Report from the Commission to the European Parliament and the Council on the functioning of Commission Regulation (EC) No 358/2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector {SEC(2009) 364}
Date: 2009-03-24
Institutions: European Commission
Subjects: application of EU law, competition law, insurance, insurance company, insurance contract, insured risk, inter-company agreement, restrictive trade practice

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.3.2009 
COM(2009) 138 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

On the functioning of Commission Regulation (EC) No 358/2003 on the application of 
Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted 
practices in the insurance sector 

{SEC(2009) 364} 

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INTRODUCTION AND BACKGROUND TO THE REVIEW 

Commission  Regulation  (EC)  No  358/20031,  the  Insurance  Block  Exemption 
Regulation (the BER) applies Article 81(3) of the EC Treaty (the Treaty)2 to certain 
categories of agreements, decisions and concerted practices in the insurance sector. 
The  European  Commission  (the  Commission)  is  required,  not  later  than  six  years 
after  the  entry  into  force3  of  the  BER  to  submit  this  Report  to  the  European 
Parliament and Council on the functioning of the BER4. 

The BER will expire on 31 March 2010. During 2008 the Commission reviewed the 
functioning of the BER over the past six years on the basis of a Consultation Paper as 
well  as  targeted  questionnaires  sent  to  certain  stakeholders5.  This  review  (the 
Review)  was  carried  out  in  co-operation  with  the  European  Competition  Network 
(ECN). The findings of the Review and the Commission's proposals for amendment 
of  the  BER  are  presented  in  this  Report.  A  longer  more  detailed  Commission 
Working  Document  accompanies  it  and  both  are  published  on  DG  Competition's 
website.  

It  should  be  noted  that  the  Report  confines  itself  to  presenting  the  Commission's 
preliminary views on the functioning of Regulation (EC) No 358/2003 and does not 
prejudge in any respect a final decision on the outcome of the Review. The Report is 
one  of  the  steps  in  a  comprehensive  consultation  process  to  which  all  stakeholders 
were invited to contribute. 

Since 1 May 2004, like most other sectors, the insurance sector has been subject to 
the  generally  applicable  provisions  of  Council  Regulation  (EC)  No  1/2003  of  16 
December  2002  (Regulation  1/2003)  on  the  implementation  of  the  rules  on 
competition  laid  down  in  Articles  81  and  82  of  the  Treaty.  Regulation  1/2003 
provides  that  agreements6  that  satisfy  the  conditions  of  Article  81(3)  are  not 
prohibited,  no  prior  decision  to  that  effect  being  required.  Undertakings  and 
associations  must  now  assess  for  themselves  whether  their  agreements  are 
compatible  with  Article  81.  Only  a  few  sectors  currently  benefit  from  a  sector 
specific BER and there have been other sectors (such as maritime and air transport) 
for which the relevant BER was not renewed. 

Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of 
the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector 
(OJ L 53, 28.2.2003). 
Wherever Article 81 is referred to in this document, the reference is to Article 81 of the EC Treaty. 
1 April 2003. 
This requirement was laid down in Article 8 of Council Regulation (EC) No 1534/91. 
DG  Competition  opened  a  Consultation  in  April  2008  for  three  months  giving  a  significant  time 
window  for  those  interested  to  present  evidence.  Following  closure  of  the  Consultation,  the 
Commission  sent  out  further  detailed  questionnaires  in  particular  to  categories  of  stakeholders  from 
whom 
and  producer 
federations/associations of security devices.  
Wherever  the  term  "agreements"  is  used  in  this  document,  it  shall  mean  agreements,  decisions  and 
concerted practices. 

information,  namely, 

insurers,  pools 

it  needed 

smaller 

further 

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2. 

5. 

MAIN FINDINGS OF THE REVIEW AND ANALYSIS 

The Commission's analysis as to whether or not to renew the BER addresses 3 key 
questions  in  relation  to  each  of  the  four  categories  of  agreement  exempted  by  the 
BER namely: 

(a)  whether  the  business  risks  or  other  issues  in  the  insurance  sector  make  it 
"special" and different to other sectors such that this leads to an enhanced need 
for cooperation amongst insurers; 

(b) 

(c) 

if  so,  whether  this  enhanced  need  for  cooperation  requires  a  legal  instrument 
such as the BER to protect or facilitate it; and 

if so, what is the most appropriate legal instrument (i.e. whether it is the current 
BER or whether partial renewal, amended renewal, or guidance would be more 
appropriate). 

2.1 

Joint Calculations, Tables and Studies 

6. 

7. 

8. 

9. 

Subject  to  certain  conditions,  the  BER  (Article  1(a))  exempts  agreements  which 
relate to the joint establishment and distribution of (i) calculations of the average cost 
of  covering  a  specified  risk  in  the  past  and  (ii)  calculations  in  connection  with 
insurance involving an element of capitalisation, mortality tables, and tables showing 
the  frequency  of  illness,  accident  and  invalidity  (Tables).  The  BER  (Article  1(b)) 
also  exempts  (subject  to  certain  conditions)  the  joint  carrying  out  of  studies  on  the 
probable  impact  of  general  circumstances  external  to  the  interested  undertakings, 
either on the frequency or scale of future claims for a given risk or risk category or 
on the profitability of different types of investment and the distribution of the results 
of such studies. 

The costs of insurance products are unknown at the time the price is agreed and the 
risk covered. Calculation of risk is a key issue in pricing all insurance products which 
appears to be a differentiating factor from other sectors including the banking sector. 
This  makes  access  to  past  statistical  data  in  order  to  technically  price  risks  crucial. 
Therefore,  on  the  basis  of  the  evidence  before  the  Commission,  it  appears  that 
cooperation  in  this  area  is  both  specific  to  the  insurance  industry  and  necessary  in 
order to price risks.  

Agreements which increase the number of insurers potentially capable of covering a 
given  risk  generally  increase  market  access  and  competition.  The  fact  that  insurers 
are allowed to engage in cooperation on the calculation of risk cover may enable the 
entry  of  small  and  medium  sized  firms.  The  vast  majority  of  respondents  drew 
attention  to  the  industry  need  to  cooperate  on  this  issue  and  connected  it  to  the 
existence of the BER.  

Many  insurers,  as  well  as  some  supervisory  authorities  and  a  risk  management 
federation argued that without the BER, insurers would no longer cooperate on joint 
calculations,  tables  and  studies  or  would  not  share  the  outcome  of  the  cooperation 
with  smaller  or  foreign  insurers.  Indeed  some  large  insurers  (who,  according  to 
insurance associations, would be able to compile the relevant information alone or by 
involving perhaps one or two other large insurers) may have no incentive to do so. 
The  BER  requires  that  when  insurance  companies  enter  into  these  forms  of 

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10. 

11. 

2.2 

12. 

13. 

14. 

cooperation,  they  must  give  access  to  the  information  compiled,  on  a  non-
discriminatory basis, to other insurance companies. It was argued that in the event of 
non-renewal of the BER, insurers could cooperate to prevent access by for example, 
smaller  or  foreign  insurance  companies,  to  the  information  compiled  in  order  to 
narrow  the  market.  This  would  be  to  the  disadvantage  of  smaller/foreign  insurers 
who  would  be  prevented  or  discouraged  from  entering  the  market.  A  number  of 
respondents during the Review,  in particular small and medium sized insurers, said 
they could not have entered the market without the use of the data-sharing facilitated 
by this exemption. It also appears that the newer a market is, the more important it is 
to have access to such data in order to assist new entrants to accurately assess risk. 

Some respondents pointed out that alternatives to this horizontal cooperation exist: in 
particular, if insurers increase research and development staff to analyse the market 
or governments/public organisations collect and publish data. However the evidence 
appears to be that the first option is probably not an efficient way to achieve this goal 
and  the  second  is  dependent  on  public  authorities  for  whom  this  may  not  be  a 
priority. 

The  Commission  considers  that  there  are  therefore  good  reasons  to  protect  and 
facilitate cooperation in this area and that the current BER appears to be doing this 
effectively. Furthermore it appears, at this stage that, the risk (even if it may be low) 
that  such  pro-competitive  cooperation  may  diminish  should  be  avoided.  The 
Commission  has  not  yet  decided  whether  to  amend  the  structure  or  drafting  of  the 
current exemption and whether, if concluded that renewal is necessary, it should be 
total  or  partial.  This  will  depend  on  the  further  input  it  may  receive  and  on  a 
thorough and specific analysis of all data and information available. 

Standard Policy Conditions 

The  BER  exempts  (subject  to  certain  conditions),  the  joint  establishment  and 
distribution  of  non-binding  standard  policy  conditions  (SPCs)  for  direct  insurance; 
and non-binding models on profits. 

During  the  Review,  several  insurers  and  insurance  associations  argued  that 
cooperation in order to establish SPCs ensures that the costs incurred by insurers and 
in  turn  the  premiums  they  charge  to  customers  are  kept  low.  They  argued  that 
without  the  BER,  there  would  be  an  increase  in  insurers'  costs  resulting  from  the 
increased effort required to agree wordings for policies due in particular to the lack 
of an agreed starting point. 

The Commission agrees that in many cases SPCs can give rise to positive effects for 
competition  and  consumers.  However  the  question  for  this  Review  is  primarily 
whether this category of agreements is specific to the insurance sector. The answer to 
that  question  appears  to  be  that  technically  or  legally  complex  agreements  in  fast 
changing legal environments are commonplace in a number of sectors. SPCs are used 
in some such sectors without the cover of BERs. For example in the banking sector 
to  whom  the  Commission's  Services  also  sent  questionnaires,  SPCs  are  agreed 
between banks in a number of Member States, for services such as money transfer, 
issuance of cards, use of ATMs, account terms, credit agreements and payments. In 
addition it has been argued by representatives of the banking sector that it does not 
require a legislative framework (such as a BER) in order to set policy conditions and 

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15. 

16. 

2.3 

17. 

18. 

that  the  absence  of  such  a  framework  has  not  caused  any  tangible  difficulties  for 
banks.  

Some  respondents  argued  in  the  course  of  the  Commission's  Review  that  the  legal 
uncertainty  that  would  result  from  non-renewal  would  lead  to  less  cooperation  for 
fear of a risk that it could be challenged by the Commission or NCAs. The argument 
continues that in the event of non-renewal there would be an individual assessment 
which would be time consuming and expensive especially for smaller insurers who 
would  pass  on  costs  to  policyholders.  However,  even  under  the  current  regime,  a 
careful legal assessment of SPCs' compliance with the BER must be undertaken. In 
addition,  some  national  regulations  have  fixed  these  standard  policy  conditions, 
resulting  in  a  reduced  need  for  cooperation.  Moreover,  there  are  cases  where  the 
national  regulator  (e.g.  FSA  in  the  UK)  challenged  market  participants  to  achieve 
contract certainty and made clear that if the market fails to develop on its own, it will 
intervene with new rules. Many national associations have also been taking the lead 
on SPCs for some time, which further supports the view that it is unlikely that SPCs 
would not continue to be agreed in the absence of a BER and in particular given the 
Commission's view that in many cases SPCs would not fall foul of Article 81(1) or 
would not fail to comply with the exemption criteria of Article 81(3). 

In conclusion, co-operation on SPCs does not appear to be specific to the insurance 
sector and as such does not necessarily require a sector-specific BER. Nor does there 
appear  to  be  a  significant  risk  of  less  or  non-cooperation  on  SPCs  in  the  event  of 
non-renewal  of  the  BER.  However,  in  the  event  of  non-renewal,  further  guidance 
may be envisaged by the Commission. 

Common coverage of certain types of risks (pools) 

The  BER  exempts7  the  setting  up  and  operation  of  co(re)insurance  pools  for  the 
common  coverage  of  new  risks8  as  well  as  co(re)insurance  pools  covering  risks 
which are not new, subject to certain conditions. The BER is based on the premise 
that  any  such  pools  may  involve  restrictions  of  competition  and  that  it  is  therefore 
appropriate  to  lay  down  the  circumstances  (market  share  thresholds9  and  other 
conditions10) under which such groups can benefit from the Article 81(3) exemption. 

The  Commission  agrees  with  respondents  to  the  Consultation  that  risk  sharing  for 
certain types of risks (such as nuclear, terrorism and environmental risks), for which 
individual insurance companies are reluctant or unable to insure the entire risk alone, 
is  crucial  in  order  to  ensure  that  all  such  risks  can  be  covered.  This  makes  the 
insurance  sector  different  to  other  sectors  and  triggers  an  enhanced  need  for 
cooperation. In terms of whether there is a need for a specific legal instrument such 
as the BER to cover this form of cooperation, the Commission found the following as 
a result of the Review:  

7 

8 
9 

10 

For three years from the date of first establishment of the group, regardless of the market share of the 
group. 
Defined in Article 2(7) of the BER. 
Article 7(2)(a) and (b): more than 20% of the relevant market for co-insurance and more than 25% for 
co-reinsurance. 
Article 8 of the BER. 

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19. 

20. 

21. 

First,  a  need  for  consistency  arises  in  relation  to  the  calculation  of  market  shares, 
which is currently done by taking into account the insurance products underwritten 
within the pool by the participating undertakings or on their behalf. This means that 
the  turnovers  achieved  by  the  participating  companies  outside  the  co(re)insurance 
pool in the relevant market should not be taken into account, which is not in line with 
other  general  and  sector-specific  competition  rules  on  the  assessment  of  horizontal 
cooperation.  Applying  different  rules  on  the  calculation  of  market  shares  in  the 
insurance  sector  to  those  applied  in  other  sectors  would  result  in  treating  the 
insurance sector in a preferential way. At this stage, there appear to be no reasons to 
maintain such preferential treatment in relation to other sectors. This would be taken 
into account if this exemption were to be renewed. 

Secondly,  many  co(re)insurance  pools  currently  operating  on  the  market  are  not 
actually covered by the BER, for a number of reasons, and therefore renewal or non-
renewal of the BER should not affect their legal assessment. Indeed, certain pools do 
not  need  a  BER  to  provide  a  safe  harbour  because  they  do  not  give  rise  to  a 
restriction of competition in the first place. Pools may be considered not to be anti-
competitive, no matter how high their market share, as long as pooling is necessary 
to allow their members to provide a type of insurance that could not be provided by 
one insurance company alone. Replies during the Review show that many pools do 
not  consider  this  possibility  in  their  legal  analysis  and  mistakenly  argue  that  they 
require  the  BER  for  legal  certainty  reasons,  whereas  in  fact,  they  are  likely  to  be 
outside  its  scope.  Other  pools,  which  can  be  replaced  by  two  or  more  insurance 
entities and can give rise to restrictions of competition, may also be outside the scope 
of the BER, but for different reasons: they exceed the market share thresholds of the 
BER and/or do not comply with all of the conditions set out in Article 8 of the BER. 
However,  some  pools  which  do  comply  with  market  share  thresholds  and  other 
conditions of the BER could be affected by its non-renewal.  

Thirdly, many insurers incorrectly use the pool exemption as a "blanket" exemption, 
without carrying out a careful legal assessment of a pools' compliance with the BER. 
For instance, it is necessary to carefully define the relevant product and geographic 
market, as market definition is a prerequisite in order to assess compliance with the 
market  share  thresholds11.  Replies  received  in  the  consultation  process  indicate  a 
high  degree  of  uncertainty  regarding  the  definition  of  their  relevant  markets. 
Although  many  respondents  emphasised  that  the  BER  should  clarify  the  notion  of 
"relevant  market",  neither  the  BER  nor  another  legal  instrument  can  define  the 
relevant market, which is a matter that must be individually assessed by pools. The 
Commission's  Notice  on  the  definition  of  the  relevant  market12,  together  with 
relevant  Commission  decisions  and  comfort  letters  in  the  insurance  sector  can  be 
used as guidance in order for pools to determine the relevant market on which they 
operate.  

22. 

Therefore, the Commission considers that pools are specific to the insurance sector 
and in addition, it appears that there is some risk of non-cooperation in this area if the 
BER were not renewed. Although the risk of non-cooperation may not be significant, 
the Commission considers that it may be appropriate to keep an exemption under the 

11 
12 

Concerns were also raised about the definition of "new risks". 
OJ C 372, 9.12.1997, p. 5. 

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BER in place for pools. However, if the Commission does renew this exemption, the 
chapter  on  pools  will  be  significantly  redrafted  in  order  to  ensure  consistency  with 
other  general  and  sector-specific  legislation  and  take  on  board  comments  received 
during 
in  a 
Communication, the need for a careful individual legal self-assessment, on a case-by-
case basis. 

the  Commission  will  emphasise 

the  Review.  Furthermore, 

2.4 

23. 

24. 

25. 

Security devices 

The  BER  covers  (i)  technical  specifications,  rules  or  codes  of  practice  regarding 
security  devices  and  procedures  for  assessing  and  approving  their  compliance  with 
these standards; as well as (ii) technical specifications, rules or codes of practice for 
the installation and maintenance of security devices and procedures for assessing and 
approving the compliance of undertakings which install or maintain security devices 
with such standards. These agreements are covered by the BER in so far as no EU-
level harmonisation exists and provided that they fulfil the other conditions set out in 
Article 9 of the BER.  

As also argued by respondents to the Review, the Commission considers that there is 
a mutuality of interests in the insurance sector in relation to cooperation on security 
devices since insurers actively seek ways to help customers to reduce their exposure 
to  the  risk  covered.  However,  agreements  on  technical  specifications  for  security 
devices and their installation fall into the general domain of standard setting, which 
is  not  unique  to  the  insurance  sector.  Therefore,  the  Commission  has  doubts  about 
whether the BER is required in order to facilitate this cooperation.  

First,  the  Commission  considered  the  possibility  that  manufacturers  of  security 
devices  and  companies  providing  installation  and  maintenance  services  do  not 
comply  with  technical  specifications  and  compliance  assessments  commonly 
established  by  insurers  and  are  therefore  excluded  from  the  market  because 
consumers  cannot  get  insurance  for  such  products.  Some  of  the  replies  confirmed 
these  concerns,  already  identified  in  the  Business  Insurance  Sector  Inquiry. 
Consumers  must  qualify  for  insurance  acceptance  by  proving  they  use  approved 
security devices in order to achieve an acceptable level of prevention, as established 
by  the  insurance  associations.  Difficulties  arise  where  customers  wish  to  switch  to 
suppliers of security devices that do not adhere to the standards. It also appears that 
the  BER  encourages  the  de  facto  adoption  of  infra-European  industry  standards, 
which  may  be  an  obstacle  to  the  free  movement  of  goods  and  services.  In  most 
Member  States  only  installation  and  services  from  regional  or  national  operating 
"approved" suppliers, using "approved" devices are accepted by insurance companies 
usually  organised  within  their  national  associations.  Moreover,  the  high  cost  of 
multiple  testing  and  multiple  certification  is  a  significant  barrier  to  marketing  new 
and innovative products in the EU market.  

26. 

Although  the  Treaty  rules  on  the  free  movement  of  goods  are  not  applicable  to 
private undertakings and their associations, agreements which have as their object or 
effect  the  partitioning  of  the  common  market  along  national  borders  have  in  some 
instances of established case law been considered as anti-competitive and contrary to 
Article 81(1). Moreover, the provisions of Articles 39 (free movement of workers), 

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43 (freedom of establishment) and 49 (freedom to provide services) of the EC Treaty 
are binding not only on Member States but also on private bodies13. The abolition, as 
between  Member  States,  of  obstacles  to  the  free  movement  for  persons  would  be 
compromised  if  the  abolition  of  State  barriers  could  be  neutralised  by  obstacles 
created by associations or organisations not governed by public law14. 

Secondly,  the  remaining  scope  for  possible  agreements  under  the  BER  is 
significantly  reduced  or  eliminated  since  EU  harmonisation  is  now  extensive  and 
increasing.  For  instance,  approximately  90  EU  harmonised  standards  (or  technical 
specifications) concerning fire detection and fire alarm systems as well as fixed fire 
fighting systems have already been published in the EU's Official Journal and at least 
another 30 EU-harmonised standards are currently under development for categories 
of construction products.  

Thirdly,  the  Commission  has  always  advocated  that  the  standard-setting  process 
should be open to all interested industry participants and the results made available 
on  fair,  reasonable  and  non-discriminatory  terms15.  The  Review  showed  that  the 
there  are  many  cases  where  insurers  do  no  involve  the  manufacturers  and  service 
providers concerned when agreeing or reviewing standards. This lack of transparency 
is  likely  to  be  closely  linked  to  the  subsequent  de  facto  exclusion  of  certain 
manufacturers from the market.  

In conclusion, agreements in relation to security devices do not appear to be specific 
to  the  insurance  sector  and  furthermore  they  appear  to  give  rise  to  concerns  in 
relation  to  both  competition  and  the  development  of  the  EU's  internal  market.  The 
Commission  therefore  favours  the  option  of  not  renewing  this  part  of  the  BER. 
However, insurers will benefit from guidance in terms of applicability or otherwise 
of Article 81 of the Treaty to their agreements on security devices, afforded by the 
general  standardisation  chapter  in  the  Horizontal  Guidelines16  currently  under 
review.  

CONCLUSIONS AND PROPOSALS 

The analysis above shows that not all the categories of agreement currently exempted 
by the BER are specific to the insurance sector. SPCs do not appear to be specific as 
they are also agreed in other sectors in particular in the banking sector, without the 
need  for  a  BER.  Neither  do  agreements  for  security  devices  and  their  installation 
appear to be specific to the insurance sector, as they fall into the general domain of 
standard-setting,  which  currently  benefits  from  guidance  under  the  Horizontal 
Guidelines. 

Cases C-415/93, Bosman [1995] ECR I-4921, paras 83 and 84; and C-281/98, Angonese [2000] ECR I-
4139, para.32; Case 36/74, Walrave and Koch [1974] ECR 1405. 
Case  C-309/99,  Wouters  v.Algemene  Raad  van  de  Nederlandse  Orde  van  Advocaten  [2002]  ECR  I-
1577; C-411/98; Ferlini v. CHL [2000] ECR I-8081, para.50. 
Commission Notice of 6 January 2001: Guidelines on the applicability of Article 81 of the EC Treaty to 
horizontal  cooperation  agreements  (OJ  C  3,  6.1.2001);  Communication  from  the  Commission  to  the 
European  Parliament  and  the  Council  on  the  role  of  European  standardisation  in  the  framework  of 
European policies and legislation, 18.10.2004.  
Commission Notice of 6 January 2001: Guidelines on the applicability of Article 81 of the EC Treaty to 
horizontal cooperation agreements (OJ C 3, 6.1.2001). 

27. 

28. 

29. 

3. 

30. 

13 

14 

15 

16 

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31. 

32. 

33. 

34. 

As  regards  agreements  on  SPCs  and  Security  Devices,  several  respondents  argued 
that  there  would  be  much  less  cooperation  between  insurers  if  the  BER  were  not 
renewed because companies would be less willing or unwilling, to assume the legal 
risks  of  cooperating  without  the  BER.  The  argument  is  that  this  reduction  in 
cooperation or failure to cooperate would in turn disadvantage both competition (less 
market  entry)  and  consumers  (higher  prices  and  less  choice).  If  cooperation  in  the 
areas exempted is so important to the insurance sector, the Commission would expect 
that the need to cooperate would take priority over the need for a safe harbour under 
the  BER.  This  is  what  happens,  in  practice,  for  example  in  relation  to  claims 
settlement agreements and registers of aggravated risks, where insurers do cooperate, 
even  though  these  two  areas  are  not  block  exempted.  Therefore  if  there  is  any  less 
cooperation on the market in the event  of non-renewal, it is unlikely this would be 
the direct consequence of non-renewal. 

It should be noted that the legal certainty provided by the BER is not absolute and 
can be a safe harbour (codifying Article 81(3)) only if the conditions of the BER are 
fulfilled. Many insurers appear to rely on the legal certainty provided by the simple 
existence of the BER, without carrying out the required careful legal assessment of 
their  compatibility  with  the  conditions  of  the  BER.  Furthermore,  many  insurers 
appear  to  mistakenly  consider  themselves  covered  by  the  BER,  underestimate  the 
assessment required under the BER and overestimate the self-assessment that would 
be necessary in the event of non-renewal of the BER. 

In  the  event  that  the  BER  is  not  renewed  in  relation  to  the  two  categories  of 
agreements  proposed  (standard  policy  conditions  and  security  devices),  agreements 
previously  falling  under  the  BER  will  not  necessarily  become  illegal.  On  the 
contrary, a legal assessment under Article 81(1) and Article 81(3) together with the 
Guidelines  on  the  application  of  Article  81(3)  and/or  the  Horizontal  Guidelines, 
rather  than  under  the  BER,  would  be  required,  as  is  currently  the  case  for  the  vast 
majority of sectors. As the European Commission will confirm in a Communication 
which  will  be  published  in  the  event  of  non-renewal  of  any  of  the  current 
exemptions,  most  of  the  criteria  used  in  this  BER  would  remain  valuable  when 
applying  Article  81(3).  Finally,  positive  effects  arising  from  such  agreements  and 
argued by respondents during the Review should be considered within Article 81(1) 
and, if necessary, Article 81(3) on a case-by-case basis. 

The  Commission's  view  at  this  stage  is  that  the  two  forms  of  cooperation  which 
appear  specific  to  the  insurance  sector,  namely  agreements  in  relation  to  joint 
calculations,  tables  and  studies  and  co(re)insurance  pools  should  continue  to  be 
facilitated by a BER. For the former, the Commission has not yet decided whether to 
amend the structure or drafting of the current exemption and whether, if concluded 
that renewal is necessary, it should be total or partial. This will depend on the further 
input  it  may  receive  and  on  a  thorough  and  specific  analysis  of  all  data  and 
information available. As for the latter, it appears, at this stage that, even if the risk 
of  non-cooperation  in  these  areas  may  be  low,  the  possibility  that  such  pro-
competitive cooperation may diminish, should be avoided. 

35. 

A public event will be held on 2nd June 2009 to allow the Commission to hear final 
representations from industry and stakeholders prior to taking a decision on whether 
to renew any parts of the BER. 

EN 

9 

   EN