Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council concerning life assurance (recast version)"
Date: 2001-01-24
Institutions: European Economic and Social Committee
Subjects: insurance, insurance law, life assurance

C 123/24

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Official Journal of the European Communities

25.4.2001

APPENDIX

to the Opinion of the Economic and Social Committee

The following proposed amendment, which received more than one quarter of the votes cast, was rejected:

Point 2.1

Delete the last two sentences of this point and replace them by the following:

‘The introduction of demanding technical standards (e.g. in respect of emission values) is an integral part of tried and
tested environmental policy machinery. Account does, of course, always also have to be taken of the questions of
technical feasibility and future dissemination on the market. Measures should also be taken to seek to ensure that
these standards can be met by as many technology suppliers as possible.

The Committee understands all the possible reservations which may be expressed over the technical feasibility of
standards in individual cases but it does endorse the principle that environmental policy should lay down demanding
technical standards in order to enable environmental technology to press ahead.’

Result of the vote

For: 28, against: 32, abstentions: 6.

Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and of the Council concerning life assurance (recast version)’

(2001/C 123/04)

On 26 July 2000 the Council decided to consult the Economic and Social Committee, under Article 262
of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Single Market, Production and Consumption, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 8 December 2000. The rapporteur was
Mr Pelletier.

At its 378th plenary session of 24 and 25 January 2001 (meeting of 24 January) the Economic and Social
Committee adopted the following opinion with 81 votes in favour and two abstentions.

1.

Introduction

The basic texts governing the single market in life
1.1.
assurance, which is founded on the principle of the single
authorisation and mutual recognition of checks, are the
first directive of 5 March 1979 (1), the second directive of
8 November 1990 (2) and the third directive of 10 November

1992 (3), the latter directive amending and supplementing the
preceding directives. It does not replace them completely and
many of the provisions from the first two directives remain in
force. These directives have themselves been amended by a
directive of 29 June 1995 (4) intended to strengthen prudential
supervision.

(1) Council Directive 79/267/EEC of 5 March 1979, OJ L 63,

(3) Council Directive 92/96/EEC of 10 November 1992, OJ L 360,

13.3.1979, p. 1.

9.12.1992, p. 1.

(2) Council Directive 90/619/EEC of 8 November 1990, OJ L 330,

(4) European Parliament and Council Directive 95/26/EC of 29 June

29.11.1990, p. 50.

1995, OJ L 168, 18.7.1995, p. 7.

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Because of this accumulation of interlinking texts, and
1.2.
the resultant extremely complex layout,
the Commission
wishes to consolidate them officially in the interests of clarity.

Community measures’. This phrase should be retained in the
proposed ‘recast’
insofar as the single market still needs
Community initiatives.

1.3.
During the official consolidation of the life assurance
directives it became apparent to the Commission that it would
be necessary to propose some amendments going beyond pure
consolidation so as to clarify or update certain situations. This
is why the proposal submitted for the Committee’s opinion
constitutes a proposal for recasting the directives.

3.1.2. R e c i t a l 3 4

The French version lacks the reference ‘92/96/EEC No 13’ in
the margin.

2. General comments

3.1.3. R e c i t a l 5 8

2.1.
Subject to the comments set out below, the Committee
is generally favourable to the proposed recasting and can only
share the objective of transparency and clarity.

It should be spelt out that the ‘provisions concerning proof of
good repute and no previous bankruptcy’ must apply to the
directors.

2.2.
Furthermore, the newly inserted provisions — of which
there are six — are of limited scope and do not all require
detailed comment. They concern the following points:

— definition of a regulated market;

3.2. Articles

— dates concerning the activities of composite undertakings;

3.2.1. A r t i c l e 1 — D e f i n i t i o n s

— calculation of future profits;

— presentation of a scheme of operations by third country

branches to be established in the EU;

3.2.1.1. 1(b) Branch

— abolition of derogations;

— rights acquired by existing branches.

The majority of the proposal’s provisions restate the
2.3.
life assurance directives, although several articles which no
longer have any point are dropped. Regarding the articles
which refer to the drawing-up of reports, the Committee
wonders whether these reports have actually been drawn up.

3.

Specific comments

3.1. Preamble

3.1.1. R e c i t a l 5

Recital 3 of Directive 92/96/EEC described the adoption of
this directive as a ‘stage that must be supplemented by other

In the definition of ‘branch’ the words ‘shall be treated in the
same way as an agency or branch’ which followed the words
‘Any permanent presence of an undertaking ...’ in Article 3 of
the Directive of 8 November 1990 (90/619/EEC) have not
been included (French text only). The Committee would
suggest inserting two indents so as to clearly separate these
two paragraphs, one starting with ‘an agency ...’ and the other
with ‘any permanent presence ...’.

3.2.1.2. 1(c) Establishment

The Committee would point out that in the French version the
word ‘établissement’
in italics like
(establishment)
the other words defined in Article 1. The definition of
‘establishment’ should more logically precede that of ‘branch’.

is not

The Committee wonders why Article 1 does not provide a
definition of ‘Member State of establishment’ which Article 2(f)
of the second directive of 8 November 1990 (90/619/EEC)
defined as ‘the Member State in which the establishment
covering the commitment
Is it regarded as
redundant, being identical with ‘Member State of the branch’?

is situated’.

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3.2.1.3. 1(m) Regulated market

3.2.4. A r t i c l e 2 5 — C o n t r a c t s
U C I T S o r s h a r e i n d e x

l i n k e d t o a

Directive 92/96/EEC provided for a provisional definition of a
regulated market, pending the adoption of a directive on
investment services in the securities field, which would har-
monise that concept at Community level.

In the French version there is a mistake in the reference in
margin. It should be Article 23 (92/96/EEC) and not Article 2.

Council Directive 93/22/EEC (1) of 10 May 1993 on investment
services in the securities field provides for a definition of
regulated market, although it excludes from its scope life
assurance activities. The Committee considers that incorporat-
ing this definition for life assurance is satisfactory and ensures
that Community law is uniform.

regulated markets

Regarding the treatment of
in third
countries, the Commission proposes leaving it up to the
Member States to decide whether such markets are comparable
with those in the EU. The Committee wonders whether
more coordination and cooperation between the supervisory
authorities is not needed to establish a number of criteria and
requirements to improve the comparability of Community and
non-Community regulated markets (2).

3.2.2. A r t i c l e 1 8 ( 6 ) — S i m u l t a n e o u s p u r s u i t
n o n - l i f e
a s s u r a n c e

a n d

l i f e

o f
i n s u r a n c e a c t i v i t i e s

3.2.5. A r t i c l e 2 7 ( 3 ) ( a ) — R u l e s

r e l a t i n g t o
t h e s o l v e n c y m a r g i n a n d t o t h e g u a r a n -
t e e f u n d

3.2.5.1. 2nd paragraph — calculation of future profits

The proposal states that ‘the bases for calculating the factor by
which the estimated annual profit is to be multiplied and the
items comprising the profits made shall be defined by common
agreement by the competent authorities of the Member States
It stipulates that
in collaboration with the Commission’.
‘pending such agreement, those items shall be determined in
accordance with the laws of the home Member State’ and not,
as in previous versions, ‘of the Member State in the territory of
which the undertaking (head office, agency or branch) carries
on its activities’. In the Committee’s view this amendment is in
line with the Community directives which allot responsibility
for supervising operations to the country where the head office
is located.

The derogations introduced to the principle that life and non-
life operations are to be kept separate should not be too
numerous. Bearing in mind also the forthcoming enlargement
of the EU, there is a risk of an increase in derogations to the
principle. For this reason the Committee wonders whether the
scope for derogation should not be further hedged in.

3.2.5.2.
Furthermore, the Committee wonders whether the
method for calculating future profits should not include a
more forward-looking dimension. This point should be studied
when the texts on the solvency margin are amended.

3.2.3. A r t i c l e 2 3 ( 1 ) ( C ) — C a t e g o r i e s o f a u t h -

o r i s e d a s s e t s

Article 23(1)(C) of the French text of the draft recast, concern-
ing the categories of assets authorised to cover the mathemat-
ical provisions, does not incorporate ‘(p) reversionary interests’
from Article 21 of the third directive (92/96/EEC). This must
be an oversight.

3.2.6. A r t i c l e
m a r g i n

2 8 — M i n i m u m s o l v e n c y

3.2.6.1.
be replaced by ‘est’ in the French version.

In the third line of the fourth paragraph ‘et’ should

3.2.7. A r t i c l e

4 9 ( 2 ) , ( 3 ) , ( 4 ) — S c h e m e

o f

o p e r a t i o n o f b r a n c h e s

(1) Council Directive 93/22/EEC of 10 May 1993, OJ L 141,

11.6.1993, p. 27.

(2) ‘Challenges posed by EMU to financial markets’, OJ C 367,

20.12.2000.

The text of Article 11 of the first directive is reintroduced for
the scheme of operations of third country branches. Is the
information required by third country branches sufficient? Is

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more information needed to assess the links of a third country
branch in a group or for intra-group transactions within the
meaning of the directive on the supplementary supervision of
insurance undertakings in an insurance group (98/78/EC) (1)?

The Committee thinks that it is justified in raising these points,
especially bearing in mind the prospect of enlargement and
the worldwide activities of criminal organisations.

3.2.9. A r t i c l e 5 9 ( 2 ) — D e r o g a t i o n s a n d a b o l -

i t i o n o f r e s t r i c t i v e m e a s u r e s

The Committee wonders whether a derogation should be
retained for societies registered in the United Kingdom ‘under
the Friendly Societies Acts’ when the derogations introduced
for Belgian and Italian societies are no longer necessary.

3.2.8. A r t i c l e 5 7 — T h i r d c o u n t r y t r e a t m e n t
o f C o m m u n i t y a s s u r a n c e u n d e r t a k i n g s

3.2.8.1. Paragraph 2

3.2.10. A r t i c l e 6 1 — T r a n s i t i o n a l r e g i m e f o r
i n v e s t m e n t s
i n l a n d a n d b u i l d i n g s ;
A r t i c l e 6 2 — T r a n s i t i o n a l r e g i m e f o r
S w e d e n ; A r t i c l e 6 7 — R i g h t s a c q u i r e d
b y e x i s t i n g b r a n c h e s a n d a s s u r a n c e
u n d e r t a k i n g s ; A r t i c l e 6 9 — R e v i e w o f
a m o u n t s e x p r e s s e d i n e u r o

Rather than the Commission ‘periodically’ drawing up a report
examining the treatment accorded to Community assurance
undertakings in third countries, a more precise timetable
should be stipulated, every five years for example.

These articles laying down transitional regimes should either
be adapted by stipulating a new period or be deleted as no
longer relevant.

Furthermore, was the above-mentioned report, which should
have been drawn up for the first time no later than six months
before the date referred to in the second paragraph of
Article 30 of Directive 90/619/EEC, drawn up as provided for
in Article 9 of that directive?

3.3. The Annexes

3.2.8.2. Paragraphs 4 and 5

Article 57 of the proposal incorporates Article 32b of Directive
79/267/EEC as inserted by Article 9 of Directive 90/619/EEC.

The Committee suggests amending point (a)14 to read ‘type of
contract’ instead of ‘type of policy’ to bring it into line with
the terminology used in the directive.

3.3.1. A n n e x I I I o n i n f o r m a t i o n f o r p o l i c y -

h o l d e r s

However, the last sub-paragraph of paragraph 4 and the first
sub-paragraph of paragraph 5 have been omitted in the French
version. The Committee proposes that they be reintroduced.
The text is as follows:

4. Conclusions

‘Such limitations or suspension may not apply to the setting
up of subsidiaries by insurance undertakings or their subsidi-
aries duly authorized in the Community, or to the acquisition
of holdings in Community insurance undertakings by such
undertakings or subsidiaries.

5. Whenever it appears to the Commission that one of the
situations described in paragraphs 3 and 4 has arisen, the
Member States shall inform it at its request.’

(1) Directive 98/78/EC of the European Parliament and of the Council

of 27 October 1998, OJ L 330, 5.12.1998, p. 1.

4.1. Without prejudice to point 2.2 above,
the main
objective of the proposal referred to the Committee is to
consolidate Community provisions on life assurance so as to
provide the public with a single, clear and readily understand-
able text. The Committee approves this initiative which will
help to give economic agents and consumers an ordered
overview of the general framework governing life assurance
activities in the EU and will facilitate the growth of trans-
border transactions. It will also help to improve legal certainty
for economic agents.

4.2.
The Committee would strongly encourage the Euro-
pean Commission to carry out the same exercise as soon as
possible for non-life insurance, an area where the complexities
of the Community legal framework are in need of clarification.
These operations are in fact governed by no fewer than nine

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directives, adopted between 1973 and 1999, covering not
only access to and exercise of non-life activities, but also more
specifically vehicle insurance, credit insurance, travel insurance
and legal protection insurance.

4.3.
The Committee is also concerned that the proposed
directive should not leave the way open for the principles and
procedures laid down by the consolidated directives to be
called into question.

Brussels, 24 January 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Exhaustion of registered trademark
rights’

(2001/C 123/05)

On 13 July 2000 the Economic and Social Committee, acting under the third paragraph of Rule 23 of its
Rules of Procedure, decided to draw up an opinion on the Exhaustion of registered trademark rights.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 10 January 2001. The rapporteur was
Mrs Sa´nchez Miguel.

At its 378th plenary session of 24 and 25 January 2001(meeting of 24 January), the Economic and Social
Committee adopted the following opinion unanimously.

1.

Introduction

1.1.
The purpose of this opinion is to endorse the Com-
mission’s decision of May 2000 not to change the current
Community exhaustion regime for registered trademarks,
owing in part to the need to continue protecting European
goods and services identified by trademarks.

1.2.
Registered trademarks form part of the corpus of
legislation governing industrial and intellectual property rights.
At European level the discussion on registered trademarks has
focused on the accession of the European Community to the
Madrid Protocol and on the Community exhaustion regime.

Existing Community law (1) on industrial property
1.3.
rights (design, registered trademarks, copyright and similar
rights) provides for the principle of Community exhaustion of
rights. The purpose of
this regime is to guarantee free
movement of goods within the EU; it allows the owner of a
trademark to prevent imports of products bearing that trade-
mark which were first brought on to the market outside the
EU.

(1) Council Directive 89/104/EEC of 21 December 1988 to approxi-
mate the laws of the Member States relating to trade marks;
Council Regulation (EC) No 40/94 of 20 December 1993 on
the Community trade mark; Council Directive 87/54/EEC of
16 December 1986 on the legal protection of topographies of
semiconductor products; Council Directive 91/250/EEC of 14 May
1991 on the legal protection of computer programs; Council
Directive 92/100/EEC of 19 November 1992 on rental right and
lending right and on certain rights related to copyright in the field
of intellectual property; Council Regulation (EC) No 2100/94 of
27 July 1994 on Community plant variety rights; Directive
96/9/EC of the European Parliament and of the Council of
11 March 1996 on the legal protection of databases.