Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40511 - Insurance Ireland: Insurance claims database and conditions of access

(2022/C 104/10)

1. Introduction

(1) According to Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty ( 1 ) , the Commission may decide – in cases where it intends to adopt a decision requiring that an infringement be brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment – to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.

2. Summary of the case

(2) On 14 May 2019, the Commission opened a formal investigation into Insurance Ireland (Member Association) Company Limited by Guarantee (‘Insurance Ireland’), an association of undertakings that administers the Insurance Link information exchange system. The investigation was opened in order to assess whether the conditions of access to the Insurance Link information exchange system may restrict competition. On 18 June 2021, the Commission adopted a Statement of Objections concerning suspected infringements of Insurance Ireland on the Irish motor vehicle insurance market. The Statement of Objections constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.

(3) The preliminary assessment, expresses the view that Insurance Ireland breached Article 101(1) TFEU and Article 53 of the EEA Agreement by restricting access to the Insurance Link information exchange system, thereby restricting competition in the Irish motor vehicle insurance market. The Insurance Link information exchange system comprises a non-life insurance claims data pool and a facility to request further information on such claims. The information exchange system contains information useful for detecting and combating fraud in the motor insurance industry.

(4) The Commission preliminarily considered that Insurance Ireland arbitrarily delayed or de facto denied access to the information exchange system to companies that had a legitimate interest in joining it, and that hurdles remain in place that might affect companies seeking to enter the Irish motor insurance market. According to the preliminary assessment, this was achieved through a number of interlinked decisions that were applied with various degrees of intensity over different periods of time. Since at least 2009, access to Insurance Link has been linked to and/or has been made dependent upon membership of Insurance Ireland. Furthermore, the Commission preliminarily considered that the design and application of the criteria for membership to Insurance Ireland have not been clear, transparent, objective, non-discriminatory or readily available. The preliminary assessment, expresses the view that Insurance Ireland handled the Insurance Ireland membership application process in an arbitrary and discriminatory manner and delayed the membership application process for a number of applicants for extended periods of time. Certain categories of market participants (e.g. insurers established in other member States and providing services in Ireland on the basis of the rules relating to the free provision of services between Member States (hereinafter ‘freedom of services basis’), managing general agents) were excluded from membership for certain periods of time. Even when access to the data pool was granted to certain applicants, their access to the Insurance Link facility to request further information was de facto denied and/or delayed.

(5) The Commission preliminarily considered that lack of or delayed access to Insurance Link had the effect of placing companies at a competitive disadvantage on the Irish motor vehicle insurance market in comparison to companies that had access to the information exchange system. This affected their costs, quality of service and pricing negatively. It also acted as a barrier to entry and thus reduced the possibility of more competitive prices and choice of suppliers. Lack of access to the relevant data contained in Insurance Link also had an effect on cross border trade between Member States, potentially resulting in the partitioning of the internal market.

3. The Main content of the offered commitments

(6) Insurance Ireland does not agree with the Commission’s preliminary assessment. Insurance Ireland has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns (‘the offered commitments’).

(7) The text of the offered commitments is briefly summarized below and is published in full in English on the website of the Directorate-General for Competition at: https://ec.europa.eu/competition-policy/index_en

A) Commitments concerning access to Insurance Link

(8) Within 20 business days following the date on which Insurance Ireland receives formal notification of the Commission decision according to Article 9 of Regulation (EC) No 1/2003 Insurance Ireland commits to: (a) de-couple access to Insurance Link from membership of Insurance Ireland, such that there will be no requirement for an Insurance Link user to be, or become, a member of Insurance Ireland in order to access Insurance Link or use any of its functions; (b) adopt and make publicly available criteria for access to Insurance Link that will be fair, objective, transparent and non-discriminatory and applied uniformly to all applicants (including from other Member States) (2). Access to Insurance Link will be granted to: (i) any insurer that carries on insurance business in Ireland, or demonstrates an intention to carry on insurance business in Ireland on a freedom of services basis or on the basis of rules on the freedom of establishment; and (ii) any entity appointed by an insurer to perform, under delegated authority, underwriting functions and/or claims management functions in Ireland on the insurer’s behalf. In the case of entities operating by way of delegated authority, there is no requirement for the insurer for whom they are acting, to be, or become, a member of Insurance Ireland in order for the entity to access Insurance Link. Applicants will need to submit an application form, to agree to input data claims into Insurance Link, to enter and comply with a terms of access agreement (3) and to adhere to the 2013 Code of Practice on Data Protection for the Insurance Sector; (c) establish a new Insurance Link application procedure with a defined timetable for granting or refusing access to Insurance Link and a right to appeal (4). From the moment when the application is submitted and until a decision has been reached, the process should last 20 business days. Additional 10 days are foreseen to review the procedure and its outcome, if at first instance, access is refused or no decision is made during the 20 days.

(9) Within 10 business days following the date on which Insurance Ireland receives formal notification of the Commission decision according to Article 9 of Regulation (EC) No 1/2003, Insurance Ireland commits to: (a) designate an Insurance Link Application Officer who will have the responsibility to independently review and determine applications for access to Insurance Link in accordance with the Insurance Link application procedure. The Application Officer will report to Insurance Ireland as regards the outcome of the process, but neither Insurance Ireland nor any external party will be allowed to influence this process. Only in case the Application Officer decides that the applicant does not meet the criteria for access, will the Board of Insurance Ireland have to validate or overturn the decision of the Application Officer and grant access instead (5); (b) introduce revised fees for the use of Insurance Link set in accordance with principles of a revised fee structure that must be fair, objective, transparent and non-discriminatory for all Insurance Link users (6). The aggregate fees charged to Insurance Link users will reflect the actual costs incurred in the operation of Insurance Link. The fees charged to individual Insurance Link users will be determined on the basis of the user’s actual usage of the system over a given reference period. A one-time on-boarding fee will be charged to all new Insurance Link users to cover the costs of setting them up.

(10) Within 30 business days following the date on which Insurance Ireland receives formal notification of the Commission decision according to Article 9 of Regulation (EC) No 1/2003 Insurance Ireland commits to set-up the Oversight Committee, ( 7 ) an appeal body composed of: (i) a person proposed by the Department of Finance; (ii) a qualified lawyer with expertise in dispute resolution, proposed by the Chair of the Chartered Institute of Arbitrators (Ireland Branch); (iii) a person representing the interests of business customers proposed by ISME, the Irish SME Association; (iv) a person proposed by the Motor Insurance Bureau of Ireland; and (v) a person proposed by the Personal Injuries Assessment Board. An applicant may appeal to the Oversight Committee following the refusal of its application by Insurance Ireland or its failure to act within the foreseen timeframe ( 8 ) . The Oversight Committee will review and report on the operations of Insurance Link. It will also advise on any changes to Insurance Link operations and processes and it will advise on the fee structure for access to Insurance Link.

B) Commitments concerning membership to Insurance Ireland

(11) Within 20 business days following the date on which Insurance Ireland receives formal notification of the Commission decision according to Article 9 of Regulation (EC) No 1/2003 Insurance Ireland commits to: (a) adopt and make publicly available criteria for the admission to membership of Insurance Ireland for full and associate members that will be fair, objective, transparent and non-discriminatory. Insurance Ireland full membership will be open to insurers carrying on or intending to carry on their business in Ireland. Other entities offering services in the insurance sector in Ireland or intending to do so will be eligible for Insurance Ireland associate membership (9). Insurance Ireland will remove the criteria currently in force pursuant to which: (i) a membership applicant must have been in operation for at least one year; and (ii) an applicant must be sponsored by an existing full member of Insurance Ireland to be admitted as associate member; (10) (b) establish a new membership application procedure with a defined timetable and a right of appeal for membership applicants. The duration of the application process is the same as for access to Insurance Link; (11) (c) designate a Membership Application Officer that will have the responsibility and operational independence for processing applications for admission to Insurance Ireland in accordance with the membership application procedure. In case the Membership Application Officer decides that an applicant does not meet membership criteria, the Board of Insurance Ireland will have to validate or overturn the decision of the Membership Application Officer and admit to membership instead (12).

(12) Within 30 business days following the date on which Insurance Ireland receives formal notification of the Commission decision according to Article 9 of Regulation (EC) No 1/2003 Insurance Ireland commits to designate a Membership Appeal Board that will be composed of independent adjudicators having proven knowledge of and expertise in the insurance sector and/or dispute resolution ( 13 ) . The Membership Appeal Board will review appeals in respect of a decision taken by the Membership Application Officer and/or the Board of Insurance Ireland that an applicant does not meet membership criteria ( 14 )

(13) The duration of all offered commitments will be 10 years from the date on which Insurance Ireland receives formal notification of the Commission’s decision pursuant to Article 9 of Regulation (EC) No 1/2003.

(14) Insurance Ireland commits to appoint a Monitoring Trustee that will monitor and report to the Commission on the implementation of the offered commitments. During the first two years, the Monitoring Trustee will submit its report to the Commission every six months and, for the remainder of the duration of the offered commitments, on an annual basis.

(15) Insurance Ireland commits not to circumvent, or attempt to circumvent the offered commitments either by action or omission.

4. Invitation to make Comments

(16) Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring binding the commitments summarised above. The decision will be published, on the website of the Directorate-General for Competition.

(17) In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the offered commitments. These observations must reach the Commission no later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ’business secrets’ or ’confidential’.

(18) Answers and comments should preferably be reasoned and should set out the relevant facts. If you consider that any part of the offered commitments would not effectively meet the concerns raised in the Commission’s preliminary assessment, the Commission would also invite you to suggest a possible solution.

(19) Observations can be sent to the Commission under reference number AT.40511 - Insurance Ireland: Insurance claims database and conditions of access either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by post, to the following address: European Commission Directorate-General for Competition Antitrust Registry 1049 Bruxelles/Brussel BELGIQUE/BELGIË

(1) OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 81 and 82 of the EC Treaty should be understood as references to Articles 101 and 102 of the TFEU when applicable.

(2) See offered commitments and Annex 1 thereof.

(3) See Annex 3 of the offered commitments.

(4) See offered commitments and Annexes 4 and 5 thereof. As regards the right to appeal, see also paragraph 10 of this Communication.

(5) See offered commitments and Annex 4 thereof. In addition, the Board will review (i) any decision to withdraw or restrict or de facto deny an Insurance Link user’s rights of access (once granted) to Insurance Link or any of its facilities; (ii) a failure to comply with any aspect of the Insurance Link application procedure resulting in a delay to the processing of applications; or (iii) a failure to calculate the fees charged to an Insurance Link user for access to Insurance Link in accordance with the fee structure in place for Insurance Link.

(6) See offered commitments and Annex 7 thereof.

(7) See offered commitments and Annexes 5 and 6 thereof.

(8) In addition, the Oversight Committee will review appeals related to decision or action by the Application Officer or the Board to: (i) a decision not to grant access to InsuranceLink (ii) withdraw or restrict or de facto deny an Insurance Link user’s rights of access (once granted) to Insurance Link or any of its facilities; (iii) to fail to comply with any aspect of the Insurance Link application procedure resulting in a delay to the processing of an Insurance Link applicant’s application; and/or (iv) a failure to calculate the fees charged to an Insurance Link user for access to Insurance Link in accordance with the fee structure in place for Insurance Link.

(9) For example, loss adjusters, intermediaries acting as underwriting agents, entities having an insurance undertaking as a carrier, and others.

(10) See offered commitments and Annexes 9 and 10 thereof.

(11) See offered commitments and Annexes 12, 13 and 14 thereof.

(12) See offered commitments and Annex 13 thereof.

(13) See offered commitments and Annexes 13 and 14 thereof.

(14) See offered commitments and Annex 14 thereof. The Membership Appeal Board will also review appeals lodged by a member who, without reasonable justification, has been denied access in whole or in part to the facilities or services of Insurance Ireland that it is entitled to receive within its membership class.