1990L0619 — EN — 21.11.1992 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE
of 8 November 1990
on the coordination of laws, regulations and administrative provisions relating to direct life
assurance, laying down provisions to facilitate the effective exercise of freedom to provide services
and amending Directive 79/267/EEC
(90/619/EEC)
(OJ L 330, 29.11.1990, p. 50)
Amended by:
Official Journal
Nopage date
►M1Council Directive 92/96/EEC of 10 November 1992 L 360 1 9.12.1992
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COUNCIL DIRECTIVE
of 8 November 1990
on the coordination of laws, regulations and administrative provi-
sions relating to direct life assurance, laying down provisions tofacilitate the effective exercise of freedom to provide services and
amending Directive 79/267/EEC
(90/619/EEC)
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),
Whereas it is necessary todevelo p the internal market in life assurance
and in the operations referred to in First Council Directive 79/267/EECof 5 March 1979 on the coordination of laws, regulations and adminis-trative provisions relating to the taking-up and pursuit of the business ofdirect life assurance(
4), hereinafter called the ‘First Directive' as last
amended by the Act of Accession of Spain and Portugal; whereas, inorder to achieve that objective, it is desirable to make it easier forassurance undertakings having their head office in the Community toprovide services in the Member States, thus making it possible forpolicy-holders to have recourse not only to assurers established in theirown country, but also to assurers which have their head office in theCommunity and are established in other Member States;
Whereas, under the Treaty, any discrimination with regard to freedom
to provide services based on the fact that an undertaking is not estab-lished in the Member State in which the services are provided has beenprohibited since the end of the transitional period; whereas that prohibi-tion applies to services provided from any establishment in theCommunity, whether it be the head office of an undertaking or anagency or branch;
Whereas, for practical reasons, it is desirable to define provision of
services taking into account both the assurer’s establishment and theplace where the commitment is to be covered; whereas, therefore,commitment should also be defined; whereas, moreover, it is desirabletodistinguish between activities pursued by way o f establishment andactivities pursued by way of freedom to provide services;
Whereas it is desirable tosupplement the First Co uncil Directive in
order in particular to clarify the powers and means of supervision vestedin the supervisory authorities; whereas it is also desirable to lay downspecific provisions regarding the taking-up, pursuit and supervision ofactivity by way of freedom to provide services;
Whereas policy-holders who, by virtue of the fact that they take the
initiative in entering into a commitment in another State and thus placethemselves under the protection of the legal system of that other State,do not require special protection in the State of the commitment, shouldbe granted complete freedom to avail themselves of the widest possiblemarket in life assurance and in the operations referred to in the FirstDirective; whereas other policy-holders should also be affordedadequate protection;
(1) OJ NoC 38 o f 15. 2. 1989, p. 7 and
OJ NoC 72 o f 22. 3. 1990, p. 5.
(2) OJ No C 175, 16. 7. 1990, p. 107, and Decision of 24 October 1990 (not
yet published in the Official Journal).
(3) OJ NoC 298, 27. 11. 1989, p. 2.
(4) OJ NoL 63, 13. 3. 1979, p. 1.
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Whereas in the management of some group pension funds, the multi-
plicity and complexity of the various schemes and their close connec-tion with social security schemes call for careful study; whereas theyshould therefore be excluded from the scope of the provisions specificto freedom to provide services contained in this Directive; whereas theywill form the subject matter of another Directive;
Whereas the provisions in force in the Member States regarding
co ntract law applicable tothe activities referred toin the First Directivecontinue to differ; whereas the freedom to choose, as the law applicableto the contract, a law other than that of the State of the commitmentmay be granted in certain cases, in accordance with rules which takeintoacco unt specific circumstances;
Whereas the First Directive’s provisions on transfer of portfolio should
be reinforced and supplemented by provisions specifically concerningthe transfer to another undertaking of the portfolio of contractsconcluded by way of freedom to provide services;
Whereas, in the interests of protecting policy-holders, Member States
should, at the present stage of the coordination process, be given theoption of limiting the simultaneous pursuit of activity by way offreedom to provide services and activity by way of establishment;whereas no such limitation can be provided for where policy-holders donot require such protection;
Whereas the taking-up and pursuit of activity by way of freedom to
provide services should be subject to procedures guaranteeing the assur-ance undertaking’s compliance with provisions regarding financial guar-antees, conditions of assurance and premium rates; whereas thoseprocedures may be relaxed where the activity pursued by way offreedom to provide services covers policy-holders who, by virtue of thecharacteristics of the commitment they propose to enter into, do notrequire special protection in the State of the commitment;
Whereas for life assurance contracts entered into by way of the free
provision of services the policy-holder should be given the opportunityof cancelling the contract within a period of between 14 and 30 days;
Whereas the First Directive adopted the principle of prohibiting the
simultaneous pursuit of the activities covered by Directive 73/239/EEC (
1) (called the First Directive on the coordination of non-life
insurance) as last amended by Directive 88/357/EEC (2) and those
covered by the First Directive; whereas, while it authorized thecontinued existence of existing composite undertakings, it stated thatthey may not set up agencies or branches for life assurance; whereas thespecific nature of the commitments entered into in the insurance fieldunder the freedom of services regime nevertheless justifies, at least on atransitional basis as from notification of this Directive to MemberStates, the introduction of a degree of flexibility in the application of theabove principle;
Whereas nothing in this Directive would prevent a composite under-
taking fro m dividing itself intotwoundertakings, o ne active in the fieldof life assurance, the other in non-life insurance; whereas in order toallow such division to take place under the best possible conditions, it isdesirable to permit Member States, in accordance with Community rulesof competition law, to provide for appropriate tax arrangements, inparticular with regard to the capital gains such division could entail;
Whereas it is necessary to make provision for special cooperation in the
sphere of freedom to provide services between the competent super-visory authorities of the Member States and between those authoritiesand the Commission; whereas provision should also be made for asystem of penalties to apply where the undertaking providing theservice fails to comply with the provisions of the Member State inwhich the service is provided;
(1) OJ NoL 228, 16. 8. 1973, p. 3.
(2) OJ NoL 172, 4. 7. 1988, p. 1.
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Whereas the technical reserves, including mathematical reserves, shouldbe subject to the rules of and supervision by the Member State in whichthe service is provided where the provision of services involvescommitments in respect of which the State in which the service isreceived wishes to provide special protection for policy-holders;whereas, however, if such concern to protect policyholders is unjusti-fied, the technical reserves, including mathematical reserves, shouldremain subject to the rules of and supervision by the Member State inwhich the undertaking is established;
Whereas some Member States do not subject life assurance contracts
and the other operations covered by the First Directive to any form ofindirect taxation, while others apply special taxes; whereas the structureand rate of those taxes vary considerably between the Member States inwhich they are applied; whereas it is desirable to avoid a situationwhere those differences lead to distortions of competition betweenundertakings in the various Member States; whereas, pending furtherharmonization, the application of the tax arrangements provided for bythe Member State in which the commitment is entered into is a meansof remedying such mischief; whereas it is for the Member States toestablish a method of ensuring that such taxes are collected;
Whereas the First Directive makes express provision for specific rules
concerning the authorization of agencies and branches of undertakingswhose head offices are outside the Community;
Whereas provision should be made for a flexible procedure to make it
possible to assess reciprocity with third countries on a Communitybasis; whereas the aim of this procedure is not to close the Communi-ty’s financial markets but rather, as the Community intends to keep itsfinancial markets open to the rest of the world, to improve the liberali-zation of the global financial markets in other third countries; whereas,to that end, this Directive provides for procedures for negotiating withthird countries and, as a last resort, for the possibility of taking meas-ures involving the suspension of new applications for authorization orthe restriction of new authorizations;
Whereas it is desirable totake intoacco unt, within the meaning o f
Article 8c of the Treaty, the extent of the effort which needs to be madeby certain economies showing differences in development; whereas,therefore, it is desirable to grant certain Member States transitionalarrangements for the gradual application of the specific provisions ofthis Directive relating tofreedo m topro vide services;
Whereas, in view of the differences in the national legislations, it is also
appro priate togrant totho se Member States which sowish transitio nalarrangements enabling them to adapt their legislation before applying intheir entirety, as regards group insurance contracts linked to a contractof employment or the intervention of a broker, the provisions of thisDirective relating to the case where the policy-holder takes the initiativeto conclude a contract by way of provision of services;
Whereas it will be particularly important to allow those Member States
whosowish a sufficiently lo ng perio d tobe able toado pt the appro -priate provisions in order to ensure the professional qualification andindependence of insurance brokers; whereas taking into account thegrowing role such brokers play in advising those buying insurance andfacing an increasing range of products as a result of the freedom toprovide services, their professional qualification and independence willbecome essential elements for protection of the consumer,
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HAS ADOPTED THIS DIRECTIVE:
TITLE I
General provisions
Article 1
The object of this Directive is to:
(a) supplement Directive 79/267/EEC;
(b) lay down specific provisions relating to freedom to provide services
in respect of the activities referred to in the said Directive, suchprovisions being set forth in Title III of this Directive.
Article 2
For the purposes of this Directive:
(a) ‘First Directive': means Directive 79/267/EEC;
(b) ‘undertaking':
— for the purposes of Titles I and II, means any undertaking which
has received official authorization under Article 6 or Article 27of the First Directive,
— for the purposes of Titles III and IV, means any undertaking
which has received official authorization under Article 6 of theFirst Directive;
(c) ‘establishment':
means the head office, an agency or a branch of an undertaking,
having regard toArticle 3;
(d) ‘commitment':
means a commitment represented by one of the kinds of insurance
or operation referred to in Article 1 of the First Directive;
(e) ‘Member State of the commitment':
means the Member State where the policy-holder has his habitual
residence or, if the policy-holder is a legal person, the MemberState where the latter’s establishment, towhich the co ntract relatesis situated;
(f) ‘Member State of establishment':
means the Member State in which the establishment covering the
commitment is situated;
(g) ‘Member State of provision of services':
means the Member State of the commitment where the commitment
is covered by an establishment situated in another Member State;
(h) ‘parent undertaking':
means a parent undertaking within the meaning of Articles 1 and 2
of Directive 83/349/EEC (
1);
(i) ‘subsidiary':
means a subsidiary undertaking within the meaning of Articles 1
and 2 of Directive 83/349/EEC; any subsidiary undertaking of asubsidiary undertaking shall alsobe regarded as a subsidiary o f theparent undertaking which is at the head of those undertakings.
Article 3
For the purposes of the First Directive and of this Directive, any
permanent presence of an undertaking in the territory of a Member Stateshall be treated in the same way as an agency or branch, even if thatpresence does not take the form of a branch or agency, but consistsmerely of an office managed by the undertaking’s own staff or by a
(1) OJ NoL 193, 18. 7. 1983, p. 1.
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person who is independent but has permanent authority to act for the
undertaking as an agency would.
TITLE II
Provisions supplementary to the First Directive
Article 4
1. The law applicable toco ntracts relating tothe activities referred to
in the First Directive shall be the law of the Member State of thecommitment. However, where the law of that State so allows, theparties may choose the law of another country.
2. Where the policy-holder is a natural person and has his habitual
residence in a Member State other than that of which he is a national,the parties may choose the law of the Member State of which he is anational.
3. Where a State includes several territorial units, each of which has
its own rules of law concerning contractual obligations, each unit shallbe considered a country for the purposes of identifying the law applic-able under this Directive.
A Member State in which various territorial units have their own rules
of law concerning contractual obligations shall not be bound to applythe provisions of this Directive to conflicts which arise between thelaws of those units.
4. Nothing in this Article shall restrict the application of the rules of
the law of the forum in a situation where they are mandatory, irrespec-tive of the law otherwise applicable to the contract.
If the law of a Member State so stipulates, the mandatory rules of the
law of the Member State of the commitment may be applied if and in sofar as, under the law of that Member State, those rules must be appliedwhatever the law applicable tothe co ntract.
5. Subject tothe preceding paragraphs, the Member States shall
apply tothe assurance co ntracts referred toin this Directive theirgeneral rules of private international law concerning contractual obliga-tions.
Article 5
The following paragraph is added to Article 23 of the First Directive:
‘3. Each Member State shall take all steps necessary toensure
that the authorities responsible for supervising assurance undertak-ings have the powers and means necessary for supervision of theactivities of assurance undertakings established within their terri-tory, including activities engaged in outside that territory, in accord-ance with the Council Directives governing those activities and forthe purpose of ensuring that they are implemented.
Those powers and meanst must, in particular, enable the supervisory
authorities to:
— make detailed inquires about the undertaking’s situation and the
whole of its business, inter alia by:
— gathering information or requiring the submission of docu-
ments concerning assurance business,
— carrying out on-the-spot investigations at the undertaking’s
premises,
— take any measures, with regard tothe undertaking, which are
appropriate and necessary to ensure that the activities of theundertaking remain in conformity with the laws, regulations andadministrative provisions with which the undertaking has tocomply in each Member State and in particular with the schemeof operations insofar as it remains mandatory, and to prevent orremove any irregularities prejudicial to the interests of policy-holders,
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— ensure that measures required by the supervisory authorities are
carried out, if need be by enforcement, where appropriatethrough judicial channels.
Member States may also make provision for the supervisory author-
ities to obtain any information regarding contracts which is held byintermediaries.'
Article 6
1. Article 25 of the First Directive is hereby deleted.
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Article 7
Article 22 (2) of the First Directive is replaced by the following:
‘2. The Italian Republic shall take all steps toensure that the
requirement that undertakings established in its territory cede part oftheir underwriting to the “Istituto Nazionale di Assicurazioni” isabolished no later than 20 November 1994.'
Article 8
1. The heading of Title III of the First Directive is replaced by the
following:
‘
TITLE III A
Rules applicable to agencies or branches established within the
Community and belonging to undertakings whose head officesare outside the Community '
2. The following heading is placed after Article 32 of the First
Directive:
‘
TITLE III B
Rules applicable to subsidiaries of parent undertakings
governed by the laws of a third country and to acquisitions ofholdings by such parent undertakings '.
Article 9
The following Articles are added to Title III B of the First Directive:
‘Article 32a
The competent authorities of the Member States shall inform the
Commission:
(a) of any authorization of a direct of indirect subsidiary one or
more parent undertakings of which are governed by the laws ofa third country. The Commission shall inform the Committeereferred toin Article 32b (6) acco rdingly;
(b) whenever such a parent undertaking acquires a holding in a
Community insurance undertaking which would turn the latterinto its subsidiary. The Commission shall inform the Committeereferred toin Article 32b (6) acco rdingly.
When authorization is granted to the direct or indirect subsidiary of
one or more parent undertakings governed by the law of thirdcountries, the structure of the groupe shall be specified in thenotification which the competent authorities shall address to theCommission.
Article 32b
1. The Member States shall inform the Commission of any
general difficulties encountered by their insurance undertakings inestablishing themselves or carrying on their activities in a thirdcountry.
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2. Initially no later than six months before the date referred to inthe second paragraph of Article 30 of Directive 90/619/EEC (
1), and
thereafter periodically, the Commission shall draw up a reportexamining the treatment accorded to Community insurance under-takings in third countries, in the terms referred to in paragraphs 3and 4, as regards establishment and the carrying on of insuranceactivities, and the acquisition of holdings in third-country insuranceundertakings. The Commission shall submit those reports to theCouncil, together with any appropriate proposals.
3. Whenever it appears to the Commission, either on the basis of
the reports referred to in paragraph 2 or on the basis of otherinformation, that a third country is not granting Community insur-ance undertakings effective market access comparable to thatgranting Community to insurance undertakings effective marketaccess comparable to that granted by the Community to insuranceundertakings from that third country, the Commission may submitproposals to the Council for the appropriate mandate for negotiationwith a view to obtaining comparable competitive opportunities forCommunity insurance undertakings. The Council shall decide by aqualified majority.
4. Whenever it appears to the Commission, either on the basis of
the reports referred to in paragraph 2 or on the basis of otherinformation, that Community insurance undertakings in a thirdcountry are not receiving national treatment offering the samecompetitive opportunities as are available to domestic insuranceundertakings and that the conditions of effective market access arenot being fulfilled, the Commission may initiate negotiations inorder to remedy the situation.
In the circumstances described in the first subparagraph, it may also
be decided at any time, and in addition to initiating negociations, inaccordance with the procedure laid down in Article 32b (6), that thecompetent authorities of the Member States must limit or suspendtheir decisions:
— regarding requests pending at the moment of the decision or
future requests for authorizations, and
— regarding the acquisition of holdings by direct or indirect parent
undertakings governed by the laws of the third country in ques-tion.
The duration of the measures referred to may not exceed three
months.
Before the end of that three-month period, and in the light of the
results of the negotiations, the Council may, acting on a proposalfrom the Commission, decide by a qualified majority whether themeasures shall be continued.
Such limitations or suspension may not apply to the setting up of
subsidiaries by insurance undertakings or their subsidiaries dulyauthorized in the Community, or to the acquisition of holdings inCommunity insurance undertakings by such undertakings or subsi-diaries.
5. Whenever it appears to the Commission that one of the situa-
tions described in paragraphs 3 and 4 has arisen, the Member Statesshall inform it at its request:
(a) of any request for the authorization of a direct or indirect
subsidiary one or more parent undertakings of which aregoverned by the laws of the third country in question;
(b) of any plans for such an undertaking to acquire a holding in a
Community insurance undertaking such that the latter wouldbecome the subsidiary of the former.
This obligation to provide information shall lapse whenever an
agreement is reached with the third country referred to in paragraph3 or 4 when the measures referred to in the second and thirdsubparagraphs of paragraph 4 cease to apply.
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6. The Commission shall be assisted by a committee composed
of the representatives of the Member States and chaired by therepresentative of the Commission.
The representative of the Commission shall submit to the committee
a draft of the measures to be taken. The committee shall deliver itsopinion on the draft within a time limit which the chairman may laydown according to the urgency of the matter. The opinion shall bedelivered by the majority laid down in Article 148 (2) of the Treatyin the case of decisions which the Council is required to adopt on aproposal from the Commission. The votes of the representatives ofthe Member States within the committee shall be weighted in themanner set out in that Article. The chairman shall not vote.
The Commission shall adopt the measures envisaged if they are in
accordance with the opinion of the committee.
If the measures envisaged are not in accordance with the opinion of
the committee, or if no opinion is delivered, the Commission shall,without delay, submit to the Council a proposal relating to themeasures to be taken. The Council shall act by a qualified majority.
If, on the expiry of a period to be laid down in each act to be
adopted by the Council under this paragraph but which may in nocase exceed three months from the date of referral to the Council,the Council has not acted, the proposed measures shall be adoptedby the Commission, save where the Council has decided against thesaid measures by a simple majority.
7. Measures taken under this Article shall comply with the
Community’s obligations under any international agreements, bilat-eral or multilateral, governing the taking-up and pursuit of thebusiness of insurance undertakings.
(1) OJ NoL 330, 29. 11. 1990, p. 50.'
TITLE III
Provisions relating specifically to the freedom to provide services
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Article 11
Any undertaking that intends to carry on business for the first time
in one or more Member States under the freedom to provide servicesshall first inform the competent authorities of the home MemberState, indicating the nature of the commitments it proposes to cover.
Article 14
1. Within one month of the notification provided for in Article 11,
the competent authorities of the home Member State shall communi-cate to the Member State or Member States within the territory ofwhich the undertaking intends to carry on business by way of thefreedom to provide services:
(a) a certificate attesting that the undertaking has the minimum
solvency margin calculated in accordance with Articles 19 and20 of Directive 79/267/EEC;
(b) the classes which the undertaking has been authorized to offer;
(c) the nature of the commitments 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.
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 to
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the undertaking within that same period. The 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 firstsubparagraph of paragraph 1.
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Article 15
1. Each Member State shall prescribe that a policyholder who
concludes an individual life-assurance contract ►M1 ◄
shall have a period of between 14 and 30 days from the time whenhe was informed that the contract had been concluded within whichtocancel the co ntract.
The giving of notice of cancellation by the policy-holder shall have
the effect of releasing him from any future obligation arising fromthe contract.
The other legal effects and the conditions of cancellation shall be
determined by the law applicable tothe co ntract as defined in Article4, notably as regards the arrangements for informing the policy-holder that the contract has been concluded.
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2. The Member States need not apply paragraph 1 to contracts ofsix months’ duration or less, nor where, because of the status of thepolicy-holder or the circumstances in which the contract isconcluded, the policy-holder does not need this special protection.Member States shall specify in their rules where paragraph 1 is notapplied.
Article 17
Any change which an undertaking intends tomake tothe info rmatio n
referred toin Article 11 shall be subject tothe pro cedure pro videdfor in Articles 11 and 14.
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TITLE IV
Transitional provisions
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Article 27
1. In the case of group assurance contracts entered into by virtue
of the insured person’s contract of employment or professionalactivity, any Member State may, until 31 December 1994, limit thecommitments for which it is the Member State of provision of
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services totho se entered intoin acco rdance with the arrangements
referred toin Article 12.
2. Member States may, up tothree years at the latest after the
date of application laid down in the second paragraph of Article 30,consider that the policy-holder shall be deemed to have taken theinitiative only in the case provided for in the first indent of Article13 (1).
TITLE V
Final provisions
Article 28
The Commission and the competent authorities of the Member States
shall collaborate closely with a view to facilitating the supervision ofthe kinds of insurance and the operations referred to in the FirstDirective within the Community.
Each Member State shall inform the Commission of any major diffi-
culties to which application of this Directive gives rise, inter alia
any arising if a Member State becomes aware of an abnormaltransfer o f business referred toin the first Directive tothe detrimentof undertakings established in its territory and to the advantage ofagencies and branches located just beyond its borders.
The Commission and the competent authorities of the Member States
concerned shall examine such difficulties as quickly as possible inorder to find an appropriate solution.
Where necessary, the Commission shall submit appropriate proposals
tothe Co uncil.
Article 29
The Commission shall forward to the European Parliament and the
Council regular reports, the first on 20 November 1995, on thedevelopment of the market in assurance and operations transactedunder conditions of freedom to provide services.
Article 30
Member States shall amend their national provisions to comply with
this Directive within 24 months of the date of its notification(
1)and
shall forthwith inform the Commission thereof.
The provisions amended in accordance with the first paragraph shall
be applied within 30 months of the date of notification of thisDirective.
Article 31
Upon notification of this Directive, Member States shall ensure that
the texts of the main laws, regulations or administrative provisionswhich they adopt in the field covered by this Directive are communi-cated to the Commission.
Article 32
This Directive is addressed tothe Member States.
(1) This Directive was notified to the Member States on 20 November 1990.
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ANNEX
A.Statement to be signed by the policy-holder under Article 13 (1), second
indent
‘I hereby state that I wish (name of intermediary) to provide me with
information on assurance contracts offered by undertakings established inMember States other than (Member State of habitual residence of policy-holder). I understand that such undertakings are subject to the supervisoryarrangements of the State in which they are established and not to thesupervisory arrangements of (Member State of habitual residence ofpolicy-holder).'
B.Statement to be signed by the policy-holder under Article 13 (2)
‘I hereby take note that (name of assurer) is established in (Member State
of establishment of assurer) and I realize that supervision of that assureris the responsibility of the supervisory authorities in (Member State ofestablishment of assurer) and not the responsibility of the authorities in(Member State of habitual residence of policy-holder).'