1992L0049 — EN — 17.11.2000 — 002.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE 92/49/EEC
of 18 June 1992
on the coordination of laws, regulations and administrative provisions relating to direct insurance
other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life
insurance Directive)
(OJ L 228, 11.8.1992, p. 1)
Amended by:
Official Journal
Nopage date
►M1European Parliament and Council Directive 95/26/EC of 29 June 1995 L 168 7 18.7.1995
►M2Directive 2000/64/EC of the European Parliament and of the Council of 7
November 2000 L 290 27 17.11.2000
Corrected by:
►C1Corrigendum, OJ L 311, 14.11.1997, p. 34 (92/49/EEC)
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
▼B
COUNCIL DIRECTIVE 92/49/EEC
of 18 June 1992
on the coordination of laws, regulations and administrative
provisions relating to direct insurance other than life assuranceand amending Directives 73/239/EEC and 88/357/EEC (third non-
life insurance Directive)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 57 (2) and 66 thereof,
Having regard to the proposal from the Commission(1),
In cooperation with the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
(1)Whereas it is necessary toco mplete the internal market in direct
insurance other than life assurance from the point of view both ofthe right of establishment and of the freedom to provide services,to make it easier for insurance undertakings with head offices inthe Community to cover risks situated within the Community;
(2)Whereas the Second Council Directive of 22 June 1988 on thecoordination of laws, regulations and administrative provisionsrelating todirect insurance o ther than life assurance and layingdown provisions to facilitate the effective exercise of freedom toprovide services and amending Directive 72/239/EEC (88/357/
EEC)(
4)has already contributed substantially to the achievement
of the internal market in direct insurance other than life assuranceby granting policyholders who, by virtue of their status, their sizeor the nature of the risks to be insured, do not require specialprotection in the Member State in which a risk is situatedcomplete freedom to avail themselves of the widest possible
insurance market;
(3)Whereas Directive 88/357/EEC therefore represents an important
stage in the merging of national markets into an integrated marketand that stage must be supplemented by other Community
instruments with a view to enabling all policyholders, irrespective
of their status, their size or the nature of the risks to be insured, tohave recourse to any insurer with a head office in the Communitywho carries on business there, under the right of establishment orthe freedom to provide services, while guaranteeing themadequate protection;
(4)Whereas this Directive forms part of the body of Communitylegislation already enacted which includes the First CouncilDirective of 24 July 1973 on the coordination of laws, regulationsand administrative provisions relating to the taking up and pursuit
of the business of direct insurance other than life assurance (73/
239/EEC)(
5) and the Council Directive of 19 December 1991 on
the annual accounts and consolidated accounts of insuranceundertakings (91/674/EEC)(
6);
(5)Whereas the approach adopted consists in bringing about such
harmonization as is essential, necessary and sufficient to achieve
the mutual recognition of authorizations and prudential controlsystems, thereby making it possible to grant a single authorization1992L0049 — EN — 17.11.2000 — 002.001 — 2
(1) OJ NoC 244, 28. 9. 1990, p. 28 and
OJ NoC 93, 13. 4. 1992, p. 1.
(2) OJ NoC 67, 16. 3. 1992, p. 98 and
OJ NoC 150, 15. 6. 1992.
(3) OJ NoC 102, 18. 4. 1991, p. 7.
(4) OJNoL 172, 4. 7.1988,p. 1.Last amended byDirective 90/618/EEC (OJNo
L 330, 29. 11. 1990, p. 44).
(5) OJ NoL 228, 16. 8. 1973, p. 3. Last amended by Directive 88/357/EEC (OJ
NoL 172, 4. 7. 1988, p. 1).
(6) OJ NoL 374, 31. 12. 1991, p. 7.
▼B
valid throughout the Community and apply the principle of
supervision by the home Member State;
(6)Whereas, as a result, the taking up and the pursuit of the businessof insurance are henceforth to be subject to the grant of a singleofficial authorization issued by the competent authorities of theMember State in which an insurance undertaking has its headoffice; whereas such authorization enables an undertaking to carryon business throughout the Community, under the right of
establishment or the freedom to provide services; whereas the
Member State of the branch or of the provision of services mayno longer require insurance undertakings which wish to carry oninsurance business there and which have already been authorizedin their home Member State to seek fresh authorization; whereas
Directives 73/239/EEC and 88/357/EEC should therefore be
amended along those lines;
(7)Whereas the competent authorities of home Member States willhenceforth be responsible for monitoring the financial health ofinsurance undertakings, including their state of solvency, theestablishment of adequate technical provisions and the covering
of those provisions by matching assets;
(8)Whereas certain provisions of this Directive define minimum
standards; whereas a home Member State may lay down stricterrules for insurance undertakings authorized by its own competentauthorities;
(9)Whereas the competent authorities of the Member States musthave at their disposal such means of supervision as are necessaryto ensure the orderly pursuit of business by insurance under-takings throughout the Community whether carried on under theright of establishment or the freedom to provide services;
whereas, in particular, they must be able to introduce appropriate
safeguards or impose sanctions aimed at preventing irregularitiesand infringements of the provisions on insurance supervision;
(10)Whereas the internal market comprises an area without internalfrontiers and involves access to all insurance business other than
life assurance throughout the Community and, hence, the
possibility for any duly authorized insurer to cover any of therisks referred toin the Annex toDirective 73/239/EEC; whereas,to that end, the monopoly enjoyed by certain bodies in certainMember States in respect of the coverage of certain risks must beabolished;
(11)Whereas the provisions on transfers of portfolios must be adaptedto bring them into line with the single authorization systemintroduced by this Directive;
(12)Whereas Directive 91/674/EEC has already effected the necessaryharmonization of the Member States' rules on the technical
provisions which insurers are required to establish to cover their
commitments, and that harmonization makes it possible to grantmutual recognition of those provisions;
(13)Whereas the rules governing the spread, localization andmatching of the assets used to cover technical provisions must
be coordinated in order to facilitate the mutual recognition of
Member States' rules; whereas that coordination must takeaccount of the measures on the liberalization of capital move-ments provided for in the Council Directive of 24 June 1988 forthe implementation of Article 67 of the Treaty (88/361/EEC)(
1)
and the progress made by the Community towards economic and
monetary union;
(14)Whereas, however, the home Member State may not require
insurance undertakings toinvest the assets co vering theirtechnical provisions in particular categories of assets, as such arequirement would be incompatible with the measures on the1992L0049 — EN — 17.11.2000 — 002.001 — 3
(1) OJ NoL 178, 8.7.1988, p. 5.
▼B
liberalization of capital movements provided for in Directive 88/
361/EEC;
(15)Whereas, pending the adoption of a Directive on investmentservices harmonizing inter alia the definition of the concept of
regulated market, for the purposes of this Directive and without
prejudice to such future harmonization that concept must bedefined provisionally; whereas that definition will be replaced bythat harmonized at Community level which will give the homeMember State of the market the responsibilities for these matterswhich this Directive transitionally gives to the insurance under-
taking's home Member State;
(16)Whereas the list of items of which the solvency margin requiredby Directive 73/239/EEC may be made up must be supplemented
to take account of new financial instruments and of the facilitiesgranted to other financial institutions for the constitution of theirown funds;
(17)Whereas within the framework of an integrated insurance marketpolicyholders who, by virtue of their status, their size or thenature of the risks to be insured, do not require special protectionin the Member State in which a risk is situated should be granted
complete freedom to choose the law applicable to their insurance
contracts;
(18)Whereas the harmonization of insurance contract law is not aprior condition for the achievement of the internal market ininsurance; whereas, therefore, the opportunity afforded to theMember States of imposing the application of their law toinsurance contracts covering risks situated within their territories
is likely to provide adequate safeguards for policyholders who
require special protection;
(19)Whereas within the framework of an internal market it is in thepolicyholder's interest that he should have access to the widestpossible range of insurance products available in the Communityso that he can choose that which is best suited to his needs;whereas it is for the Member State in which the risk is situated toensure that there is nothing to prevent the marketing within its
territory of all the insurance products offered for sale in the
Community as long as they do not conflict with the legalprovisions protecting the general good in force in the MemberState in which the risk is situated, and insofar as the general goodis not safeguarded by the rules of the home Member State,
provided that such provisions must be applied without discrimi-
nation to all undertakings operating in that Member State and beobjectively necessary and in proportion to the objective pursued;
(20)Whereas the Member States must be able toensure that theinsurance products and contract documents used, under the rightof establishment or the freedom to provide services, to cover riskssituated within their territories comply with such specific legalprovisions protecting the general good as are applicable; whereas
the systems of supervision to be employed must meet the
requirements of an integrated market but their employment maynot constitute a prior condition for carrying on insurance business;whereas from this standpoint systems for the prior approval ofpolicy conditions do not appear to be justified; whereas it is
therefore necessary to provide for other systems better suited to
the requirements of an internal market which enable everyMember State to guarantee policyholders adequate protection;
(21)Whereas if a policyholder is a natural person, he should beinformed by the insurance undertaking of the law which willapply to the contract and of the arrangements for handlingpolicyholders' complaints concerning contracts;
(22)Whereas in some Member States private or voluntary healthinsurance serves as a partial or complete alternative to healthcover provided for by the social security systems;1992L0049 — EN — 17.11.2000 — 002.001 — 4
▼B
(23)Whereas the nature and social consequences of health insurance
contracts justify the competent authorities of the Member State in
which a risk is situated in requiring systematic notification of thegeneral and special policy conditions in order to verify that suchcontracts are a partial or complete alternative to the health coverprovided by the social security system; whereas such verificationmust not be a prior condition for the marketing of the products;
whereas the particular nature of health insurance, serving as a
partial or complete alternative to the health cover provided by thesocial security system, distinguishes it from other classes ofindemnity insurance and life assurance insofar as it isnecessary toensure that policyholders have effective access to private health
cover or health cover taken out on a voluntary basis regardless of
their age or risk profile;
(24)Whereas to this end some Member States have adopted specificlegal provisions; whereas, to protect the general good, it ispossible to adopt or maintain such legal provisions in so far as
they do not unduly restrict the right of establishment or the
freedom to provide services, it being understood that suchprovisions must apply in an identical manner whatever the homeMember State of the undertaking may be; whereas these legalprovisions may differ in nature according to the conditions ineach Member State; whereas these measures may provide for
open enrolment, rating on a uniform basis according to the type of
policy and lifetime cover; whereas that objective may also beachieved by requiring undertakings offering private health coveror health cover taken out on a voluntary basis to offer standardpolicies in line with the cover provided by statutory social
security schemes at a premium rate at or below a prescribed
maximum and to participate in loss compensation schemes;whereas, as a further possibility, it may be required that thetechnical basis of private health cover or health cover taken outon a voluntary basis be similar to that of life assurance;
(25)Whereas, because of the coordination effected by Directive 73/239/EEC as amended by this Directive, the possibility, afforded tothe Federal Republic of Germany under Article 7 (2) (c) of thesame Directive, of prohibiting the simultaneous transaction ofhealth insurance and other classes is no longer justified and musttherefore be abolished;
(26)Whereas Member States may require any insurance undertakingsoffering compulsory insurance against accidents at work at theirown risk within their territories to comply with the specificprovisions laid down in their national law on such insurance;whereas, however, this requirement may not apply to the
provisions concerning financial supervision, which are the
exclusive responsibility of the home Member State;
(27)Whereas exercise of the right of establishment requires anundertaking tomaintain a permanent presence in the MemberState of the branch; whereas responsibility for the specific
interests of insured persons and victims in the case of third-party
liability motor insurance requires adequate structures in theMember State of the branch for the collection of all the necessaryinformation on compensation claims relating to that risk, withsufficient powers to represent the undertaking vis-à-vis injured
parties who could claim compensation, including powers to pay
such compensation, and to represent the undertaking or, ifnecessary, toarrange fo r it tobe represented in the co urts andbefore the competent authorities of that Member State inconnection with claims for compensation;
(28)Whereas within the framework of the internal market no MemberState may continue to prohibit the simultaneous carrying on ofinsurance business within its territory under the right ofestablishment and the freedom to provide services; whereas theoption granted to Member States in this connection by Directive88/357/EEC should therefore be abolished;1992L0049 — EN — 17.11.2000 — 002.001 — 5
▼B
(29)Whereas provision should be made for a system of penalties to be
imposed when, in the Member State in which a risk is situated, an
insurance undertaking does not comply with those provisionsprotecting the general good that are applicable to it;
(30)Whereas some Member States do not subject insurance transac-tions to any form of indirect taxation, while the majority applyspecial taxes and other forms of contribution, includingsurcharges intended for compensation bodies; whereas the
structures and rates of such taxes and contributions vary
considerably between the Member States in which they areapplied; whereas it is desirable toprevent existing differences'leading to distortions of competition in insurance servicesbetween Member States; whereas, pending subsequent harmoni-zation, application of the tax systems and other forms of
contribution provided for by the Member States in which risks
are situated is likely to remedy that problem and it is for theMember States tomake arrangements toensure that such taxesand contributions are collected;
(31)Whereas technical adjustments tothe detailed rules laid do wn inthis Directive may be necessary fro m time totime totake acco untof the future development of the insurance industry; whereas the
Commission will make such adjustments as and when necessary,
after consulting the Insurance Committee set up by Directive 91/675/EEC(
1), in the exercise of the implementing powers
conferred on it by the Treaty;
(32)Whereas it is necessary to adopt specific provisions intended toensure smooth transition from the legal regime in existence whenthis Directive becomes applicable to the regime that it introduces,
taking care not to place an additional workload on Member States'
competent authorities;
(33)Whereas under Article 8 c of the Treaty account should be takenof the extent of the effort which must be made by certaineconomies at different stages of development; whereas, therefore,transitional arrangements should be adopted for the gradualapplication of this Directive by certain Member States,
HAS ADOPTED THIS DIRECTIVE:
TITLE I
DEFINITIONS AND SCOPE
Article 1
For the purposes of this Directive:
(a)insurance undertaking shall mean an undertaking which has
received official authorization in accordance with Article 6 of
Directive 73/239/EEC;
(b)branchshall mean an agency or branch of an insurance undertaking,
having regard toArticle 3 o f Directive 88/357/EEC;
(c)home Member State shall mean the Member State in which the head
office of the insurance undertaking covering a risk is situated;
(d)Member State of the branch shall mean the Member State in which
the branch covering a risk is situated;
(e)Member State of the provision of services shall mean the Member
State in which a risk is situated, as defined in Article 2 (d) of
Directive 88/357/EEC, if it is covered by an insurance undertakingor a branch situated in another Member State;
(f)controlshall mean the relationship between a parent undertaking
and a subsidiary, as defined in Article 1 of Directive 83/349/EEC(
2),1992L0049 — EN — 17.11.2000 — 002.001 — 6
(1) OJ NoL 374, 31. 12. 1991, p. 32.
(2) OJ NoL 193, 18. 7. 1983, p. 1.
▼B
or a similar relationship between any natural or legal person and an
undertaking;
(g)qualifying holding shall mean a direct or indirect holding in an
undertaking which represents 10 % or more of the capital or of thevoting rights or which makes it possible to exercise a significantinfluence over the management of the undertaking in which a
holding subsists.
For the purposes of this definition, in the context of Articles 8 and
15 and of the other levels of holding referred to in Article 15, the
voting rights referred to in Article 7 of Directive 88/627/EEC(
1)
shall be taken intoacco unt;
(h)parent undertaking shall mean a parent undertaking as defined in
Articles 1 and 2 of Directive 83/349/EEC;
(i)subsidiary shall mean a subsidiary undertaking as defined in Articles
1 and 2 of Directive 83/349/EEC; any subsidiary of a subsidiaryundertaking shall alsobe regarded as a subsidiary o f the undertaking
which is those undertakings' ultimate parent undertaking;
(j)regulated market shall mean a financial market regarded by an
undertaking's home Member State as a regulated market pending the
adoption of a definition in a Directive on investment services and
characterized by:
— regular operation, and
— the fact that regulations issued or approved by the appropriate
authorities define the conditions for the operation of the market,
the conditions for access to the market and, where the Council
Directive of 5 March 1979 coordinating the conditions for theadmission of securities to official stock-exchange listing (79/279/EEC)(
2) applies, the conditions for admission to listing imposed
in that Directive or, where that Directive does not apply, the
conditions to be satisfied by a financial instrument in order to be
effectively dealt in on the market.
For the purposes of this Directive, a regulated market may be
situated in a Member State or in a third country. In the latter event,
the market must be recognized by the home Member State and meetcomparable requirements. Any financial instruments dealt in on thatmarket must be of a quality comparable to that of the instrumentsdealt in on the regulated market or markets of the Member State inquestion;
(k)competent authorities shall mean the national authorities which are
empowered by law or regulation to supervise insurance under-takings;
(l) ‘close links ’ shall mean a situation in which two or more natural or
legal persons are linked by:
(a) ‘participation’, which shall mean the ownership, direct or by
way of control, of 20 % or more of the voting rights or capital ofan undertaking or
(b) ‘control’, which shall mean the relationship between a parent
undertaking and a subsidiary, in all the cases referred toinArticle 1 (1) and (2) of Directive 83/349/EEC(
3), or a similar
relationship between any natural or legal person and anundertaking; any subsidiary undertaking of a subsidiary under-
taking shall also be considered a subsidiary of the parent
undertaking which is at the head of those undertakings.
A situation in which two or more natural or legal persons are
permanently linked to one and the same person by a control1992L0049 — EN — 17.11.2000 — 002.001 — 7
(1) OJ NoL 348, 17. 12. 1988, p. 62.
(2) OJ NoL 66, 13. 3. 1979, p. 21. Last amended by Directive 82/148/EEC (OJ
NoL 62, 5. 3. 1982, p. 22).
(3) OJ NoL 193, 18. 7. 1983, p. 1. Directive as last amended by Directive 90/
605/EEC (OJ NoL 317, 16. 11. 1990, p. 60).▼M1
▼M1
relationship shall also be regarded as constituting a close link
between such persons.
Article 2
1. This Directive shall apply tothe types o f insurance and
undertakings referred toin Article 1 o f Directive 73/239/EEC.
2. This Directive shall apply neither to the types of insurance or
operations, nor to undertakings or institutions to which Directive 73/239/EEC does not apply, nor to the bodies referred to in Article 4 of thatDirective.
Article 3
Notwithstanding Article 2 (2), Member States shall take every step to
ensure that monopolies in respect of the taking up of the business ofcertain classes of insurance, granted to bodies established within theirterritories and referred to in Article 4 of Directive 73/239/EEC, areabolished by 1 July 1994.
TITLE II
THE TAKING UP OF THE BUSINESS OF INSURANCE
Article 4
Article 6 of Directive 73/239/EEC shall be replaced by the following:
‘Article 6
The taking up of the business of direct insurance shall be subject to
prior official authorization.
Such authorization shall be sought from the competent authorities of
the home Member State by:
(a) any undertaking which establishes its head office within the
territory of that State;
(b) any undertaking which, having received the authorization
referred toin the first subparagraph, extends its business toanentire class or to other classes’.
Article 5
Article 7 of Directive 73/239/EEC shall be replaced by the following:
‘Article 7
1. Authorization shall be valid for the entire Community. It shall
permit an undertaking tocarry o n business there, under either theright of establishment or the freedom to provide services.
2. Authorization shall be granted for a particular class of
insurance. It shall cover the entire class, unless the applicant wishesto cover only some of the risks pertaining to that class, as listed inpoint A of the Annex.
However:
(a) Member States may grant authorization for the groups of classes
listed in point B of the Annex, attaching to them the appropriatedenominations specified therein;
(b) authorization granted for one class or a group of classes shall
also be valid for the purpose of covering ancillary risks included
in another class if the conditions imposed in point C of the
Annex are fulfilled’.
Article 6
Article 8 of Directive 72/239/EEC shall be replaced by the following:1992L0049 — EN — 17.11.2000 — 002.001 — 8
▼B
▼B
‘Article 8
1. The home Member State shall require every insurance
undertaking for which authorization is sought to:
(a) adopt one of the following forms:
— in the case of the Kingdom of Belgium: “société anonyme —
naamloze vennootschap”, “société en commandite par
actions — commanditaire vennootschap op aandelen”,“association d'assurance mutuelle — onderlinge verzeker-ingsvereniging”, “société coopérative — coöperatievevennootschap”;
— in the case of the Kingdom of Denmark: “aktieselskaber”,
“gensidige selskaber”;
— in the case of the Federal Republic of Germany: “Aktienge-
sellschaft”, “Versicherungsverein auf Gegenseitigkeit”,
“Öffentlich-rechtliches Wettbewerbsversicherungsunter-nehmen”;
— in the case of the French Republic: “société anonyme”,
“société d'assurance mutuelle”, “institution de prévoyancerégie par le code de la sécurité sociale”, “institution deprévoyance régie par le code rural” and “mutuelles régies par
le code de la mutualité”;
— in the case of Ireland: incorporated companies limited by
shares or by guarantee or unlimited;
— in the case of the Italian Republic: “società per azioni”,
“società cooperativa”, “mutua di assicurazione”;
— in the case of the Grand Duchy of Luxembourg: “société
anonyme”, “société en commandite par actions”, “associa-tion d'assurances mutuelles”, “société coopérative”;
— in the case of the Kingdom of the Netherlands: “naamloze
vennootschap”, “onderlinge waarborgmaatschappij”;
— in the case of the United Kingdom: incorporated companies
limited by shares or by guarantee or unlimited, societiesregistered under the Industrial and Provident Societies Acts,
societies registered under the Friendly Societies Acts, the
association of underwriters known as Lloyd's;
— in the case of the Hellenic Republic: “ ανώνυµη εταιρία ”,
“αλληλασφαλιστικός συνεταιρισµός ”;
— in the case of the Kingdom of Spain: “sociedad anónima”,
“sociedad mutua”, “sociedad cooperativa”;
— in the case ofthe Portuguese Republic: “sociedade anónima”,
“mútua de seguros”.
An insurance undertaking may also adopt the form of a
European Company (SE) when that has been established.
Furthermore, Member States may, where appropriate, set up
undertakings in any public-law form provided that such bodies
have as their objects insurance operations under conditions
equivalent totho se under which private-law undertakingsoperate;
(b) limit its objects to the business of insurance and operations
arising directly therefrom, to the exclusion of all other
commercial business;
(c) submit a scheme of operations in accordance with Article 9;
(d) possess the minimum guarantee fund provided for in Article 17
(2);
(e) be effectively run by persons of good repute with appropriate
professional qualifications or experience.
2. An undertaking seeking authorization to extend its business to
other classes or to extend an authorization covering only some of the
risks pertaining too ne class shall be required tosubmit a scheme o f
operations in accordance with Article 9.
It shall, furthermore, be required to show proof that it possesses the
solvency margin provided for in Article 16 and, if with regard to1992L0049 — EN — 17.11.2000 — 002.001 — 9
▼B
such other classes Article 17 (2) requires a higher minimum
guarantee fund than before, that is possesses that minimum.
3. Nothing in this Directive shall prevent Member States from
maintaining in force or introducing laws, regulations or adminis-trative provisions requiring approval of the memorandum and
articles of association and communication of any other documents
necessary for the normal exercise of supervision.
Member States shall not, however, adopt provisions requiring the
prior approval or systematic notification of general and special
policy conditions, scales of premiums and forms and other printeddocuments which an undertaking intends to use in its dealings withpolicyholders.
Member States may not retain or introduce prior notification or
approval of proposed increases in premium rates except as part ofgeneral price-control systems.
Nothing in this Directive shall prevent Member States from
subjecting undertakings seeking or having obtained authorizationfor class 18 in point A of the Annex to checks on their direct orindirect resources in staff and equipment, including the qualification
of their medical teams and the quality of the equipment available to
such undertakings to meet their commitments arising out of thisclass of insurance.
4. The abovementioned provisions may not require that any
application for authorization be considered in the light of theeconomic requirements of the market’.
Article 7
Article 9 of Directive 73/239/EEC shall be replaced by the following:
‘Article 9
The scheme of operations referred to in Article 8 (1) (c) shall include
particulars or proof concerning:
(a) the nature of the risks which the undertaking proposes to cover;
(b) the guiding principles as toreinsurance;
(c) the items constituting the minimum guarantee fund;
(d) estimates of the costs of setting up the administrative services
and the organization for securing business; the financialresources intended to meet those costs and, if the risks to be
covered are classified in class 18 in point A of the Annex, the
resources at the undertaking's disposal for the provision of theassistance promised
and, in addition, for the first three financial years:
(e) estimates of management expenses other than installation costs,
in particular current general expenses and commissions;
(f) estimates of premiums or contributions and claims;
(g) a forecast balance sheet;
(h) estimates of the financial resources intended to cover under-
writing liabilities and the solvency margin.’
Article 8
The competent authorities of the home Member State shall not grant an
undertaking authorization to take up the business of insurance beforethey have been informed of the identities of the shareholders ormembers, direct or indirect, whether natural or legal persons, who havequalifying holdings in that undertaking and of the amounts of those
holdings.
The same authorities shall refuse authorization if, taking into account the
need to ensure the sound and prudent management of an insuranceundertaking, they are not satisfied as to the qualifications of theshareholders or members.1992L0049 — EN — 17.11.2000 — 002.001 — 10
▼B
TITLE III
HARMONIZATION OF THE CONDITIONS GOVERNING THE BUSI-
NESS OF INSURANCE
Chapter 1
Article 9
Article 13 of Directive 73/239/EEC shall be replaced by the following:
‘Article 13
1. The financial supervision of an insurance undertaking,
including that of the business it carries on either through branchesor under the freedom to provide services, shall be the sole
responsibility of the home Member State.
2. That financial supervision shall include verification, with
respect to the insurance undertaking's entire business, of its state ofsolvency, of the establishment of technical provisions and of the
assets covering them in accordance with the rules laid down or
practices followed in the home Member State under provisionsadopted at Community level.
Where the undertaking in question is authorized to cover the risks
classified in class 18 in point A of the Annex, supervision shallextend to monitoring of the technical resources which the under-taking has at its disposal for the purpose of carrying out theassistance operations it has undertaken to perform, where the law ofthe home Member State provides for the monitoring of such
resources.
3. The competent authorities of the home Member State shall
require every insurance undertaking tohave so und administrative
and accounting procedures and adequate internal control mechan-
isms.’
Article 10
Article 14 of Directive 73/239/EEC shall be replaced by the following:
‘Article 14
The Member State of the branch shall provide that where an
insurance undertaking authorized in another Member State carries onbusiness through a branch the competent authorities of the homeMember State may, after having informed the competent authoritiesof the Member State of the branch, carry out themselves or throughthe intermediary of persons they appoint for that purpose on-the-spot
verification of the information necessary to ensure the financial
supervision of the undertaking. The authorities of the Member Stateof the branch may participate in that verification’.
Article 11
Article 19 (2) and (3) of Directive 73/239/EEC shall be replaced by the
following:
‘2. Member States shall require insurance undertakings with head
offices within their territories to render periodically the returns,together with statistical documents, which are necessary for thepurposes of supervision. The competent authorities shall provide
each other with any documents and information that are useful for
the purposes of supervision.
3. Every Member State shall take all steps necessary toensure
that the competent authorities have the powers and means necessary
for the supervision of the business of insurance undertakings withhead offices within their territories, including business carried onoutwith those territories, in accordance with the Council Directivesgoverning such business and for the purpose of seeing that they areimplemented.1992L0049 — EN — 17.11.2000 — 002.001 — 11
▼B
These powers and means must, in particular, enable the competent
authorities to:
(a) make detailed enquiries regarding an undertaking's situation and
the whole of its business, inter alia, by:
— gathering information or requiring the submission of
documents concerning its insurance business,
— carrying out on-the-spot investigations at the undertaking's
premises;
(b) take any measures with regard to an undertaking, its directors or
managers or the persons who control it, that are appropriate andnecessary toensure that that undertaking's business co ntinues tocomply with the laws, regulations and administrative provisionswith which the undertaking must comply in each Member State
and in particular with the scheme of operations insofar as it
remains mandatory, and to prevent or remedy any irregularitiesprejudicial to the interests of insured persons;
(c) ensure that those measures are carried out, if need be by
enforcement and where appropriate through judicial channels.
Member States may also make provision for the competent
authorities to obtain any information regarding contracts which areheld by intermediaries.’
Article 12
1. Article 11 (2) to(7) o f Directive 88/357/EEC is hereby repealed.
2. Under the conditions laid down by national law, each Member
State shall authorize insurance undertakings with head offices within itsterritory to transfer all or part of their portfolios of contracts, concludedeither under the right of establishment or the freedom to provideservices, to an accepting office established within the Community, if the
competent authorities of the home Member State of the accepting office
certify that after taking the transfer into account the latter possesses thenecessary solvency margin.
3. Where a branch proposes to transfer all or part of its portfolio of
contracts, concluded either under the right of establishment or the
freedom to provide services, the Member State of the branch shall be
consulted.
4. In the circumstances referred toin paragraphs 2 and 3, the
competent authorities of the home Member State of the transferring
undertaking shall authorize the transfer after obtaining the agreement of
the competent authorities of the Member States in which the risks aresituated.
5. The competent authorities of the Member States consulted shall
give their opinion or consent to the competent authorities of the home
Member State of the transferring insurance undertaking within three
months of receiving a request; the absence of any response within thatperiod from the authorities consulted shall be considered equivalent to afavourable opinion or tacit consent.
6. A transfer authorized in accordance with this Article shall be
published as laid downby national law in the Member State in which the
risk is situated. Such transfers shall automatically be valid againstpolicy-holders, insured persons and any other persons having rights orobligations arising out of the contracts transferred.
This provision shall not affect the Member States' rights to give policy-
holders the option of cancelling contracts within a fixed period after a
transfer.
Article 13
1. Article 20 of Directive 73/239/EEC shall be replaced by the
following:1992L0049 — EN — 17.11.2000 — 002.001 — 12
▼B
‘Article 20
1. If an undertaking does not comply with Article 15, the
competent authority of its home Member State may prohibit the free
disposal of its assets after having communicated its intention to thecompetent authorities of the Member States in which the risks aresituated.
2. For the purposes of restoring the financial situation of an
undertaking the solvency margin of which has fallen below the
minimum required under Article 16 (3), the competent authority ofthe home Member State shall require that a plan for the restorationof a sound financial situation be submitted for its approval.
In exceptional circumstances, if the competent authority is of the
opinion that the financial situation of the undertaking will deterioratefurther, it may also restrict or prohibit the free disposal of theundertaking's assets. It shall inform the authorities of other MemberStates within the territories of which the undertaking carries onbusiness of any measures it has taken and the latter shall, at the
request of the former, take the same measures.
3. If the solvency margin falls below the guarantee fund as
defined in Article 17, the competent authority of the home MemberState shall require the undertaking tosubmit a sho rt-term financescheme for its approval.
It may also restrict or prohibit the free disposal of the undertaking's
assets. It shall inform the authorities of other Member States withinthe territories of which the undertaking carries on businessaccordingly and the latter shall, at the request of the former, take
the same measures.
4. The competent authorities may further take all measures
necessary to safeguard the interests of insured persons in the casesprovided for in paragraphs 1, 2 and 3.
5. Each Member State shall take the measures necessary tobe
able, in accordance with its national law, to prohibit the free disposalof assets located within its territory at the request, in the casesprovided for in paragraphs 1, 2 and 3, of the undertaking's homeMember State, which shall designate the assets tobe co vered bysuch measures.’
Article 14
Article 22 of Directive 73/239/EEC shall be replaced by the following:
‘Article 22
1. Authorization granted to an insurance undertaking by the
competent authority of its home Member State may be withdrawn by
that authority if that undertaking:
(a) does not make use of that authorization within 12 months,
expressly renounces it or ceases to carry on business for morethan six months, unless the Member State concerned has madeprovision for authorization to lapse in such cases;
(b) no longer fulfils the conditions for admission;
(c) has been unable, within the time allowed, to take the measures
specified in the restoration plan or finance scheme referred to inArticle 20;
(d) fails seriously in its obligation under the regulations to which it
is subject.
In the event of the withdrawal or lapse of authorization, the
competent authority of the home Member State shall notify thecompetent authorities of the other Member States accordingly, and
they shall take appropriate measures to prevent the undertaking from
commencing new operations within their territories, under either theright of establishment or the freedom to provide services. The homeMember State's competent authority shall, in conjunction with thoseauthorities, take all measures necessary to safeguard the interests ofinsured persons and, in particular, shall restrict the free disposal of1992L0049 — EN — 17.11.2000 — 002.001 — 13
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the undertaking's assets in accordance with Article 20 (1), (2),
second subparagraph, or (3), second subparagraph.
2. Any decision to withdraw authorization shall be supported by
precise reasons and communicated to the undertaking in question.’
Article 15
1. Member States shall require any natural or legal person ►C1who
proposes to hold ◄, directly or indirectly, a qualifying holding in an
insurance undertaking first to inform the competent authorities of the
home Member State, indicating the size of his intended holding. Such aperson must likewise inform the competent authorities of the homeMember State if he proposes to increase his qualifying holding so thatthe proportion of the voting rights or of the capital he holds would reachor exceed 20, 33 or 50 % or so that the insurance undertaking would
become his subsidiary.
The competent authorities of the home Member State shall have up to
three months from the date of the notification provided for in the first
subparagraph to oppose such a plan if, in view of the need to ensure
sound and prudent management of the insurance undertaking inquestion, they are not satisfied as to the qualification of the personreferred to in the first subparagraph. If they do not oppose the plan inquestion, they may fix a maximum period fort its implementation.
2. Member States shall require any natural or legal person who
proposes to dispose, directly or indirectly, of a qualifying holding in aninsurance undertaking first to inform the competent authorities of thehome Member State, indicating the size of his intended holding. Such aperson must likewise inform the competent authorities if he proposes to
reduce his qualifying holding so that the proportion of the voting rights
or of the capital he holds would fall below 20, 33 or 50 % or so that theinsurance undertaking would cease to be his subsidiary.
3. On becoming aware of them, insurance undertakings shall inform
the competent authorities of their home Member States of any
acquisitions or disposals of holdings in their capital that cause holdingsto exceed or fall below any of the tresholds referred to in paragraphs 1and 2.
They shall also, at least once a year, inform them of the names of
shareholders and members possessing qualifying holdings and the sizesof such holdings as shown, for example, by the information received atannual general meetings of shareholders or members or as a result ofcompliance with the regulations relating to companies listed on stock
exchanges.
4. Member States shall require that, where the influence exercised by
the perso ns referred toin paragraph 1 is likely too perate against theprudent and sound management of an insurance undertaking, the
competent authorities of the home Member State shall take appropriate
measures to put an end to that situation. Such measures may consist, forexample, in injunctions, sanctions against directors and managers, orsuspension of the exercise of the voting rights attaching to the sharesheld by the shareholders or members in question.
Similar measures shall apply to natural or legal persons failing to
comply with the obligation to provide prior information imposes inparagraph 1. If a holding is acquired despite the opposition of thecompetent authorities, the Member States shall, regardless of any other
sanctions to be adopted, provide either for exercise of the corresponding
voting rights to be suspended, or for the nullity of votes cast or for thepossibility of their annulment.
Article 16
1. The Member States shall provide that all persons working or who
have worked for the competent authorities, as well as auditors andexperts acting on behalf of the competent authorities, shall be bound bythe obligation of professional secrecy. This means that no confidentialinformation which they may receive while performing their duties may1992L0049 — EN — 17.11.2000 — 002.001 — 14
▼B
be divulged to any person or authority whatsoever, except in summary
or aggregate form, such that individual insurance undertakings cannot beidentified, without prejudice to cases covered by criminal law.
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 thatundertaking may be divulged in civil or commercial proceedings.
2. Paragraph 1 shall not prevent the competent authorities of different
Member States from exchanging information in accordance with theDirectives applicable to insurance undertakings. Such information shallbe subject to the conditions of professional secrecy laid down in
paragraph 1.
3. Member States may conclude cooperation agreements providing
for exchange of information with the competent authorities of thirdcountries or with authorities or bodies of third countries as defined inparagraphs 5 and 5a only if the information disclosed is subject toguarantees of professional secrecy at least equivalent to those referred to
in this Article. Such exchange of information must be intended for the
performance of the supervisory task of the authorities or bodiesmentioned.
Where the information originates in another Member State, it may not be
disclosed without the express agreement of the competent authoritieswhich have disclosed it and, where appropriate, solely for the purposes
for which those authorities gave their agreement.
4. Competent authorities receiving confidential information under
paragraphs 1 or 2 may use it only in the course of their duties:
— to check that the conditions governing the taking up of the business
of insurance are met and to facilitate monitoring of the conduct ofsuch business, especially with regard to the monitoring of technical
provisions, solvency margins, administrative and accounting proce-
dures and internal control mechanisms,
— to impose sanctions,
— in administrative appeals against decisions of the competent
authorities, or
— in court proceedings initiated under Article 56 or under special
provisions provided for in the Directives adopted in the field of
insurance undertakings.
5. Paragraphs 1 and 4 shall not preclude the exchange of information
within a Member State, where there are two or more competentauthorities in the same Member State, or, between Member States,between competent authorities and:
— authorities responsible for the official supervision of credit
institutions and other financial organizations and the authorities
responsible for the supervision of financial markets,
— bodies involved in the liquidation and bankruptcy of insurance
undertakings and in other similar procedures, and
— 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 orguarantee funds of information necessary to the performance of theirduties. The informationreceived by those authorities, bodies and personsshall be subject to the conditions of professional secrecy laid down in
paragraph 1.
5a. Notwithstanding paragraphs 1 to 4, Member States may authorize
exchanges of information between the competent authorities and:
— the authorities responsible for overseeing the bodies involved in the
liquidation and bankruptcy of insurance undertakings and othersimilar procedures, or1992L0049 — EN — 17.11.2000 — 002.001 — 15
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▼M1
▼M1
— the authorities responsible for overseeing the persons charged with
carrying out statutory audits of the accounts of insurance under-takings, credit institutions, investment firms and other financial
institutions, or
— independent actuaries of insurance undertakings carrying out legal
supervision of those undertakings and the bodies responsible foroverseeing such actuaries.
Die Mitgliedstaaten, die von der Möglichkeit des Unterabsatzes 1
Gebrauch machen, verlangen zumindest, daß folgende Bedingungenerfüllt werden:
— this information shall be for the purpose of carrying out the
overseeing or legal supervision referred to in the first subparagraph,
— information received in this context will be subject to the conditions
of professional secrecy imposed in paragraph 1,
— where the information originates in another Member State, it may
not be disclosed without the express agreement of the competentauthorities which have disclosed it and, where appropriate, solely for
the purposes for which those authorities gave their agreement.
Member States shall communicate to the Commission and to the other
Member States the names of the authorities, person and bodies whichmay receive information pursuant to this paragraph.
5b. Notwithstanding paragraphs 1 to 4, Member States may, with the
aim of strengthening the stability, including integrity, of the financialsystem, authorize the exchange of information between the competentauthorities and the authorities or bodies responsible under the law for the
detection and investigation of breaches of company law.
Member States which have recourse to the option provided for in the
first subparagraph shall require at least that the following conditons aremet:
— the information shall be for the purpose of performing the task
referred toin the first subparagraph,
— information received in this context shall be subject to the conditions
of professional secrecy imposed in paragraph 1,
— where the information originates in another Member State, it may
not be disclosed without the express agreement of the competent
authorities which have disclosed it and, where appropriate, solely for
the purposes for which those authorities gave their agreement.
Where, in a Member State, the authorities or bodies referred to in the
first subparagraph perform their task of detection or investigation with
the aid, in view of their specific competence, of persons appointed forthat purpose and not employed in the public sector, the possibility ofexchanging information provided for in the first subparagraph may beextended to such persons under the conditions stipulated in the secondsubparagraph.
In order to implement the final indent of the second subparagraph, the
authorities or bodies referred to in the first subparagraph shallcommunicate to the competent authorities which have disclosed theinformation, the names and precise responsibilities of the persons to
whom it is to be sent.
Member States shall communicate to the Commission and to the other
Member States the names of the authorities or bodies which may receive
information pursuant to this paragraph.
Before 31 December 2000, the Commission shall draw up a report on
the application of the provisions of this paragraph.
5c. Member States may authorize the competent authorities to
transmit:
— to central banks and other bodies with a similar function in their
capacity as monetary authorities,
— where appropriate, to other public authorities responsible for
overseeing payment systems,1992L0049 — EN — 17.11.2000 — 002.001 — 16
▼M1
information intended for the performance of their task and may
authorize such authorities or bodies to communicate to the competentauthorities such information as they may need for the purposes of
paragraph 4. Information received in this context shall be subject to the
conditions of professonial secrecy imposed in this Article.
6. In addition, notwithstanding paragraphs 1 and 4, the Member
States may, under provisions laid down by law, authorize the disclosureof certain information to other departments of their central governmentadministrations responsible for legislation on the supervision of creditinstitutions, financial institutions, investment services and insurance
companies and to inspectors acting on behalf of those departments.
However, such disclosures may be made only where necessary for
reasons of prudential control.
The Member States shall, however, provide that information received
under paragraphs 2 and 5 and that obtained by means of the on-the-spot
verification referred to in Article 14 of Directive 73/239/EEC may neverbe disclosed in the cases referred to in this paragraph except with theexpress consent of the competent authorities which disclosed theinformation or of the competent authorities of the Member State inwhich on-the-spot verification was carried out.
Article 16a
1. Member States shall provide at least that:
(a) any person authorized within the meaning of Directive 84/253/
EEC(
1), performing in an insurance undertaking the task described
in Article 51 of Directive 78/660/EEC(2), Article 37 of Directive 83/
349/EEC or Article 31 of Directive 85/611/EEC or any otherstatutory task, shall have a duty to report promptly to the competent
authorities any fact or decision concerning that undertaking of which
he has become aware while carrying out that task which is liable to:
— constitute a material breach of the laws, regulations or
administrative provisions which lay down the conditionsgoverning authorization or which specifically govern pursuit ofthe activities of insurance undertaking, or
— affect the continuous functioning of the insurance undertaking,
or
— lead to refusal to certify the accounts or to the expression of
reservations;
(b) that person shall likewise have a duty to report any facts and
decisions of which he becomes aware in the course of carrying out a
task asdescribed in (a) in an undertaking having close links resultingfrom a control relationship with the insurance undertaking withinwhich he is carrying out the abovementioned task.
2. The disclosure in good faith to the competent authorities, by
persons authorized within the meaning of Directive 84/253/EEC, of any
fact or decision referred to in paragraph 1 shall not constitute a breach ofany restriction on disclosure of information imposed by contract of byany legislative, regulatory or administrative provision and shall notinvolce such persons in liability of any kind.
Chapter 2
Article 17
Article 15 of Directive 73/239/EEC shall be replaced by the following:1992L0049 — EN — 17.11.2000 — 002.001 — 17
(1) OJ NoL 126, 12. 5. 1984, p. 20.
(2) OJ NoL 222, 14. 8. 1978, p. 11. Directive as last amended by Directive 90/
605/EEC (OJ NoL 317, 16. 11. 1990, p. 60).▼B
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▼B
▼B
‘Article 15
1. The home Member State shall require every insurance
undertaking to establish adequate technical provisions in respect of
its entire business.
The amount of such technical provisions shall be determined in
accordance with the rules laid down in Directive 91/674/EEC.
2. The home Member State shall require every insurance
undertaking to cover the technical provisions in respect of its entirebusiness by matching assets in accordance with Article 6 ofDirective 88/357/EEC. In respect of risks situated within theEuropean Community, those assets must be localized within the
Community. Member States shall not require insurance undertakings
to localize their assets in any particular Member State. The homeMember State may, however, permit relaxations in the rules on thelocalization of assets.
3. If the home Member State allows any technical provisions to
be covered by claims against reinsurers, it shall fix the percentage so
allowed. In such cases, it may not specify the localization of theassets representing such claims.’
Article 18
Article 15a of Directive 72/239/EEC shall be replaced by the following:
‘Article 15a
1. Member States shall require every insurance undertaking with
a head office within their territories which underwrites risksincludedin class 14 in point A of the Annex (hereinafter referred to as “credit
insurance”) to set up an equalization reserve for the purpose of
offsetting any technical deficit or above-average claims rationarising in that class in any financial year.
2. The equalization reserve shall be calculated in accordance with
the rules laid down by the home Member State in accordance with
one of the four methods set out in point D of the Annex, which shallbe regarded as equivalent.
3. Up to the amount calculated in accordance with the methods
set out in point D of the Annex, the equalization reserve shall be
disregarded for the purpose of calculating the solvency margin.
4. Member States may exempt insurance undertakings with head
offices within their territories from the obligation to set upequalization reserves for credit insurance business where thepremiums or contributions receivable in respect of credit insurance
are less than 4 % of the total premiums or contributions receivable
by them and less than ECU 2 500000.’
Article 19
Article 23 of Directive 88/357/EEC is hereby repealed.
Article 20
The assets covering the technical provisions shall take account of the
type of business carried on by an undertaking in such a way as to secure
the safety, yield and marketability of its investments, which the
undertaking shall ensure are diversified and adequately spread.
Article 21
1. The home Member State may not authorize insurance undertakings
to cover their technical provisions with any but the following categoriesof assets:
A.Investments
(a) debt securities, bonds and other money and capital market
instruments;
(b) loans;1992L0049 — EN — 17.11.2000 — 002.001 — 18
▼B
(c) shares and other variable yield participations;
(d) units in undertakings for collective investment in transferable
securities and other investment funds;
(e) land, buildings and immovable property rights;
B.Debts and claims
(f) debts owed by reinsurers, including reinsurers' shares of
technical provisions;
(g) deposits with and debts owed by ceding undertakings;(h) debts owed by policyholders and intermediaries arising out of
direct and reinsurance operations;
(i) claims arising out of salvage and subrogation;(j) tax recoveries;
(k) claims against guarantee funds;
C.Others
(l) tangible fixed assets, other than land and buildings, valued on
the basis of prudent amortization;
(m) cash at bank and in hand, deposits with credit institutions and
any other bodies authorized to receive deposits;
(n) deferred acquisition costs;
(o) accrued interest and rent, other accrued income and prepay-
ments;
In the case of the association of underwriters know as Lloyd's, asset
categories shall also include guarantees and letters of credit issued bycredit institutions within the meaning of Directive 77/780/EEC(
1)orb y
assurance undertakings, together with verifiable sums arising out of life
assurance policies, to the extent that they represent funds belonging to
members.
The inclusion of any asset or category of assets listed in the first
subparagraph shall not mean that all categories of assets must
automatically be accepted as cover for technical provisions. The home
Member State shall lay down more detailed rules fixing the conditionsfor the use of acceptable assets; in this connection, it may requirevaluable security or guarantees, particularly in the case of debts owed byreinsurers.
In the determination and the application of the rules which it lays down,
the home Member State shall, in particular, ensure that the followingprinciples are complied with:
(i) assets covering technical provisions shall be valued net of any
debts arising out of their acquisition;
(ii) all assets must be valued on a prudent basis, allowing for the risk
of any amounts' not being realizable. In particular, tangible fixed
assets other than land and buildings may be accepted as cover for
technical provisions only if they are valued on the basis of prudentamortization;
(iii) loans, whether to undertakings, to State authorities or international
organizations, to local or regional authorities or to natural persons,may be accepted as cover for technical provisions only if there are
sufficient guarantees as totheir security, whether these are based
on the status of the borrower, mortgages, bank guarantees orguarantees granted by insurance undertakings or other forms ofsecurity;
(iv) derivative instruments such as options, futures and swaps in
connection with assets covering technical provisions may be used
in so far as they contribute to a reduction of investment risks orfacilitate efficient portfolio management. They must be valued on1992L0049 — EN — 17.11.2000 — 002.001 — 19
(1) OJ NoL 322, 17. 12. 1977, p. 30. Last amended by Directive 89/646/EEC
(OJ NoL 386, 30. 12. 1989, p. 1).
▼B
a prudent basis and may be taken into account in the valuation of
the underlying assets;
(v) transferrable securities which are not dealt in on a regulated
market may be accepted as cover for technical provisions only ifthey can be realized in the short term;
(vi) debts owed by and claims against a third party may be accepted as
cover for technical provisions only after deduction of all amountsowed to the same third party;
(vii) the value of any debts and claims accepted as cover for technical
provisions must be calculated on a prudent basis, with dueallowance for the risk of any amounts not being realizable. Inparticular, debts owed by policyholders and intermediaries arising
out of insurance and reinsurance operations may be accepted only
in so far as they have been outstanding for not more than threemonths;
(viii) where the assets held include an investment in a subsidiary
undertaking which manages all or part of the insurance under-
taking's investments on its behalf, the home Member State must,when applying the rules and principles laid down in this Article,take intoacco unt the underlying assets held by the subsidiaryundertaking; the home Member State may treat the assets of other
subsidiaries in the same way;
(ix) deferred acquisition costs may be accepted as cover for technical
provisions only to the extent that that is consistent with the
calculation of the technical provision for unearned premiums.
2. Notwithstanding paragraph 1, in exceptional circumstances and at
an insurance undertaking's request, the home Member State may,
temporarily and under a properly reasoned decision, accept othercategories of assets as cover for technical provisions, subject to Article20.
Article 22
1. As regard the assets covering technical provisions, the home
Member State shall require every insurance undertaking toinvest nomore than:
(a) 10 % of its total gross technical provisions in any one piece of land
or building, or a number of pieces of land or buildings close enoughto each other to be considered effectively as one investment;
(b) 5 % of its total gross technical provisions in shares and other
negotiable securities treated as shares, bonds, debt securities and
other money and capital market instruments from the same
undertaking, or in loans granted to the same borrower, takentogether, the loans being loans other than those granted to a State,regional or local authority or to an international organization ofwhich one or more Member States are members. This limit may be
raised to 10 % if an undertaking does not invest more than 40 % of
its gross technical provisions in the loans or securities of issuingbodies and borrowers in each of which it invests more than 5 % ofits assets;
(c) 5 % of its total gross technical provisions in unsecured loans,
including 1 % for any single unsecured loan, other than loans
granted tocredit institutio ns, assurance undertaking - in sofar as
Article 8 of Directive 73/239/EEC allows it - and investmentundertakings established in a Member State;
(d) 3 % of its total gross technical provisions in the form of cash in
hand;
(e) 10 % of its total gross technical provisions in shares, other securities
treated as shares and debt securities, which are not dealt in on aregulated market.
2. The absence of a limit in paragraph 1 on investment in any
particular category does not imply that assets in that category should beaccepted as cover for technical provisions without limit. The homeMember State shall lay down more detailed rules fixing the conditionsfor the use of acceptable assets. In particular it shall ensure, in the1992L0049 — EN — 17.11.2000 — 002.001 — 20
▼B
determination and the application of those rules, that the following
principles are complied with:
(i) assets covering technical provisions must be diversified and spread
in such a way as toensure that there is noexcessive reliance o n anyparticular category of asset, investment market or investment;
(ii) investment in particular types of asset which show high levels of
risk, whether because of the nature of the asset or the quality of theissuer, must be restricted toprudent levels;
(iii) limitations on particular categories of asset must take account of the
treatment of reinsurance in the calculation of technical provisions;
(iv) where the assets held include an investment in a subsidiary
undertaking which manages all or part of the insurance under-
taking's investments on its behalf, the home Member State must,
when applying the rules and principles laid down in this Article,take intoacco unt the underlying assets held by the subsidiaryundertaking; the home Member State may treat the assets of othersubsidiaries in the same way;
(v) the percentage of assets covering technical provisions which are the
subject of non-liquid investments must be kept to a prudent level;
(vi) where the assets held include loans to or debt securities issued by
certain credit institutions, the home Member State may, whenapplying the rules and principles laid down in this Article, take intoaccount the underlying assets held by such credit institutions. Thistreatment may be applied only where the credit institution has its
head office in a Member State, is entirely owned by that Member
State and/or that State's local authorities and its business, accordingto its memorandum and articles of association, consists ofextending, through its intermediary, loans to or guaranteed by theState or local authorities or loans to bodies closely linked to the
State or to local authorities.
3. In the context of the detailed rules laying down the conditions for
the use of acceptable assets, the Member State shall give more limitativetreatment to:
— any loan unaccompanied by a bank guarantee, a guarantee issued by
an insurance undertaking, a mortgage or any other form of security,as compared with loans accompanied by such collateral,
— Ucits not coordinated within the meaning of Directive 85/611/
EEC(
1) and other investment funds, as compared with Ucits
coordinated within the meaning of that Directive,
— securities which are not dealt in on a regulated market, as compared
with those which are,
— bonds, debt securities and other money and capitalmarket instru-
ments not issued by States, local or regional authorities or
undertakings belonging to Zone A as defined in Directive 89/647/
EEC(2), or the issuers of which are international organizations not
numbering at least one Community Member State among theirmember, as compared with the same financial instruments issued bysuch bodies.
4. Member States may raise the limit laid down in paragraph 1 (b) to
40 % in the case of certain debt securities when these are issued by acredit institution which has its head office in a Member State and issubject by law to special official supervision designed to protect theholders of those debt securities. In particular, sums deriving from the
issue of such debt securities must be invested in accordance with the law
in assets which, during the whole period of validity of the debtsecurities, are capable of covering claims attaching to the debt securitiesand which, in the event of failure of the issues, would be used on apriority basis for the reimbursement of the principal and payment of theaccrued interest.1992L0049 — EN — 17.11.2000 — 002.001 — 21
(1) OJ NoL 375, 31. 12. 1985, p. 3. Amended by Directive 88/220/EEC (OJ No
L 100, 19. 4. 1988, p. 31).
(2) OJ NoL 386, 30. 12. 1989, p. 14.
▼B
5. Member States shall not require insurance undertakings to invest in
particular categories of assets.
6. Notwithstanding paragraph 1, in exceptional circumstances and at
an insurance undertaking's request, the home Member State may,temporarily and under a properly reasoned decision, allow exceptions tothe rules laid do wn in paragraph 1 (a) to(e), subject toArticle 20.
Article 23
Points 8 and 9 of Annex 1 to Directive 88/357/EEC shall be replaced by
the following:
‘8. Insurance undertakings may hold non-matching assets to cover
an amount not exceeding 20 % of their commitments in a
particular currency.
9. A Member State may provide that when under the preceding
procedures a commitment must be covered by assets expressed
in a Member State's currency that requirement shall alsobeconsidered as satisfied when the assets are expressed in ecus’.
Article 24
Article 16 (1) of Directive 73/239/EEC shall be replaced by the
following:
‘1. The home Member State shall require every insurance
undertaking to establish an adequate solvency margin in respect ofits entire business.
The solvency margin shall correspond to the assets of the
undertaking free of any foreseeable liabilities less any intangibleitems. In particular the following shall be included:
— the paid-up share capital or, in the case of a mutual insurance
undertaking, the effective initial fund plus any members'
accounts which meet all the following criteria:
(a) the memorandum and articles of association must stipulate
that payments may be made from these accounts to members
only insofar as this does not cause the solvency margin to fall
below the required level, or, after the dissolution of theundertaking, if all the undertaking's other debts have beensettled;
(b) the memorandum and articles of association must stipulate,
with respect to any such payments for reasons other than theindividual termination of membership, that the competent
authorities must be notified at least one month in advance
and can prohibit the payment within that period and
(c) the relevant provisions of the memorandum and articles of
association may be amended only after the competentauthorities have declared that they have no objection to theamendment, without prejudice to the criteria stated in (a) and(b);
— one-half of the unpaid share capital or initial fund, once the paid-
up part amounts to 25 % of that share capital or fund,
— reserves (statutory reserves and free reserves) not corresponding
tounderwriting liabilities,
— any profits brought forward,
— in the case of mutual or mutal-type association with variable
contributions, any claim which it has against its members by wayof a call for supplementary contribution, within the financialyear, up to one-half of the difference between the maximumcontributions and the contributions actually called in, and subject
to a limit of 50 % of the margin,
— at the request of and on the production of proof by the insurance
undertaking, any hidden reserves arising out of the under-valuation of assets, insofar as those hidden reserves are not of anexceptional nature,1992L0049 — EN — 17.11.2000 — 002.001 — 22
▼B
— cumulative preferential share capital and subordinated loan
capital may be included but, if so, only up to 50 % of the margin,no more than 25 % of which shall consist of subordinated loans
with a fixed maturity, or fixed-term cumulative preferential share
capital, if the following minimum criteria are met:
(a) in the event of the bankruptcy or liquidation of the insurance
undertaking, binding agreements must exist under which thesubordinated loan capital or preferential share capital ranks
after the claims of all other creditors and is not to be repaid
until all other debts outstanding at the time have been settled.
Subordinated loan capital must fulfil the following additional
conditions:
(b) only fully paid-up funds may be taken into account;
(c) for loans with a fixed maturity, the original maturity must be
at least five years. No later than one year before therepayment date the insurance undertaking must submit tothecompetent authorities for their approval a plan showing how
the solvency margin will be kept at or brought to the required
level at maturity, unless the extent towhich the lo an mayrank as a component of the solvency margin is graduallyreduced during at least the last five years before therepayment date. The competent authorities may authorize
the early repayment of such loans provided application is
made by the issuing insurance undertaking and its solvencymargin will not fall below the required level;
(d) loans the maturity of which is not fixed must be repayable
only subject to five years' notice unless the loans are nolonger considered a component of the solvency margin orunless the prior consent of the competent authorities isspecifically required for early repayment. In the latter eventthe insurance undertaking must notify the competent
authorities at least six months before the date of the
proposed repayment, specifying the actual and requiredsolvency margins both before and after that repayment. Thecompetent authorities shall authorize repayment only if theinsurance undertaking's solvency margin will not fall belowthe required level;
(e) the loan agreement must not include any clause providing
that in specified circumstances, other than the winding-up ofthe insurance undertaking, the debt will become repayable
before the agreed repayment dates;
(f) the loan agreement may be amended only after the
competent authorities have declared that they have no
objection to the amendment;
— securities with nospecified maturity date and o ther instruments
that fulfil the following conditions, including cumulativepreferential shares other than those mentioned in the precedingindent, up to 50 % of the margin for the total of such securitiesand the subordinated loan capital referred to in the preceding
indent:
(a) they may not be repaid on the initiative of the bearer or
without the prior consent of the competent authority;
(b) the contract of issue must enable the insurance undertaking
to defer the payment of interest on the loan;
(c) the lender's claims on the insurance undertaking must rank
entirely after those of all non-subordinated creditors;
(d) the documents governing the issue of the securities must
provide for the loss-absorption capacity of the debt and
unpaid interest, while enabling the insurance undertaking to
continue its business;
(e) only fully paid-up amounts may be taken into account.’1992L0049 — EN — 17.11.2000 — 002.001 — 23
▼B
Article 25
No more than three years after the date of application of this Directive
the Commission shall submit a report to the Insurance Committee on the
need for further harmonization of the solvency margin.
Article 26
Article 18 of Directive 79/239/EEC shall be replaced by the following:
‘Article 18
1. Member States shall not prescribe any rules as to the choice of
the assets that need not be used as cover for the technical provisionsreferred toin Article 15.
2. Subject toArticle 15 (2), Article 20 (1), (2), (3) and (5) and the
last subparagraph of Article 22 (1), Member States shall not restrainthe free disposal of those assets, whether movable or immovable,that form part of the assets of authorized insurance undertakings.
3. Paragraphs 1 and 2 shall not preclude any measures which
Member States, while safeguarding the interests of the isuredpersons, are entitled to take as owners or members of or partners to
the undertakings in question.’
Chapter 3
Article 27
Article 7 (1) (f) of Directive 88/357/EEC shall be replaced by the
following:
‘(f) in the case of the risks referred to in Article 5 (d) of Directive
73/239/EEC, the parties to the contract may choose any law.’
Article 28
The Member State in which a risk is situated shall not prevent a
policyholder from concluding a contract with an insurance undertaking
authorized under the conditions of Article 6 of Directive 73/239/EEC, as
long as that does not conflict with legal provisions protecting the generalgood in the Member State in which the risk is situated.
Article 29
Member States shall not adopt provisions requiring the prior approval or
systematic notification of general and special policy conditions, scales ofpremiums, or forms and other printed documents which an insuranceundertaking intends to use in its dealings with policy-holders. They may
only require non-systematic notification of those policy conditions and
other documents for the purpose of verifying compliance with nationalprovisions concerning insurance contracts, and that requirement may notconstitute a prior condition for an undertaking's carrying on its business.
Member States may not retain or introduce prior notification or approval
of proposed increases in premium rates except as part of general price-
control systems.
Article 30
1. Article 8 (4) (b) of Directive 88/357/EEC shall be deleted. Article
8 (4) (a) of that Directive shall therefore be amended to read as follows:
‘(a) Subject tosubparagraph (c), the third subparagraph o f Article 7
(2) shall apply where the insurance contract provides cover in
two or more Member States, at least one of which makes
insurance compulsory.’
2. Notwithstanding any provision to the contrary, a Member State
which makes insurance compulsory may require that the general andspecial conditions of the compulsory insurance be communicated to itscompetent authority before being circulated.1992L0049 — EN — 17.11.2000 — 002.001 — 24
▼B
Article 31
1. Before an insurance contract is concluded the insurance under-
taking shall inform the policyholder of:
— the law applicable to the contract where the parties do not have a free
choice, or the fact that the parties are free to choose the law
applicable and, in the latter case, the law the insurer proposes tochoose,
— the arrangements for handling policyholders' complaints concerning
contracts including, where appropriate, the existence of a complaintsbody, without prejudice to the policyholders's right to take legalproceedings.
2. The obligation referred to in paragraph 1 shall apply only where
the policyholder is a natural person.
3. The rules for implementing this Article shall be determined in
accordance with the law of the Member State in which the risk is
situated.
TITLE IV
PROVISIONS RELATING TO RIGHT OF ESTABLISHMENT AND THE
FREEDOM TO PROVIDE SERVICES
Article 32
Article 10 of Directive 73/239/EEC shall be replaced by the following:
‘Article 10
1. An insurance undertaking that proposes to establish a branch
within the territory of another Member State shall notify thecompetent authorities of its home Member State.
2. The Member States shall require every insurance undertaking
that proposes to establish a branch within the territory of anotherMember State to provide the following information when effectingthe notification provided for in paragraph 1:
(a) the Member State within the territory of which it proposes to
establish a branch;
(b) a scheme of operations setting out, inter alia, the types of
business envisaged and the structural organization 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,
it being understood that that address shall be the one to which allcommunications to the authorized agent are sent;
(d) the name of the branch's authorized agent, who must possess
sufficient powers to bind the undertaking in relation to thirdparties and to represent it in relations with the authorities andcourts of the Member State of the branch. With regard toLloyd's, in the event of any litigation in the Member State of the
branch arising out of underwritten commitments, the insured
persons must not be treated less favourably than if the litigationhad been brought against businesses of a conventional type. Theauthorized agent must, therefore, possess sufficient powers forproceedings to be taken against him and must in that capacity beable to bind the Lloyd's underwriters concerned.
Where the undertaking intends its branch to cover risksin class 10 of
point A of the Annex, not including carrier's liability, it mustproduce a declaration that it has become a member of the national
bureau and the national guarantee fund of the Member State of the
branch.
3. Unless the competent authorities of the home Member State
have reason to doubt the adequacy of the administrative structure orthe financial situation of the insurance undertaking or the goodrepute and professional qualifications or experience of the directorsor managers or the authorized agent, taking into account the businessplanned, they shall within three months of receiving all the1992L0049 — EN — 17.11.2000 — 002.001 — 25
▼B
information referred to in paragraph 2 communicate that information
to the competent authorities of the Member State of the branch andshall inform the undertaking concerned accordingly.
The competent authorities of the home Member State shall also
attest that the insurance undertaking has the minimum solvency
margin calculated in accordance with Articles 16 and 17.
Where the competent authorities of the home Member State refuse to
communicate the information referred to in paragraph 2 to thecompetent authorities of the Member State of the branch they shallgive the reasons for their refusal to the undertaking concerned within
three months of receiving all the information in question. That
refusal o r failure toact may be subject toa right toapply tothecourts in the home Member State.
4. Before the branch of an insurance undertaking starts business,
the competent authorities of the Member State of the branch shall,within two months of receiving the information referred to inparagraph 3, inform the competent authority of the home Member
State, if appropriate, of the conditions under which, in the interest of
the general good, that business must be carried on in the MemberState of the branch.
5. On receiving a communication from the competent authorities
of the Member State of the branch or, if no communication isreceived from them, on expiry of the period provided for inparagraph 4, the branch may be established and start business.
6. In the event of a change in any of the particulars commu-
nicated under paragraph 2 (b), (c) or (d), an insurance undertaking
shall give written notice of the change to the competent authoritiesof the home Member State and of the Member State of the branch atleast one month before making the change so that the competentauthorities of the home Member State and the competent authoritiesof the Member State of the branch may fulfil their respective roles
under paragraphs 3 and 4.’
Article 33
Article 11 of Directive 73/239/EEC is hereby repealed.
Article 34
Article 14 of Directive 88/357/EEC shall be replaced by the following:
‘Article 14
Anyundertaking that intends to carry on business for the first time in
one or more Member States under the freedom to provide services
shall first inform the competent authorities of the home Member
State, indicating the nature of the risks it proposes to cover.’
Article 35
Article 16 of Directive 88/357/EEC shall be replaced by the following:
‘Article 16
1. Within one month of the notification provided for in Article
14, the competent authorities of the home Member State shall
communicate to the Member State or Member States within the
territories of which an undertaking intends to carry on businessunder the freedom to provide services:
(a) a certificate attesting that the undertaking has the minimum
solvency margin calculated in accordance with Articles 16 and17 of Directive 73/239/EEC;
(b) the classes of insurance which the undertaking has been
authorized to offer;
(c) the nature of the risks which the undertaking proposes to cover
in the Member State of the provision of services.
At the same time, they shall inform the undertaking concerned
accordingly.1992L0049 — EN — 17.11.2000 — 002.001 — 26
▼B
Each Member State within the territory of which an undertaking
intends, under the freedom to provide services, to cover risks in class10 of point A of the Annex to Directive 73/239/EEC other than
carrier's liability may require that the undertaking:
— communicate the name and address of the representative referred
toin Article 12a (4) o f this Directive,
— produce a declaration that the undertaking has become a member
of the national bureau and national guarantee fund of theMember State of the provision of services.
2. Where the competent authorities of the home Member State do
not communicate the information referred to in paragraph 1 withinthe period laid down, they shall give the reasons for their refusal tothe undertaking within that same period. That refusal shall be subject
toa right toapply tothe co urts in the ho me Member State.
3. The undertaking may start business on the certified date on
which it is informed of the communication provided for in the first
subparagraph of paragraph 1.’
Article 36
Article 17 of Directive 88/357/EEC shall be replaced by the following:
‘Article 17
Any change which an undertaking intends in make tothe
information referred to in Article 14 shall be subject to theprocedure provided for in Articles 14 and 16.’
Article 37
Article 12 (2), second and third subparagraphs, Article 12 (3) and
Articles 13 and 15 of Directive 88/357/EEC are hereby repealed.
Article 38
The competent authorities of the Member State of the branch or the
Member State of the provision of services may require that the
information which they are authorized under this Directive to request
with regard to the business of insurance undertakings operating in theterritory of that State shall be supplied to them in the official language orlanguages of that State.
Article 39
1. Article 18 of Directive 88/357/EEC is hereby repealed.
2. The Member State of the branch or of the provision of services
shall not adopt provisions requiring the prior approval or systematic
notification of general and special policy conditions, scales of
premiums, or forms and other printed documents which an undertakingintends to use in its dealings with policyholders. It may only require anundertaking that proposes to carry on insurance business within itsterritory, under the right of establishment or the freedom to provideservices, to effect non-systematic notification ot those policy conditions
and other documents for the purpose of verifying compliance with its
national provisions concerning insurance contracts, and that requirementmay not constitute a prior condition for an undertaking's carrying on itsbusiness.
3. The Member State of the branch or of the provision of services
may not retain or introduce prior notification or approval of proposedincreases in premium rates except as part of general price-controlsystems.
Article 40
1. Article 19 of Directive 88/357/EEC is hereby repealed.
2. Any undertaking carrying on business under the right of
establishment or the freedom to provide services shall submit to thecompetent authorities of the Member State of the branch and/or of the1992L0049 — EN — 17.11.2000 — 002.001 — 27
▼B
Member State of the provision of services all documents requested of it
for the purposes of this Article in so far as undertakings with headoffices in those Member States are also obliged to do so.
3. If the competent authorities of a Member State establish that an
undertaking with a branch or carrying on business under the freedom toprovide services within its territory is not complying with the legal
provisions applicable to it in that State, they shall require the
undertaking concerned to remedy that irregular situation.
4. If the undertaking in question fails to take the necessary action, the
competent authorities of the Member State concerned shall inform the
competent authorities of the home Member State accordingly. The latter
authorities shall, at the earliest opportunity, take all appropriatemeasures toensure that the undertaking co ncerned remedies thatirregular situation. The nature of those measures shall be communicatedto the competent authorities of the Member State concerned.
5. If, despite the measures taken by the home Member State or
because those measures prove inadequate or are lacking in that State, theundertaking persists in infringing the legal provisions in force in theMember State concerned, the latter may, after informing the competentauthorities of the home Member State, take appropriate measures to
prevent or penalize further infringements, including, in so far as is
strictly necessary, preventing that undertaking from continuing toconclude new insurance contracts within its territory. Member Statesshall ensure that within their territories it is possible to serve the legaldocuments necessary for such measures on insurance undertakings.
6. Paragraphs 3, 4 and 5 shall not affect the emergency power of the
Member States concerned to take appropriate measures to preventirregularities within their territories. This shall include the possibility ofpreventing insurance undertakings from continuing to conclude new
insurance contracts within their territories.
7. Paragraphs 3, 4 and 5 shall not affect the powers of the Member
States topenalize infringements within their territo ries.
8. If an undertaking which has committed an infringement has an
establishment or possesses property in the Member State concerned, thecompetent authorities of the latter may, in accordance with national law,apply the administrative penalties prescribed for that infringement byway of enforcement against that establishment or property.
9. Any measure adopted under paragraphs 4 to 8 involving penalties
or restrictions on the conduct of insurance business must be properlyreasoned and communicated to the undertaking concerned.
10. Every two years, the Commission shall submit to the Insurance
Committee set up by Directive 91/675/EEC a report summarizing thenumber and types of cases in which, in each Member State,authorization has been refused under Article 10 of Directive 73/239/
EEC or Article 16 of Directive 88/357/EEC as amended by this
Directive or measures have been taken under paragraph 5. MemberStates shall cooperate with the Commission by providing it with theinformation required for that report.
Article 41
Nothing in this Directive shall prevent insurance undertakings with head
offices in Member States from advertising their services, through allavailable means of communication, in the Member State ofthe branch orthe Member State of the provision of services, subject to any rules
governing the form and content of such advertising adopted in the
interest of the general good.
Article 42
1. Article 20 of Directive 88/357/EEC is hereby repealed.
2. In the event of an insurance undertaking's being wound up,
commitments arising out of contracts underwritten through a branch orunder the freedom to provide services shall be met in the same way as1992L0049 — EN — 17.11.2000 — 002.001 — 28
▼B
those arising out of that undertaking's other insurance contracts, without
distinction as to nationality as far as the persons insured and thebeneficiaries are concerned.
Article 43
1. Article 21 of Directive 88/357/EEC is hereby repealed.2. Where insurance is offered unter the right of establishment or the
freedom to provide services, the policyholder shall, before any
commitment is entered into, be informed of the Member State in whichthe head office or, where appropriate, the branch with which the contractis tobe co ncluded is situated.
Any documents issued to the policyholder must convey the information
referred toin the first subparagraph.
The obligations imposed in the first two subparagraphs shall not apply to
the risks referred toin Article 5 (d) o f Directive 73/239/EEC.
3. The contract or any other document granting cover, together with
the insurance proposal where it is binding upon the policyholder, muststate the address of the head office, or, where appropriate, of the branchof the insurance undertaking which grants the cover.
Each Member State may require that the name and address of the
representative of the insurance undertaking referred to in Article 12 a (4)of Directive 88/357/EEC also appear in the documents referred to in the
first subparagraph.
Article 44
1. Article 22 of Directive 88/357/EEC is hereby repealed.
2. Every insurance undertaking shall inform the competent authority
of its home Member State, separately in respect of transactions carriedout under the right of establishment and those carried out under thefreedom to provide services, of the amount of the premiums, claims andcommissions, without deduction of reinsurance, by Member State and bygroup of classes, and also as regards class 10 of point A of the Annex to
Directive 73/239/EEC, not including carrier's liability, the frequency and
average cost of claims.
The groups of classes are hereby defined as follows:
— accident and sickness (classes 1 and 2),
— motor (classes 3, 7 and 10, the figures for class 10, excluding
carriers' liability, being given separately),
— fire and other damage to property (classes 8 and 9),— aviation, marine and transport (classes 4, 5, 6, 7, 11 and 12),— general liability (class 13),
— credit and suretyship (classes 14 and 15),
— other classes (classes 16, 17 and 18).
The competent authority of the home Member State shall forward that
information within a reasonable time and in aggregate form to the
competent authorities of each of the Member States concerned which so
request.
Article 45
1. Article 24 of Directive 88/357/EEC is hereby repealed.2. Nothing in this Directive shall affect the Member States' right to
require undertakings carrying on business within their territories underthe right of establishment or the freedom to provide services to join andparticipate, on the same terms as undertakings authorized there, in anyscheme designed toguarantee the payment o f insurance claims to
insured persons and injured third parties.
Article 46
1. Article 25 of Directive 88/357/EEC is hereby repealed.1992L0049 — EN — 17.11.2000 — 002.001 — 29
▼B
2. Without prejudice to any subsequent harmonization, every
insurance contract shall be subject exclusively to the indirect taxesand parafiscal charges on insurance premiums in the Member State in
which the risk is situated as defined in Article 2 (d) of Directive 88/357/
EEC, and also, in the case of Spain, to the surcharges legally establishedin favour of the Spanish ‘Consorcio de Compensación de Seguros’ forthe performance of its functions relating to the compensation of lossesarising from extraordinary events occurring in that Member State.
In derogation from the first indent of Article 2 (d) of Directive 88/357/
EEC, and for the purposes of this paragraph, moveable propertycontained in a building situated within the territory of a Member State,except for goods in commercial transit, shall be a risk situated in thatMember State, even if the building and its contents are not covered bythe same insurance policy.
The law applicable to the contract under Article 7 of Directive 88/357/
EEC shall not affect the fiscal arrangements applicable.
Pending future harmonization, each Member State shall apply to those
undertakings which cover risks situated within its territory its ownnational provisions to ensure the collection of indirect taxes andparafiscal charges due under the first subparagraph.
TITLE V
TRANSITIONAL PROVISIONS
Article 47
The Federal Republic of Germany may postpone until 1 January 1996
the application of the first sentence of the second subparagraph of
Article 54 (2). During that period, the provisions of the following
subparagraph shall apply in the situation referred to in Article 54 (2).
When the technical basis for the calculation of premiums has been
communicated to the competent authorities of the home Member Statein accordance with the third sentence of the second subparagraph of
Article 54 (2), those authorities shall without delay forward that
information to the competent authorities of the Member State in whichthe risk is situated so that they may comment. If the competentauthorities of the home Member State take no account of thosecomments, they shall inform the competent authorities of the MemberState in which the risk is situated accordingly in detail and state their
reasons.
Article 48
Member States may allow insurance undertakings with head offices in
their territories, the buildings and land of which that cover theirtechnical provisions exceed, at the time of the notification of thisDirective, the percentage laid down in Article 22 (1) (a), a periodexpiring nolater than 31 December 1998 within which toco mply with
that provision.
Article 49
The Kingdom of Denmark may postpone until 1 January 1999 the
application of this Directive to compulsory insurance against accidentsat work. During that period the exclusion provided for in Article 12 (2)of Directive 88/357/EEC for accidents at work shall continue to apply inthe Kingdom of Denmark.
Article 50
Spain, until 31 December 1996, and Greece and Portugal, until 31
December 1998, may operate the following transitional arrangements forcontracts covering risks situated exclusively in one of those MemberStates other than those defined in Article 5 (d) of Directive 73/239/EEC:
(a) in derogation from Article 8 (3) of Directive 73/239/EEC and from
Articles 29 and 39 of this Directive, the competent authorities of the1992L0049 — EN — 17.11.2000 — 002.001 — 30
▼B
Member States in question may require the communication, before
use, of general and special insurance policy conditions;
(b) the amount of the technical provisions relating to the contracts
referred toin this Article shall be determined under the supervisio n
of the Member State concerned in accordance with its own rules or,failing that, in accordance with the procedures established within itsterritory in accordance with this Directive. Cover of those technicalprovisions by equivalent and matching assets and the localization of
those assets shall be effected under the supervision of that Member
State in accordance with its rules and practices adopted inaccordance with this Directive.
TITLE VI
FINAL PROVISIONS
Article 51
The following technical adjustments to be made to Directives 73/239/
EEC and 88/357/EEC and tothis Directive shall be ado pted inaccordance with the procedure laid down in Directive 91/675/EEC:
— extension of the legal forms provided for in Article 8 (1) (a) of
Directive 73/239/EEC,
— amendments tothe list set o ut in the Annex toDirective 73/239/EEC,
or adaptation of the terminology used in that list to take account of
the development of insurance markets,
— clarification of the items constituting the solvency margin listed in
Article 16 (1) of Directive 73/239/EEC to take account of thecreation of new financial instruments,
— alteration of the minimum guarantee fund provided for in Article 17
(2) of Directive 73/239/EEC to take account of economic andfinancial developments,
— amendments, to take account of the creation of new financial
instruments, to the list of assets acceptable as cover for technicalprovisions set out in Article 21 of this Directive and to the rules onthe spreading of investments laid down in Article 22,
— changes in the relaxations in the matching rules laid down in Annex
1 to Directive 88/357/EEC, to take account of the development ofnew currency-hedging instruments or progress made towardseconomic and monetary union,
— clarification of the definitions in order to ensure uniform application
of Directives 73/239/EEC and 88/357/EEC and of this Directivethroughout the Community.
Article 52
1. Branches which have started business, in accordance with the
provisions in force in their Member State of establishment, before the
entry into force of the provisions adopted in implementation of thisDirective shall be presumed tohave been subject tothe pro cedure laiddown in Article 10 (1) to (5) of Directive 73/239/EEC. They shall begoverned, from the date of that entry into force, by Articles 15, 19, 20
and 22 of Directive 73/239/EEC and by Article 40 of this Directive.
2. Articles 34 and 35 shall not affect rights acquired by insurance
undertakings carrying on business under the freedom to provide services
before the entry into force of the provisions adopted in implementation
of this Directive.
Article 53
The following Article shall be inserted in Directive 73/239/EEC:
‘Article 28a
1. Under the conditions laid down by national law, each Member
State shall authorize agencies and branches set up within its territoryand covered by this Title to transfer all or part of their portfolios ofcontracts to an accepting office established in the same Member1992L0049 — EN — 17.11.2000 — 002.001 — 31
▼B
State if the competent authorities of that Member State or, if
appropriate, of the Member State referred to in Article 26 certify thatafter taking the transfer into account the accepting office possesses
the necessary solvency margin.
2. Under the conditions laid down by national law, each Member
State shall authorize agencies and branches set up within its territory
and covered by this Title to transfer all or part of their portfolios of
contracts to an insurance undertaking with a head office in anotherMember State if the competent authorities of that Member Statecertify that after taking the transfer into account the accepting officepossesses the necessary solvency margin.
3. If under the conditions laid down by national law a Member
State authorizes agencies and branches set up within its territory andcovered by this Title to transfer all or part of their portfolios ofcontracts to an agency or branch covered by this Title and set up
within the territory of another Member State it shall ensure that the
competent authorities of the Member State of the accepting office or,if appropriate, of the Member State referred to in Article 26 certifythat after taking the transfer into account the accepting officepossessesthe necessary solvency margin, that the law ofthe Member
State of the accepting office permits such a transfer and that that
State has agreed tothe transfer.
4. In the circumstances referred toin paragraphs 1, 2 and 3 the
Member State in which the transferring agency or branch is situated
shall authorize the transfer after obtaining the agreement of thecompetent authorities of the Member State in which the risks aresituated, where different from the Member State in which thetransferring agency or branch is situated.
5. The competent authorities of the Member States consulted
shall give their opinion or consent to the competent authorities of thehome Member State of the transferring insurance undertaking withinthree months of receiving a request; the absence of any response
from the authorities consulted within that period shall be considered
equivalent to a favourable opinion or tacit consent.
6. A transfer authorized in accordance with this Article shall be
published as laid down by national law in the Member State in
which the risk is situated. Such transfers shall automatically be valid
against policyholders, insured persons and any other persons havingrights or obligations arising out of the contracts transferred.
This provision shall not affect the Member States' right to give
policyholders the option of cancelling contracts within a fixed periodafter a transfer.’
Article 54
1. Notwithstanding any provision to the contrary, a Member State in
which contracts covering the risks in class 2 of point A of the Annex to
Directive 73/239/EEC may serve as a partial or complete alternative to
health cover provided by the statutory social security system mayrequire that those contracts comply with the specific legal provisionsadopted by that Member State to protect the general good in that class ofinsurance, and that the general and special conditions of that insurancebe communicated to the competent authorities of that Member State
before use.
2. Member States may require that the health insurance system
referred to in paragraph 1 be operated on a technical basis similar to thatof life assurance where:
— the premiums paid are calculated on the basis of sickness tables and
other statistical data relevant to the Member State in which the risk issituated in accordance with the mathematical methods used ininsurance,
— a reserve is set up for increasing age,— the insurer may cancel the contract only within a fixed period
determined by the Member State in which the risk is situated,1992L0049 — EN — 17.11.2000 — 002.001 — 32
▼B
— the contract provides that premiums may be increased or payments
reduced, even for current contracts,
— the contract provides that the policyholder may change his existing
contract into a new contract complying with paragraph 1, offered bythe same insurance undertaking or the same branch and taking
account of his acquired rights. In particular, account must be taken of
the reserve for increasing age and a new medical examination maybe required only for increased cover.
In that event, the competent authorities of the Member State concerned
shall publish the sickness tables and other relevant statistical datareferred toin the first subparagraph and transmit them tothe co mpetent
authorities of the home Member State. The premiums must be sufficient,
on rasonable actuarial assumptions, for undertakings to be able to meetall their commitments having regard to all aspects of their financialsituation. The home Member State shall require that the technical basisfor the calculation of premiums be communicated to its competentauthorities before the product is circulated. This paragraph shall also
apply where existing contracts are modified.
Article 55
Member States may require that any insurance undertaking offering, at
its own risk, compulsory insurance against accidents at work within theirterritories comply with the specific provisions of their national lawconcerning such insurance, except for the provisions concerningfinancial supervision, which shall be the exclusive responsibility ofthe home Member State.
Article 56
Member States shall ensure that decisions taken in respect of an
insurance undertaking under laws, regulations and administrative
provisions adopted in accordance with this Directive may be subject
tothe right toapply tothe co urts.
Article 57
1. The Member States shall adopt the laws, regulations and
administrative provisions necessary for their compliance with thisDirective not later than 31 December 1993 and bring them into force nolater than 1 July 1994. They shall forthwith inform the Commissionthereof.
When they adopt such measures the Member States shall include
references tothis Directive o r shall make such references when they
effect official publication. The manner in which such references are tobe made shall be laid down by the Member States.
2. The Member States shall communicate to the Commission the
texts of the main provisions of national law which they adopt in the fieldcovered by this Directive.
Article 58
This Directive is addressed tothe Member States.1992L0049 — EN — 17.11.2000 — 002.001 — 33