure to bodies which administer compulsory winding-up proceedings or guarantee funds of information necessary to the performance of their dutes. The information received by those authorities, bodies and persons shall be subject to the conditions of professional secrecy laid down in sub-articles (1) and (2).
(7) In addition, notwithstanding sub-articles (1), (2) and (5) of this Article, the Minister may in accordance with the law of the State authorise the disclosure of certain information to other authorities responsible for the supervision of credit institutions, financial institutions, investment services and insurance companies and to inspectors acting on behalf of those authorities.
(8) The disclosures may be made only where necessary for reasons of prudential control.
(9) The information received under sub-articles (3) and (6) of this Article and that obtained by means of on-the-spot verification in accordance with Article 11 may never be disclosed in the cases referred to in this sub-article except with the express consent of the competent authorities which disclosed the information or of the competent authorities of the Member State in which on-the-spot verification was carried out.
PART 5
Choice of Law, General Good Requirements, Notification of Documents, Policyholder Disclosure, Cancellation Rights
42 Law applicable to insurance contracts.
42.
(1) The law applicable to a contract of insurance which covers commitments situated within the State or within other Member States shall be determined in accordance with the following provisions
(
a
) The law applicable to insurance contracts shall be the law of the Member State of the commitment. However, where the law of that Member State so allows, the parties may choose the law of another country.
(
b
) Where a policyholder is a natural person whose habitual residence is in a Member State other than that of which the policyholder is a national the parties may choose the law of the Member State of which the policyholder is a national.
(
c
) 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.
(
d
) A Member State in which various territorial units have their own rules of law concerning contractual obligations shall not be bound to apply the provisions of these Regulations to conflicts which arise between the laws of those units.
(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 commitment arises in the State, the mandatory rules of the law of the State shall be applied, whatever the law applicable to the contract.
(
c
) Subject to the preceding subparagraphs of this Article, the law of the State relating to the general rules of private international law concerning contractual obligations shall be applied to the insurance contracts covered by these Regulations.
43 General good requirements.
43.
In conformity with the general good in accordance with the laws of the European Communities, an insurance undertaking shall, in particular, comply with the following criteria—
(
a
) the provisions of the
Consumer Information Act, 1978
, applicable to insurance contracts and the marketing and selling of insurance products;
(
b
) the provisions of the
Sale of Goods and Supply of Services Act, 1980
, applicable to insurance contracts and the marketing and selling of insurance products;
(
c
) provisions related to the supervision and regulation of insurance intermediaries under the Insurance Acts and Regulations;
(
d
) provisions contained in consumer credit legislation adopted by the State;
(
e
) any other requirements which the Minister may prescribe by Regulations for the general good, and the Minister in so prescribing may have regard to provisions in Codes of Conduct and Practice related to the marketing and selling of insurance and to the content of insurance proposals.
44 Notification of documents/scales of premiums.
44.
The Minister shall not make provisions requiring the prior approval or systematic notification of general and special policy conditions, scales of premiums, technical bases used in particular for calculating scales of premiums and technical reserves, forms and other printed documents which an insurance undertaking intends to use in its dealing with policyholders. The Minister may, however, require notification of the general and special policy conditions and other documents considered necessary for the purposes of verifying compliance with laws, Regulations and administrative provisions concerning insurance contracts. A notification requirement shall not constitute a prior condition for an insurance undertaking to carry on business in the State.
45 Policyholder disclosure rules/cancellation rights.
45.
(1) An insurance undertaking shall not issue any insurance policy or a copy of an insurance policy in respect of which a proposal has been submitted by a person seeking insurance unless the information set out under Points 1 to 16 in Annex III to these Regulations has already been furnished directly to that person, in writing, in a clear and accurate manner, or the aforesaid information is provided, in the manner prescribed, in conjunction with the cancellation notice referred to in sub-article (3) of this Article and the insurance policy or copy of such insurance policy. In addition, the information set out under Points 17 to 22 in Annex III shall be provided by the insurance undertaking directly to the policyholder during the term of the insurance contract.
(2) The information referred to in sub-article (1) of this Article including the insurance contract documents or copies thereof shall, subject to
section 108
of the
Insurance Act, 1936
, which provides for the issue of documents in the Irish language, be provided in the English language. Where the law applicable to the contract is the law of another Member State, the policyholder may request that the information including such insurance contract documents or copies thereof be provided in the official language or languages of that Member State.
(3) An insurance undertaking shall allow any person seeking insurance who has submitted a proposal in relation to an individual life assurance policy in respect of a commitment referred to in Article 4 of these Regulations and who has received from that undertaking a policy of insurance or a copy of the policy of insurance related to that proposal, a period of fifteen days from the time when it has delivered to that person, or posted to that person directly at the address provided on the proposal form the policy of insurance or a copy thereof within which to serve a notice of cancellation on the insurance undertaking.
(4) The provisions of sub-article (3) of this Article shall not apply in the case of the following—
(
a
) contracts of insurance effected for a term of six months' duration or less;
(
b
) contracts of insurance where none of the proposers or policyholders is an individual;
(
c
) contracts of creditor insurance effected for the purpose of insuring the repayment of a loan and where it is intended that such a contract will be assigned or deposited with the lender;
(
d
) contracts of reinsurance.
(5) Notwithstanding the provisions of sub-article (3) of this Article, in relation to industrial branch insurance business, the insurance undertaking may deliver, by means of its industrial branch agent, a form of notice of cancellation, the insurance policy and any accompanying documents directly to the person seeking an industrial branch policy of insurance. For this purpose, the form of notice of cancellation shall specify that such person has a period of fifteen days from the date of delivery by the industrial branch agent within which to serve the notice on the insurance undertaking.
(6) The conditions and legal effects of cancellation of insurance contracts to which the provisions of this Article apply including any conditions and legal effects regarding the arrangements for informing a person that the insurance contract has been concluded shall be determined in accordance with the applicable contract law provisions contained in Article 42 of these Regulations.
(7) The notice of cancellation referred to in sub-article 3 of this Article shall expressly indicate that the person has withdrawn from the proposed insurance contract.
(8) The giving of notice of cancellation by a person shall have the effect of releasing that person from any future obligation arising from the insurance contract.
(9) For the purposes of sub-article (3) of this Article a notice of cancellation shall be deemed to be served on the insurance undertaking at the time when such notice is posted to an address as specified by the insurance undertaking.
(10) Any sums paid by the person serving the notice of cancellation in connection with the insurance contract shall be refunded in full by the insurance undertaking.
(11) In the case of the serving of notice of cancellation in respect of a single premium life assurance contract, the insurance undertaking may, when the person has withdrawn from the proposed contract, refund the amount of premium paid less any losses incurred by the insurance undertaking as a result of fluctuations in the financial markets during the period of the legal validity of the insurance contract.
PART 6
Right of Establishment, Freedom to Provide Services, General Conditions, Prevention of Irregularities
46 Provisions related to right of establishment of a branch outside the State.
46.
(1) An insurance undertaking with a head office in the State proposing to establish a branch in another Member State shall notify the Minister of its proposal.
(2) The notification referred to in sub-article (1) of this Article shall provide the following information—
(
a
) the Member State within the territory of which the insurance undertaking proposes to establish the branch;
(
b
) a scheme of operations setting out,
inter alia
, the types of business envisaged and the structural organisation of the branch;
(
c
) the address in the Member State of the branch from which documents may be obtained and to which they may be delivered, being the address to which all communications to the authorised agent of the branch are sent;
(
d
) the name of the authorised agent of the branch being a person possessing sufficient powers to bind the insurance undertaking in relation to third parties and to represent it in relations with the authorities and Courts of the Member State of the branch.
(3) The Minister shall, within three months of receipt of all the information referred to in sub-article (2) of this Article, furnish such information to the supervisory authority of the Member State of the branch and the Minister shall notify the insurance undertaking concerned accordingly.
(4) The Minister shall also furnish a certificate attesting (if such be the case) that the insurance undertaking possesses the minimum solvency margin calculated in accordance with Annex II to these Regulations.
(5) Where the Minister has reason—
(
a
) to believe that the administrative structure of the insurance undertaking is inadequate, or the financial situation of the insurance undertaking is inadequate, or
(
b
) to doubt the good repute and professional qualifications or experience of the directors of manager or the authorised agent, taking into account the forecast business plan,
the Minister shall not be required to furnish the information referred to in sub-articles (2) and (3) of this Article to the supervisory authority of the Member State of the branch.
(6) Where the Minister decides to refuse to furnish the information referred to in sub-articles (2) and (3) of this Article to the supervisory authority of the Member State of the branch the Minister shall notify the insurance undertaking of the grounds for such refusal within three months of receipt of all the information in question.
(7) An insurance undertaking may appeal against a refusal or failure to furnish the information in question to the Court.
47 Amendment to branch information.
47.
Where an insurance undertaking established in the State intends to change the information given in respect of Article 46 (2) (
b
), (
c
) or (
d
) of these Regulations, it shall furnish notification of any such change to the Minister and to the supervisory authorities of the Member State of the branch at least one month before making the change in order, having regard to the proposed changes, for the Minister to exercise the Minister's functions in accordance with sub-articles (3), (5), (6) and (7) of Article 46 of these Regulations and for the supervisory authorities of the Member State of the branch to inform the Minister of the conditions under which in the interest of the general good as applied in that Member State, having regard to the proposed changes, the insurance business may be carried on in that State.
48 Conditions for establishing a branch in the State.
48.
Where an insurance undertaking not established in the State intends to carry on insurance business by way of a branch in the State, and where the supervisory authorities of that insurance undertaking have furnished to the Minister the appropriate information referred to in sub-article (2) of Article 46 of these Regulations, including a certificate, attesting that the insurance undertaking possesses the minimum solvency margin calculated in accordance with Annex II to these Regulations, the Minister shall, within two months of receiving the information referred to in this Article, and before the branch commences business, notify the supervisory authority of the home Member State of the conditions under which, in the interest of the general good, the insurance business may be carried on in the State.
49 Amendment to branch information.
49.
Where an insurance undertaking with a branch established in the State intends to change the information given in respect of Article 46 (2) (
b
), (
c
) or (
d
) of these Regulations, it shall furnish a notification of any such change to the Minister at least one month before the change in order that, having regard to the proposed changes, the requirements of Article 48 of these Regulations may be fulfilled.
50 Conditions for carrying on insurance business by way of service into another Member State.
50.
(1) An insurance undertaking established in the State which intends to carry on business by way of services for the first time in one or more other Member States shall send a notification to the Minister indicating the nature of the commitments which the insurance undertaking proposes to cover.
(2) The Minister shall, within one month of the notification provided for in sub-article (1) of this Article, furnish the following information to the supervisory authorities of the Member State or Member States within the territories of which the insurance undertaking intends to carry on insurance business by way of services
(
a
) a certificate attesting (if such be the case) that the insurance undertaking possesses the minimum solvency margin in accordance with Annex II to these Regulations;
(
b
) the classes of insurance which the insurance undertaking has been authorised to offer and
(
c
) the nature of the commitments which the insurance undertaking proposes to cover in each Member State where the insurance undertaking intends to carry on insurance business by way of services.
(3) The Minister shall, at the same time, notify the insurance undertaking concerned accordingly.
(4) The insurance undertaking may commence carrying on insurance business by way of services from the date certified by the Minister of the notification of the information referred to in sub-article (2) of this Article.
(5) Where the Minister refuses to furnish the information referred to in sub-article (2) of this Article within the period laid down, the Minister shall notify the insurance undertaking of the grounds for the refusal within the same period.
51 Conditions for carrying on insurance business by way of service into the State.
51.
(1) An insurance undertaking may carry on insurance business by way of services into the State on or after the date on which the supervisory authority of its home Member State certifies that it has communicated to the Minister the appropriate information referred to in paragraphs (a), (b) and (c) of sub-article (2) of Article 50 of these Regulations.
(2) Where an insurance undertaking intends to carry on insurance business by way of services into the State, the Minister shall, in order to give effect to the provisions contained in Article 43 of these Regulations, notify the supervisory authority of the home Member State of the conditions under which, in the interest of the general good, the insurance business may be carried on in the State.
52 Amendment to services information.
52.
Where the insurance undertaking intends to amend the information provided in accordance with sub-article (1) of Article 50 of these Regulations, it shall be subject to the procedures laid down in accordance with sub-articles (1), (2), (3), (4) and (5) of Article 50 of these Regulations. The insurance undertaking shall also be subject to the procedures laid down in accordance with Article 51 of these Regulations.
53 General conditions related to services and branch insurance business.
53.
(1) The Minister may require the information required to be furnished in respect of an insurance undertaking which carries on business in the State by way of a branch or by way of provision of services to be supplied in the Irish or the English language.
(2) The Minister shall not make provisions requiring the prior approval or systematic notification of general and special policy conditions, scales of premiums, technical bases used in particular for calculating scales of premiums and technical reserves, forms and other printed documents which an insurance undertaking with a branch established in the State or providing services into the State intends to use in its dealings with policyholders.
(3) The Minister may require the non-systematic notification of the general and special policy conditions and other documents necessary for the purposes of verifying compliance with the law (including relevant provisions of these Regulations) concerning insurance contracts. This notification shall not constitute a prior condition for an insurance undertaking to carry on insurance business by way of branch establishment or by way of services into the State.
54 Prevention of irregularities.
54.
(1) Where an insurance undertaking is carrying on insurance business by way of branch establishment or by way of services into the State, it shall submit to the Minister, on request, all documents which the Minister considers necessary for the purposes of implementing this Article insofar as an insurance undertaking with a head office established in the State is also required to do so.
(2) Where an insurance undertaking carrying on insurance business by way of branch establishment or by way of services into the State does not comply with the Insurance Acts and Regulations, the Minister shall by direction require the insurance undertaking to do so.
(3) Where an insurance undertaking fails to comply with a direction referred to in sub-article (2) of this Article, the Minister shall inform the supervisory authorities of the home Member State so that they may take all appropriate measures in accordance with Article 40 (4) of the Directive.
(4) If, after invoking the procedures of sub-article (3) of this Article, the measures taken against the insurance undertaking carrying on insurance business by way of services into the State or by way of branch establishment are, in the opinion of the Minister, not adequate and the insurance undertaking continues to contravene the Insurance Acts and Regulations, the Minister may, after informing the supervisory authorities of the home Member State, apply to the Court for such order as to the Court may seem fit, in order to prevent further infringements of the Insurance Acts and Regulations, including insofar as is necessary and in accordance with the Insurance Acts and Regulations, the prevention of that undertaking from continuing to conclude new insurance contracts within the State.
(5) Nothing in this Article shall affect any other powers of the State to proceed against insurance undertakings transacting business in the State for failing to comply with the laws of the State, including the possibility of preventing insurance undertakings from continuing to conclude new insurance contracts within the State.
(6) Any order of the Court under sub-article (4) or measure adopted by the Minister pursuant to this Article shall be communicated to the insurance undertaking and shall be supported by the precise grounds for the adoption of the measure.
(7) Where the supervisory authorities of another Member State request the Minister to take appropriate measures in accordance with Article 40 (4) of the Directive in relation to failure to comply with the laws of that State by an insurance undertaking established in the State and which is carrying on insurance business by way of services into the former Member State or by way of a branch establishment, the Minister may apply to the Court for an order enforcing such compliance and shall communicate accordingly to the supervisory authorities of the Member State of provision of services or the Member State of the branch.
PART 7
Advertising, Winding-up, Statistical Requirements
55 Advertising.
55.
An insurance undertaking may advertise its services, through all available means of communication, in the State subject to any rules governing the form and content of such advertising adopted in the interest of the general good.
56 Winding-up.
56.
In the event of an insurance undertaking being wound up, commitments arising from contracts underwritten in the course of carrying on insurance business by way of services or through a branch establishment shall be met in the same way as those arising under that insurance undertaking's other insurance contracts, without distinction of nationality, as far as the insured and the beneficiaries are concerned.
57 Statistical information.
57.
(1) An insurance undertaking with its head office in the State shall inform the Minister separately in respect of those transactions effected by it by way of establishment and those effected by it by way of services of the amount of the premiums without deduction of reinsurance, and shall so inform the Minister in respect of each Member State where such transactions are effected and in respect of each of Classes I to VII as defined in Annex I to these Regulations.
(2) The Minister shall forward the information provided in accordance with sub-article (1) of this Article within a reasonable period of time and in aggregate form to the supervisory authorities of each of the Member States which so requests.
58 Statistical requirement regarding services and branch insurance business.
58.
The Minister may request the supervisory authority of the home Member State of an insurance undertaking which carries on insurance in the State by way of services or by way of branch establishment, to submit the appropriate information referred to in sub-article (1) of Article 57 and other appropriate information in order that the statistical needs of the State may be fulfilled.
59 Statistical information in the general good.
59.
The Minister may, in addition, in the interest of the general good, require an insurance undertaking which has its head office in the territory of another Member State and is transacting insurance business in the State to supply such statistical information in such form and manner as the Minister may specify from time to time.
PART 8
Fiscal Arrangements, Acquired Rights, Right of Appeal.
60 Fiscal arrangements.
60.
(1) Every insurance contract for which the commitment is situated in the State shall be subject to the indirect taxes and parafiscal charges on insurance premiums payable under the law of the State.
(2) The law applicable to the contract under the provisions of Article 42 shall not affect sub-article (1) of this Article.
61 Acquired rights.
61.
(1) An insurance undertaking which has commenced business by way of a branch establishment in the State before the coming into operation of provisions adopted in implementing these Regulations shall be presumed to have been subject to the procedure laid down in accordance with Article 10 (1) to (5) of the First Directive.
(2) A branch referred to in sub-article (1) of this Article shall, from the date of entry into force of provisions adopted in implementing these Regulations be subject to the relevant provisions laid down in accordance with these Regulations.
62 Right of appeal to Court.
62.
Any decision, direction, requirement or request given or made by the Minister under these Regulations may, within twenty-one days from the day on which it was notified to the person concerned be appealed to the Court.
PART 9
Provisions Related to Branches of Third Country Insurance Undertakings, Rules Applicable to the Assignment of Third Country Branch Policies, Penalties, Fees
63 Third country branch provisions.
63.
Articles 63 to 72 of these Regulations apply to a life assurance undertaking whose head office is not in a Member State (a "third country undertaking").
64 Application for authorisation.
64.
(1) An application for an authorisation may be made to the Minister by a third country undertaking which proposes to establish a branch in the State.
(2) No insurance undertaking to which Articles 63 to 72 apply may carry on both the business of life assurance and the business of non-life insurance of a class referred to in Annex I to the European Communities (Non-Life Insurance) Framework Regulations, 1994.
(3) A branch of a third country undertaking authorised to undertake life assurance in the State may apply to extend its business to any class of life assurance for which it is not authorised.
65 Conditions of admission.
65.
An insurance undertaking having its head office situated outside the territories of the Member States applying for an authorisation to establish a branch in the State shall fulfil at least the following conditions
(
a
) it is entitled to undertake insurance business under the law of the State where its head office is situated;
(
b
) it establishes a branch in the State;
(
c
) it undertakes to maintain at the place of management of the branch in the State accounts specific to the business which it undertakes in the State and to keep at that place all the records relating to the business transacted in the State;
(
d
) it designates an authorised agent for such purposes as the Minister may require and is approved by the Minister;
(
e
) it possesses in the State assets of an amount equal to at least one-half of the minimum amount required by Article (3) of Part B of Annex II to these Regulations in respect of an undertaking to which that Article applies and deposits with the Court one-fourth of that minimum amount as security;
(
f
) it undertakes to keep a margin of solvency in accordance with Article 67,
(
g
) it submits a scheme of operations in accordance with, insofar as is applicable, Article 7 (2) (
b
) as if it were an insurance undertaking to which that Article applies.
66 Technical reserves including mathematical reserves.
66.
An insurance undertaking authorised under Article 65 of these Regulations shall establish and maintain technical reserves, including mathematical reserves, adequate to cover the underwriting liabilities assumed in the State in accordance with Article 12 of these Regulations.
67 Solvency margin.
67.
(1) Subject to sub-article (2) of this Article, Annex II and Article 36 (2) shall apply to an insurance undertaking to which this Article applies.
(2) In calculating a solvency margin for the purposes of this Article, account shall be taken only of the premiums or contributions and claims pertaining to the business effected by the insurance undertaking in the State or in another Member State, as appropriate.
(3) The assets representing the solvency margin shall be retained in the State up to the amount of the guarantee fund required by Article 68 and any excess shall be retained either in the State or in another Member State.
68 Guarantee Fund.
68.
(1) Subject to sub-article (2) of this Article, Part B of Annex II shall apply to an undertaking to which this Article applies.
(2) The amount of a minimum guarantee fund shall not be less than one-half of the minimum required under Article (3) of Part B of Annex II and the deposit lodged under Article 65 (
e
) shall be reckoned in calculating the amount of a guarantee fund for the purposes of this Article.
69 Annual returns.
69.
Save as provided in Article 71, Article 13 shall, insofar as is applicable, apply to an undertaking to which this Article applies as if the insurance undertaking was one whose head office is situated in the State.
70 Advances under Article 30 of the First Directive.
70.
(1) An undertaking which obtains an authorisation from a Member State and subsequently obtains an authorisation from one or more Member States in respect of a branch may apply to the Minister for the advantages specified in Article 30 of the First Directive which may be granted only jointly.
(2) Article 30 (2) and (3) and (4) of the First Directive shall apply in such a case.
71 Application of Articles 36 and 37.
71.
(1) Articles 36 and 37 shall apply to an insurance undertaking to which this Article applies.
(2) In the case of an undertaking which has, in accordance with Article 70, availed itself of the advantages specified in Article 30 of the First Directive, the references in Articles 35, 36 and 37 of these Regulations to another Member State shall be construed as references to the Member State in which the undertaking in question first commenced to carry on business.
72 Assignment of third country branch insurance policies.
72.
(1) Subject to the provisions of section 13 of the Assurance Companies Act, 1909,
section 36
of the
Insurance Act, 1989
, and these Regulations and following consultation with the Minister, an insurance undertaking to which Part 8 of these Regulations applies may assign all or part of its portfolio of insurance policies in accordance with the following sub-articles of this Article.
(2) Where a branch established in the State, of an insurance undertaking whose head office is not situated in the territory of a Member State, proposes to assign all or part of its portfolio of insurance policies covering insurance business to an assignee established in the State, the assignment shall not be effected unless the assignee possesses the necessary solvency margin after taking the assignment into account or, where appropriate, the supervisory authorities of the Member State referred to in Article 30 of the First Directive certify that the assignee possesses the necessary solvency margin after taking the assignment into account.
(3) Where a branch established in the State, of an insurance undertaking whose head office is not situated in the territory of a Member State, proposes to assign all or part of its portfolio of insurance policies covering insurance business to an assignee with a head office in another Member State, the assignment shall not be effected unless the supervisory authorities of the head office of the Member State certify that the assignee possesses the necessary solvency margin after taking the assignment into account.
(4) A branch established in the State of an insurance undertaking whose head office is not situated in the territory of a member State may not assign all or part of its portfolio of insurance policies covering insurance business to an undertaking, established in another Member State, whose head office is not situated in the territory of a Member State.
(5) In the cases referred to in sub-articles (2) and (3) of this Article, the assignment shall not be affected without the agreement of the supervisory authorities of the Member States in which the commitments are situated if different from the Member State where the branch is established.
(6) Where the supervisory authorities of the Member States in which the commitments are situated have not given a response indicating consent to or an opinion on the proposed assignment to the Minister within three months of receiving notification of the assignment, the assignment shall be deemed to be agreed.
(7) Where the Minister is consulted in accordance with Article 49 (4) and (5) of the Directive, the Minister shall have a period of three months from the date of consultations by the supervisory authorities of the home Member State within which to issue an opinion on or consent to the proposed assignment.
(8) Where the Minister has not given a response indicating an opinion on or consent to the proposed assignment at the expiry of the period referred to in sub-article (7) of this Article, the assignment shall be deemed to be agreed.
(9) An assignment effected in accordance with this Article shall be published by advertisement once in
Iris Oifigiúil
and once in each of two daily newspapers published in the State and published in the Member State where the commitment is situated in accordance with the law of that Member State.
(10) An assignment effected in accordance with this Article shall be valid against the policyholders, the insured persons and any other persons having rights or obligations arising out of the insurance policies assigned.
73 Penalties.
73.
(1) Insurance undertakings and all persons concerned shall comply with these Regulations, including any applicable decision, direction, requirement or request of the Minister thereunder.
(2) A person who fails to comply with any provision of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.
(3) If, after conviction of an offence, a person continues to contravene the provision, that person shall be guilty of an offence on each day on which the contravention continues and shall be liable on summary conviction to a fine not exceeding £1,500 for each such offence.
(4) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of a director, manager, secretary or other officer of the body corporate, the director, manager, secretary or other officer or any person purporting to act in such capacity shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished accordingly.
(5) A prosecution for an offence under these Regulations may be brought by the Minister.
74 Fees.
74.
(1) An application to the Minister for an authorisation under these Regulations shall be in writing and shall, when filled in and completed by or on behalf of the applicant for such authorisation, be sent by post to or left with the Secretary of the Department of Enterprise and Employment and shall be accompanied by—
(
a
) if the application is by an undertaking mentioned in Article 6 (8) (
a
) of these Regulations, a fee of £4,000;
(
b
) if the application is by an insurance undertaking mentioned in Article 6 (8) (
b
) of these Regulations, a fee of £1,000;
(
c
) if the application is by an insurance undertaking mentioned in Article 6 (8) (
a
) of these Regulations which proposes to establish a branch outside the State, a fee of £2,000;
(
d
) if the application is by an undertaking mentioned in Article 64 (1) of these Regulations, a fee of £2,000;
(
e
) if the application is by an undertaking mentioned in Article 64 (3) of these Regulations, a fee of £1,000;
(2) The Minister may, by order, amend any amounts specified in paragraphs (
a
) to (
e
) of sub-article 1 of this Article.
PART 10
Reciprocity Provisions, Interpretation of Sections 93 and 94 of the Insurance Act, 1936
75 Application of articles 75 to 79 to third country undertakings and acquisitions by such undertakings.
75.
Articles 75 to 79 of these Regulations apply to subsidiaries of parent undertakings governed by the laws of a third country and to acquisitions of holdings by such parent undertakings.
76 Definitions.
76.
For the purposes of this Part—
"a third country" means a country which is not a Member State;
"parent undertaking" and "subsidiary" have the meanings assigned to them in Article 40 (9).
77 Notification to the Commission of authorisations and acquisitions of undertakings governed by the laws of a third country.
77.
(1) The Minister shall notify the Commission
(
a
) of any authorisation of a subsidiary, one or more parent undertakings of which are governed by the laws of a third country;
(
b
) whenever such a parent undertaking acquires a holding in a European Communities insurance undertaking which is authorised by the Minister such that the latter would become a subsidiary of the former.
(2) When authorisation is granted to the subsidiary of one or more parent undertakings governed by the law of third countries, the structure of the group shall be specified in the notification which the Minister shall address to the Commission.
78 Notification to the Commission of difficulties encountered in establishing or carrying on business in a third country.
78.
The Minister shall inform the Commission of any general difficulties encountered by insurance undertakings who hold an authorisation granted by the Minister in establishing themselves or carrying on their activities in a third country.
79 Reciprocity measures.
79.
(1) The Minister shall comply with decisions made in accordance with sub-article 4 of Article 32b of Council Directive 79/267/EEC as inserted by Article 9 of the Second Directive, to limit or suspend decisions
(
a
) regarding requests pending at the moment of the decision or future requests for authorisations, and
(
b
) regarding the acquisition of holdings by parent undertakings governed by the laws of the third country in question.
(2) The duration of the measures referred to in sub-article (1) of this Article shall not, subject to sub-article (3) of this Article, exceed three months.
(3) The measures referred to in sub-article (1) of this Article shall be continued where the Council acting on a proposal from the Commission, has decided before the end of the three month period referred to in sub-article (2) of this Article that such measures shall be continued.
(4) The limitations or suspension referred to in sub-article (1) of this Article shall not apply to the setting up of subsidiaries by insurance undertakings or their subsidiaries duly authorised in the European Communities or to the acquisition of holdings in European Communities' undertakings by such undertakings or subsidiaries.
(5) Whenever it appears to the Commission that one of the situations as described in paragraphs 3 and 4 of Article 32b of Council directive 79/267/EEC as inserted by Article 9 of the Second Directive has arisen, the Minister shall inform the Commission, at its request—
(
a
) of any request for the authorisation of a subsidiary, one or more parent undertakings of which are governed by the laws of the third country in question;
(
b
) of any plans for such an undertaking to acquire a holding in a European Communities' insurance undertaking such that the latter would become the subsidiary of the former.
(6) The obligation to provide the information referred to in sub-article (5) of this Article shall lapse once an agreement is concluded with the third country referred to in paragraph 3 or 4 of Article 32b of Council Directive 79/267/EEC as inserted by Article 9 of the Second Directive when the measures referred to in the second or third subparagraph of paragraph 4 of the said Article 32b cease to apply.
(7) Measures taken under this Article shall comply with the obligations of the European Communities under any international agreement, bilateral or multilateral, governing the taking-up and pursuit of the business of insurance undertakings.
80 Interpretation of
Sections 93
and
94
of the
Insurance Act, 1936
.
80.
For the purposes of
sections 93
and
94
of the
Insurance Act, 1936
, and whenever the context so requires, every insurance policy, bond, certificate or other instrument of insurance issued by an insurance undertaking or syndicate carrying on business either by way of services or by way of establishment in respect of risks situated in the State shall be deemed to be issued in the State, and all moneys which become or may become due and payable by such insurance undertaking or syndicate under such insurance policy shall be payable and paid in the State, unless the policy otherwise provides.
ANNEX I
A. Classes of insurance
Class
Description
I
Life assurance and contracts to pay annuities on human life as described in Article 1 (1) (a), (b) and (c) of the First Directive, but excluding contracts within Classes II and III below.
II
Contracts of insurance to provide a sum on marriage or on the birth of a child, being contracts expressed to be in effect for a period of more than one year.
III
The assurances referred to in Article 1 (1) (a) and (b) of the First Directive which are linked to investment funds.
IV
Permanent health insurance as defined in Article 2 of these Regulations.
V
Tontines as described in Article 1 (2) (a) of the First Directive where these are carried on by an undertaking holding an authorisation.
VI
Capital redemption operations as described in Article 1 (2) (b) of the First Directive where these are carried on by an insurance undertaking holding an authorisation.
VII
Management of group pension funds as described in Articles 1 (2) (c) and 1 (2) (d) of the First Directive where these are carried on by an undertaking holding an authorisation.
B. Correspondence between classes of life assurance licensed under the
Insurance Act, 1936
, and the classes set out in this Annex to these Regulations.
(1)
(2)
Classes of business licensed under the
Insurance Act, 1936
.
Equivalent classes of insurance business specified in Schedule I to these Regulations.
Life Assurance
I, II, III, IV, V, VI, VII.
Industrial Assurance
I, II and III insofar as they relate to Industrial Assurance as defined in the
Insurance Act, 1936
.
ANNEX II
PART A
SOLVENCY MARGIN
ARRANGEMENT OF REGULATIONS
PART 1
Citation and Commencement, Interpretation, Scope and Taking up the Business of Life Assurance.
Articles