Summary of Commission Decision

of 30 June 2022

relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement

(Case AT. 40511 - Insurance Ireland: Insurance claims database and conditions of access)

(notified under document C(2022) 4448 final)

(Only the English text is authentic)

(Text with EEA relevance)

(2022/C 335/10)

On 30 June 2022, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA agreement. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1. INTRODUCTION

(1) The Decision makes binding the commitments offered by Insurance Ireland (Member Association) Company Limited by Guarantee (‘Insurance Ireland’) to meet the Commission’s concerns as expressed in its preliminary assessment, pursuant to Article 9(1) 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 (‘Regulation (EC) No 1/2003’).

2. PROCEDURE

(2) Between 4 and 7 July 2017, the Commission carried out inspections pursuant to Article 20 of Regulation (EC) No 1/2003 at the premises of Insurance Ireland in Dublin, Ireland.

(3) On 14 May 2019, the Commission opened proceedings with a view to taking a decision under Chapter III of Regulation 1/2003. On 18 June 2021, the Commission adopted a Statement of Objections setting out its preliminary competition concerns (the ‘SO’).

(4) On 16 February 2022, Insurance Ireland submitted initial commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to address these concerns (the ‘Initial Commitments’). On 4 March 2022, the Commission published a notice in the Official Journal of the European Union pursuant to Article 27(4) of Regulation (EC) No 1/2003 (the ‘Market Test’), summarising the case and the Initial Commitments and inviting interested third parties to provide their observations on the Initial Commitments.

(5) On 13 April 2022, the Commission informed Insurance Ireland of the observations received from interested third parties following the publication of the Market Test. On 17 May 2022, Insurance Ireland submitted to the Commission an amended proposal for commitments (the ‘Final Commitments’).

(6) On 20 June 2022, the Advisory Committee on Restrictive Practices and Dominant Positions was consulted and issued a favourable opinion. On 21 June 2022, the final report of the Hearing Officer was issued.

3. THE PRELIMINARY ASSESSMENT

(7) In the SO, the Commission preliminarily concluded that Insurance Ireland infringed Article 101(1) TFEU and Article 53(1) of the EEA Agreement, by arbitrarily delaying and/or de facto denying access of non-members to its information exchange system, thereby restricting competition in the Irish motor vehicle insurance market. The information exchange system of Insurance Ireland (called ‘Insurance Link’) comprises a non-life insurance claims data pool and a facility to request further information on past claims. Insurance Link contains important information for detecting and combating fraud in the Irish motor vehicle insurance market.

(8) According to the preliminary assessment, access to Insurance Link was hindered through a number of interlinked decisions of Insurance Ireland. Since at least 2009, access to this information exchange system has been linked to and/or has been made dependent upon membership of Insurance Ireland. Furthermore, the Commission considered that the design and application of the criteria for membership of Insurance Ireland have not been clear, transparent, objective, readily available and were discriminatory, because Insurance Ireland handled the membership application process in an arbitrary and discriminatory manner and delayed the membership application process for a number of applicants during extended periods.

(9) The Commission considered that lack of and/or delayed access to Insurance Link had the effect of placing the affected undertakings at a competitive disadvantage on the Irish motor vehicle insurance market in comparison to members of Insurance Ireland that had access to the information exchange system. This had a negative impact on competitors’ costs, quality of service and pricing, to the ultimate detriment of consumers. 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.

4. COMMITMENTS

4.1. Initial commitments

(10) While Insurance Ireland disagrees with the Commission’s preliminary assessment, it has nevertheless offered the following Initial Commitments pursuant to Article 9(1) of Regulation (EC) No 1/2003 in order to meet the Commission’s competition concerns: (i) Make the access to the Insurance Link information exchange system independent from any membership to Insurance Ireland. (ii) Change the access criteria to Insurance Link and make them fair, objective, transparent and non-discriminatory and apply them uniformly to all applicants, from Ireland and other Member States. (iii) Establish a new Insurance Link application procedure with a defined timeline that will be handled by an operationally independent Application Officer. Applicants who have been refused access will be able to appeal to the Oversight Committee, an independent appeal body. (iv) Establish a cost and usage based fee model and ensure that a fair, transparent, and non-discriminatory fee will be charged to Insurance Link users. (v) Ensure that the criteria for becoming member of the Insurance Ireland association will be fair, objective, transparent and non-discriminatory.

(11) The Initial Commitments would remain in force for 10 years and would be monitored by a Monitoring Trustee reporting regularly to the Commission. Finally, Insurance Ireland would not circumvent or attempt to circumvent the Initial Commitments either by action or omission.

4.2. Revised commitments in light of the Market Test

(12) In response to observations received from interested third parties during the Market Test, Insurance Ireland modified the Initial Commitments and submitted the Final Commitments on 17 May 2022. Compared to the Initial Commitments, the Final Commitments have more detailed provisions about the role, responsibilities and key competencies of the Insurance Link Application Officer and the Monitoring Trustee, as well as further clarifications regarding the period for implementation of the commitments.

5. CONCLUSION

(13) The Final Commitments adequately respond to the concerns expressed in the Commission’s preliminary assessment and to the concerns raised by respondents to the Market Test.

(14) The commitment to de-couple access to Insurance Link from membership of Insurance Ireland will address the Commission’s preliminary concern that access to Insurance Link is linked to and/or dependent upon membership of Insurance Ireland and reserved for Insurance Ireland members only.

(15) Additionally, the new criteria to access Insurance Link will, on the one hand, guarantee a transparent Insurance Link application process, and, on the other hand, safeguard non-discriminatory treatment of insurers from other Member States and their agents. Moreover, the commitments concerning the Insurance Link application process, in particular the new function of the Application Officer, the Sub-Committee of the Board of Insurance Ireland reviewing only access refusals and the Oversight Committee, an independent body reviewing as final instance refusals to access to Insurance Link, will adequately address the concern identified in its preliminary assessment that Insurance Ireland handled the application process in an arbitrary and discriminatory manner for certain applicants.

(16) The commitment on the fee structure and membership of Insurance Ireland will further safeguard effective access to Insurance Link. Fees charged for the use of Insurance Link will be applied on a fair, objective, transparent and non-discriminatory basis to all Insurance Link users. In this manner, they will not be prohibitive to current or prospective Insurance Link users and they will not be used as a means to directly or indirectly hinder access.

(17) Lastly, Insurance Ireland committed to introduce fair, objective, transparent and non-discriminatory criteria for membership to the association and to put in place a streamlined and swift membership application process. These commitments will ensure that the competition concerns are addressed effectively. A transparent and streamlined process to become a member of Insurance Ireland is necessary to eliminate in the longer term any incentives for hindering access to Insurance Link.

(18) Insurance Ireland has not offered less onerous commitments that also address the Commission’s concerns adequately. Thus, the Final Commitments comply with the principle of proportionality.

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).