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 {COM(2009) 138 final}
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 
SEC(2009) 364 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying the 

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 

{COM(2009) 138 final}

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TABLE OF CONTENTS 

I. INTRODUCTION .................................................................................................................. 6 

1. 

2. 

3. 

4. 

4.1. 

4.2. 

4.3. 

4.4. 

5. 

Background and aims of the review............................................................................. 6 

Purpose and scope of the Report and of the Working Document ................................ 7 

Insurance markets in the EU ........................................................................................ 7 

Methodology and data.................................................................................................. 8 

Phase One (leading up to and including the Consultation Paper)................................ 8 

Phase Two (leading up to the Report to the European Parliament and Council)......... 9 

The Sector Inquiry into Business Insurance............................................................... 10 

Consultation of NCAs ................................................................................................ 11 

Approach to analysis of whether to renew BER ........................................................ 12 

5.2. 

If the BER is not renewed .......................................................................................... 13 

5.2.1.  Applicability of Article 81(1) of the Treaty............................................................... 13 

5.2.2.  Applicability of Article 81(3) of the Treaty............................................................... 14 

II. JOINT CALCULATIONS, TABLES AND STUDIES ...................................................... 14 

1. 

Scope of the BER ....................................................................................................... 14 

1.1.  What the BER covers ................................................................................................. 14 

1.1.1.  Agreements which relate to certain joint calculations and tables .............................. 14 

1.1.2.  Agreements which relate to the joint carrying-out of certain studies ........................ 15 

1.2.  What the BER does not cover .................................................................................... 16 

2. 

2.1. 

Main findings of the review and analysis .................................................................. 16 

Question One: is the insurance sector special or different to other sectors such that it 
gives rise to an enhanced need for cooperation in this area? ..................................... 16 

2.1.1.  Data from joint calculations, tables and studies is important in order to price risks in 

the insurance sector .................................................................................................... 16 

2.2 

Question Two: If the answer to question one is positive, does this enhanced need for 
cooperation require a legal instrument in order to protect or facilitate it?................. 17 

2.2.1.  Cooperation is useful, particularly for small and medium sized insurers .................. 17 

2.2.2.  Cooperation increases consistency in terms of Solvency II....................................... 18 

2.2.3.  Alternatives to cooperation ........................................................................................ 18 

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2.3. 

Question Three: if the answer to question two is positive, what is the most 
appropriate legal instrument?..................................................................................... 19 

2.3.1.  Questions about the scope of the current BER........................................................... 19 

2.3.2.  Exemption under the BER – current thinking............................................................ 19 

2.3.3  Whether BER is most appropriate and if so in what form? ....................................... 21 

3. 

Conclusions and Proposals......................................................................................... 22 

III. STANDARD POLICY CONDITIONS AND MODELS .................................................. 23 

1. 

Scope of the BER ....................................................................................................... 23 

1.1.  What the BER covers ................................................................................................. 23 

1.1.1.  Agreements on SPCs.................................................................................................. 23 

1.1.2.  Agreements on Models on Profits.............................................................................. 23 

1.2.  What the BER does not cover .................................................................................... 23 

2. 

2.1. 

Main findings of the review and analysis .................................................................. 24 

Question One: is the insurance sector special or different to other sectors such that it 
gives rise to an enhanced need for cooperation?........................................................ 24 

2.1.1.  SPCs are not specific to the insurance sector............................................................. 24 

2.2. 

Question Two: does this enhanced need for cooperation require a legal instrument in 
order to protect or facilitate it?................................................................................... 24 

2.3. 

Applicability of Article 81 ......................................................................................... 24 

2.3.1.  Applicability of Article 81(1)..................................................................................... 25 

2.3.2.  Applicability of Article 81(3)..................................................................................... 26 

2.4 

3. 

Effects on SPC cooperation in event of non-renewal ................................................ 27 

Conclusions and Proposals......................................................................................... 27 

IV. COMMON COVERAGE OF CERTAIN TYPES OF RISKS (POOLS) .......................... 29 

1. 

1.1. 

1.2. 

Scope of the BER ....................................................................................................... 29 

Pools newly created which cover new risks............................................................... 29 

Pools covering risks which are not new..................................................................... 29 

1.3.  What the BER does not cover- Co(re) insurance on subscription markets................ 30 

2. 

2.1. 

Main findings of the review and analysis .................................................................. 30 

Question One: is the insurance sector special or different to other sectors such that it 
gives rise to an enhanced need for cooperation?........................................................ 30 

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2.2. 

Question Two: if the answer to Question one is positive, does this enhanced need for 
cooperation require a legal instrument in order to protect or facilitate it?................. 30 

2.2.1.  The need for a consistent approach regarding market share rules ............................. 30 

2.2.2.  Pools can benefit from the BER provided they meet certain strict conditions .......... 31 

2.2.2.1.  Some pools are outside the scope of the BER because they are necessary and as such 
do not give rise to a restriction of competition .......................................................... 32 

2.2.2.2.  Some pools are outside the scope of the BER because they do not comply with its 

conditions ................................................................................................................... 33 

2.2.2.3.  Some pools are within the scope of the BER............................................................. 35 

2.2.3.  The simple existence of the BER does not provide for automatic cover for pools.... 35 

2.2.3.1.  The relevant market.................................................................................................... 35 

2.2.3.1.1.Available guidance.................................................................................................... 35 

2.2.3.1.2.Uncertainty in practice despite the BER ................................................................... 36 

2.2.3.2.  The notion of "new risks" .......................................................................................... 37 

2.2.4.  Pools appear to have positive effects ......................................................................... 38 

2.2.5.  Risk of reduction in cooperation for pools................................................................. 38 

3. 

Conclusions and Proposals......................................................................................... 39 

V. SECURITY DEVICES........................................................................................................ 40 

1. 

Scope of the BER ....................................................................................................... 40 

1.1.  What the BER covers ................................................................................................. 40 

1.1.1.  Conditions of the BER ............................................................................................... 40 

1.1.2.  Link with the rules on the free movement of goods and services and on the freedom 

of establishment ......................................................................................................... 41 

1.2.  What the BER does not cover .................................................................................... 42 

1.2.1.  Agreements in areas which are harmonised at EU level............................................ 42 

1.2.2.  Agreements in areas which do not comply with the conditions provided in Article 9 

of the BER.................................................................................................................. 43 

2. 

2.1. 

2.2. 

Main findings of the Review and analysis ................................................................. 44 

Question One: is the insurance sector special or different to other sectors such that it 
gives rise to an enhanced need for cooperation?........................................................ 44 

Question Two: does this enhanced need for cooperation require a legal instrument 
such as the BER in order to protect or facilitate it? ................................................... 44 

2.2.1.  Competition issues on the downstream market for security devices ......................... 44 

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2.2.2.  The existence of obstacles to the free movement of goods and services ................... 44 

2.2.3.  The scope of the BER is significantly reduced or eliminated due to existing EU level 
harmonisation............................................................................................................. 45 

2.2.4.  Transparency and non-discrimination in standard-setting ......................................... 45 

2.3. 

Applicability of Article 81(3)..................................................................................... 46 

3. 

Conclusions and Proposals......................................................................................... 47 

VI. CONCLUSIONS................................................................................................................ 48 

1. 

2. 

Options and proposals ................................................................................................ 48 

Next Steps .................................................................................................................. 48 

ANNEX 1 Definitions.............................................................................................................. 50 

ANNEX 2 Replies to Consultation .......................................................................................... 52 

ANNEX 3 Questions from Consultation on Joint Calculations, Tables and Studies............... 55 

ANNEX 4 Questions from Consultation on Standard Policy Conditions and Models on Profits
.................................................................................................................................................. 56 

ANNEX 5 Questions from Consultation on Common Coverage of Risks (Pools).................. 57 

ANNEX 6 Questions from Consultation on Security Devices ................................................ 58 

ANNEX 7 General Questions from Consultation .................................................................... 59 

ANNEX 8 Questionnaires to Small and Medium Sized Insurers following Consultation ...... 61 

ANNEX 9 Questionnaires to Pools following Consultation.................................................... 63 

ANNEX 10 Questionnaires to Producer Federations concerning Security Devices following 
Consultation ............................................................................................................................. 64 

ANNEX 11 Fire Detection and Fire Alarm Systems-Harmonised European Standards ......... 66 

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I. 

INTRODUCTION 

1. 

1. 

2. 

3. 

4. 

5. 

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2 
3 
4 

5 

6 

BACKGROUND AND AIMS OF 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  four 
categories  of  agreements,  decisions  and  concerted  practices  in  the  insurance  sector 
namely  agreements  in  relation  to  (i)  joint  calculations,  tables  and  studies;  (ii)  standard 
policy conditions and models on profits; (iii) the common coverage of certain types of risks 
(pools); and (iv) security devices. 

The  European  Commission  (the  Commission)  is  required,  not later  than  six years  after 
the  entry  into  force3  of  the  BER  to  submit  a  report  (the  Report)  to  the  European 
Parliament and Council on the functioning of the BER.4 

The BER will expire by default on 31 March 2010. The intention of the Commission 
during 2008 was to review the functioning of the BER on the basis of a Consultation 
Paper  as  well  as  targeted  questionnaires  sent  to  certain  stakeholders  (the  Review). 
This  Review  was  carried  out  in  co-operation  with  the  European  Competition 
Network  (ECN).  The  findings  of  the  Review  to  date  are  included  in  the  Report  as 
well as this accompanying Working Document.  

It  should  be  noted  that  the  Report  and  Working  Document  confine  themselves  to 
presenting  the  Commission's  preliminary  views  on  the  functioning  of  Regulation 
358/2003  and  do  not  prejudge  in  any  respect  a  final  decision  on  the  outcome  of  the 
review.  The  Report  and  Working  Document  together  constitute  one  of  the  steps  in  a 
comprehensive consultation process to which all stakeholders are 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  agreements  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  agreements5  are  compatible  with  Article  81  of  the  Treaty.  Only  a  few  sectors 
currently benefit from a sector specific BER and there have been other sectors for which 
the relevant BER were not renewed.6. 

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 (Official 
Journal L 53, 28.02.2003). 
Wherever Article 81 is referred to in this document, the reference is to Article 81 of the EC Treaty. 
Commission Regulation (EC) No 358/2003 entered into force on 1 April 2003. 
This  requirement  was  laid  down  in  Article  8  of  Council  Regulation  (EC)  No  1534/91  (the  Implementing 
Regulation) empowering the Commission to adopt a block exemption regulation in the insurance sector. 
Wherever the term "agreements" is used in this document, it shall mean agreements, decisions and concerted 
practices. 
Recent  repeal  of  Council  Regulation  (EEC)  No  4056/86  laying  down  detailed  rules  for  the  Application  of 
Articles  85  and  86  [now  named  Articles  81  and  82]  of  the  Treaty  to  maritime  transport;  and  the  expiry  of 
Commission  Regulation  (EC)  No  1459/2006  on  the  application  of  Article  81(3)  to  certain  categories  of 
agreements  and concerted practices concerning consultations on passenger tariffs on  scheduled air  services 
and slot allocation at airports. 

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6. 

7. 

2. 

8. 

9. 

10. 

3. 

11. 

12. 

7 

The question now arises as to whether there are sufficient grounds to continue to declare 
by  regulation  Article  81(3)  applicable  to  certain  categories  of  agreements  in  the 
insurance sector.  

The BER applies only in relation to the specific categories of agreements and under the 
conditions set out in the BER. In that context it is important to note (though overlooked 
by many respondents to the Commission during the current Review as well as during the 
Sector Inquiry7) that even if a new BER is not adopted, this does not necessarily mean 
that agreements previously falling under the BER become illegal. An assessment under 
Article 81(1) and, if applicable, under Article 81(3) rather than under the BER would be 
required.  At  the  moment,  in  each  case  a  legal  assessment  must  also  be  undertaken  in 
order  for  undertakings  to  determine  whether  the  forms  of  cooperation  in  which  they 
participate fulfil the conditions imposed by the BER. 

PURPOSE AND SCOPE OF THE REPORT AND OF THE WORKING DOCUMENT 

The purpose of the Report and of the Working Document is to present the findings of the 
Commission's  review  of  the  functioning  of  the  BER  over  the  past  six  years  and  to 
present the Commission's initial analysis of whether the BER should be renewed. 

Through  this  work,  the  Commission's  intention  is  to  analyse  whether  competition  and 
consumers in the insurance sector are helped or hindered by the BER and whether any 
changes should be made to the current approach to the application of Article 81 in this 
area  in  particular  in  relation  to  each  of  the  four  forms  of  agreement  exempted  by  the 
BER from the prohibition of Article 81(1). 

The scope of the Report and of the Working Document covers all of the EU-27 Member 
States. 

INSURANCE MARKETS IN THE EU 

The Sector Inquiry Report contained an extensive account of how insurance markets are 
organized  in  the  EU,  including  a  significant  amount  of  original  research  by  the 
Commission services during the inquiry, which will not be repeated here. However, it is 
useful to recall briefly some salient features. 

Primary insurance markets for most risks tend to be national in scope, even when they 
are primarily served by consolidated multinational insurance groups. This is for a variety 
of reasons, of which the most important is probably the fact that insurance contracts are 
written under, and subject to, general national contract law as well as specific insurance 
law, and that liability issues similarly arise under national law which may substantially 
vary  from  one  jurisdiction  to  another.  In  addition,  there  is  a  need  for  a  local  presence, 
often for distribution and always for claims settlement, and language issues may arise. It 
is  natural  thus  to  characterise  the  organization  of  the  market  as  multi-domestic  and  to 

As noted in the Final Report, almost all replies failed to make a distinction between the necessity of the forms 
of cooperation covered by the BER, and the necessity of the BER itself. The primary initial objective of the 
BER was to exclude certain generic types of agreement from the ambit of Article 81(1) and limit the BER to 
those agreements for which it can be assumed with sufficient certainty, satisfy the conditions of Article 81(3) 
- thereby obviating the need for separate and time-consuming individual exemptions (see page 77 of the Final 
Report and the preamble to the BER). 

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exclude, in many cases, the possibility of any competitive constraint from cross-border 
providers short of actual entry. 

13. 

14. 

The mode of entry for insurers seeking to enter new markets has, to date, usually been 
through  acquisition  of  a  local  company  which  becomes  a  subsidiary  of  the  acquirer. 
Greenfield  entry  is  uncommon.  National  markets  tend  as  a  consequence  to  be  quite 
concentrated, especially in the major categories of risk. 

The insurance industry has tended not to be examined outside the industry with the same 
degree of interest as other areas of financial services. This is likely gradually to change, 
with the Commission's work on Solvency II8, the Insurance Mediation Directive9 and the 
BER particularly in the forefront of the debate. 

4. 

METHODOLOGY AND DATA 

4.1. 

Phase One (leading up to and including the Consultation Paper) 

15. 

16. 

17. 

18. 

19. 

DG  Competition,  in  November  2007  consulted  the  ECN  for  their  experience  and 
analysed its own relatively limited case experience in this area. It then began drafting a 
detailed  Consultation  Paper.  The  Consultation  was  opened  in  April  2008  for  three 
months  giving  a  significant  time  window  for  those  interested  to  present  evidence  for 
renewal or non-renewal. 

The Consultation Paper primarily sought information on the functioning of the BER in 
particular in relation to how, where and by whom it was being used. It first generally set 
out the comments which the Commission received in relation to the BER on the Sector 
Inquiry. It then went on to review each exemption under the BER individually setting out 
the comments from the Sector Inquiry, the comments received from the consultation of 
NCAs  on  the  functioning  of  the  BER  as  well  as  the  Commission's  considerations  and 
case experience in relation to the BER. Finally it asked a number of specific and detailed 
questions, both in relation to each exemption category and generally encouraging replies 
substantiated with evidence, from across the EU and all categories of stakeholders. 

In  order  to  facilitate  replies  from  a  wide  range  and  number  of  stakeholders  DG 
Competition  published  the  Consultation  in  English,  French  and  German  and  also 
published a detailed press release in all the EU's official languages. 

Replies  were  received  from  a  relatively  small  number  of  market  participants  as 
illustrated in the chart below. See also a list of respondents in Annex 2. The contents of 
the replies will be dealt with in detail in relation to each category of agreement exempted 
by the BER in the sections below. 

In order to cover all possible types of market participants, a first round of questionnaires 
was  also  sent  out  to  all  national  consumers  associations  and  to  several  associations  of 
undertakings 
(large  customers  and  SMEs).  Targeted 
questionnaires were sent to Supervisory Authorities in all Member States as well. 

representing  customers 

8 

9 

Proposal for a Directive of the European Parliament and of the Council on the taking-up and pursuit of the 
business of Insurance and Reinsurance - Solvency II, COM (2007) 361, 10 July 2007 
See http://ec.europa.eu/internal_market/insurance/mediation_en.htm 

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RESPONDENTS TO THE CONSULTATION

27

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6

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25

20

15

10

5

0

Insurance Associations

Insurers

Supervisory Authorities
Category of Respondents

Other entities

Consumers' Associations

4.2. 

Phase Two (leading up to the Report to the European Parliament and Council)  

20. 

Following closure of the Consultation, the Commission analysed the replies and sent out 
further detailed questionnaires in particular to categories of stakeholders from whom it 
had received either no or a very limited direct response, namely, smaller insurers, pools 
and producer federations/associations of security devices. 

21. 

Table: Replies to Follow-up questionnaires 

Respondent Group 

Organisations / Undertakings 

Replies Received  

to whom Questionnaires were 
sent10 

Small Insurers 

Pools  

Producer 

63 

37 

10 

Federations/Associations of 

producers of security devices 

TOTAL 

110 

19 

27 

2 

48 

10 

Contact details for Small Insurers and Pools were primarily provided by the European Insurance Association, 
CEA and supplemented by the Commission's market research. 

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22. 

23. 

24. 

These questionnaires were specifically targeted at how and in which instances the BER 
was being used. See Annexes 8, 9 and 10. 

All the non-confidential versions of the replies to the Consultation, with the exception of 
submissions from NCAs, have been published on DG Competition's website. 

Furthermore the Commission's Services had a number of meetings during this review to 
discuss  contributions  or  raise  other  questions  with  NCAs  as  well  as  with  a  range  of 
stakeholders, insurers, insurance associations and pools. 

4.3. 

The Sector Inquiry 

25. 

26. 

The  Commission  recently  completed  a  Sector  Inquiry  into  Business  Insurance  ('the 
Sector  Inquiry')11.  The  Sector  Inquiry  had  a  different  scope  to  this  Review  of  the 
BER:  first,  it  concerned  only  the  provision  of  insurance  products  and  services  to 
businesses in the Community; and second, it was aimed at 'better understanding the 
functioning  of  the  insurance  sector  with  a  view  to  ultimately  identifying  restrictive 
practices or distortions of competition. 

However, the Sector Inquiry also examined the use of the BER and market participants 
were invited to express their views on its necessity. The Interim Report was published on 
24  January  2007,  with  a  public  invitation  to  comment  on  its  findings  including  the 
application  of  the  BER12.  The  Commission  obtained  44  replies  from  insurance 
companies, brokers, insurers associations, NCAs, most of which13 have been published 
on the DG Competition's website14. 

27. 

The main arguments put forward by respondents to the public consultation in the Sector 
Inquiry were: 

•  Legal certainty is required as to the  antitrust status of a given practice, in the sense 

that the BER has a clarifying character as an exemption ipso jure. 

•  Costs deriving from the alleged additional administrative burden caused by assessing 
the  legal  compliance  costs  would  ultimately  be  passed  on  to  policyholders,  which 
would trigger an increase in insurance premiums. 

•  Fears were also expressed that without the BER, competition rules would be applied 

inconsistently across the 27 Member States of the EU. 

•  Market  participants  also  insisted  that  the  variations  in  the  use  of  the  BER  across 
Member  States  do  not  mean  that  the  BER  is  no  longer  useful.  They  explained  that 
differences  in  the  use  of  the  BER  may  originate  from  different  legislation  (high 
number  of  compulsory  insurance  policies  in  some  Member  States)  or  from  the  fact 
that  Member  States'  insurance  markets  are  at  different  stages  of  development  (e.g. 

11 

12 
13 

14 

On  13  June  2005,  the  Commission  initiated  a  sector  inquiry  into  the  provision  of  insurance  products  and 
services to businesses in the Community, based on article 17 of Council Regulation (EC) No 1/2003. See the 
Final Report of 25 September 2007 (The Communication from the Commission and The Commission Staff 
Working Document):  
http://ec.europa.eu/comm/competition/sectors/financial_services/inquiries/business.html 
See Section XI.3 of the Interim Report. 
With the exception of those labeled confidential in their entirety or for which no non-confidential version was 
provided. 
http://ec.europa.eu/comm/competition/sectors/financial_services/inquiries/replies_interim_report/index.html 

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countries in central and Eastern Europe have recently developed from monopolies to 
competitive markets). Some respondents interpreted the diverging use of the BER as 
a sign of competition, claiming that the BER is used most in Member States that are 
mature and highly competitive. 

•  The forms of cooperation allowed under the BER effectively facilitate  market entry 
for insurers with insufficient expertise. If there is better knowledge and accessible risk 
information, the argument is that this leads to more entry to the market (in particular 
by insurers with insufficient scale/historical expertise). 

•  Non-renewal  of  the  BER  would  cause  a  larger  number  of  compliance  issues  with 
supervisory authorities as a consequence of the fact that insurance companies would 
develop  their  activities  on  markets  on  which  they  are  not  specialised  but  no  longer 
have the benefit of access to the experience of other insurers. 

28. 

The  Commission's  Services  concluded  that  the  evidence  received  suggested  that  the 
practices covered by the BER are in most cases unproblematic or even desirable in the 
market.  However,  the  Commission  noted  that  the  Sector  Inquiry  did  not  produce 
"compelling reasons"15 to renew the BER, which may also cover some practices which 
distort  competition.  A  conclusion  on  this  matter  was  not  reached  as  it  was  outside  the 
scope  of  the  Sector  Inquiry  Report.  However,  the  Final  Report  encouraged  market 
participants to continue their reflection, in advance of the current Review, focusing more 
on  the  necessity  of  the  legal  instrument  of  the  BER  itself  than  on  the  necessity  of  the 
specific forms of cooperation covered by the BER. 

4.4. 

Consultation of NCAs 

29. 

During the consultation of NCAs on the functioning of the BER the following comments 
were received: 

•  Many  NCAs  consider  that  the  BER  is  used  as  a  justification  for  a  wide-range  of 
information  exchange.  This  may  result  in  a  restriction  of  competition.  Also,  it  was 
observed  that  co-insurance  groups  could  be  used  in  certain  cases  to  coordinate  and 
engage in cartel activity. 

•  One  NCA  considers  that  price  uniformity  in  the  sector  could  be  combated  by 

allowing the BER to expire. 

•  In  another's  experience,  data  sharing  on  risks  tends  to  overlap  with  a  general 
exchange  of  information,  including  commercial  premiums,  especially  in  the  motor-
vehicle insurance market. 

•  However,  the  ability  to  share  information  as  allowed  under  the  BER  may  decrease 
premium fees for consumers since insurers may need to tie up less capital if they have 
more information on risks. This may in turn facilitate entry for smaller insurers and 
for insurers established in other Member States and decrease administrative and other 
expenses. 

15 

Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions – Sector Inquiry under Article 17 of Council Regulation 
No. 1/2003 on Business Insurance (Final Report), paragraph 41.  

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•  Some  NCAs  noted  that  exchanges  of  information  are  only  performed  through  the 
National  Insurers'  Federation  and  there  are  no  direct  exchanges  of  information 
between  insurance  associations.  Furthermore,  insurers  appear  to  use  the  BER  for 
information sharing but only in the retail sector. There does not appear to be any data 
sharing in more concentrated business markets. 

•  New  entrants  to  a  Member  State  often  use  data  available  to  them  in  other  Member 

States where they are also active. 

•  Standard  policy  conditions  offered  by  insurers  based  on  net  prices  may  represent 
agreements on discounts. These are not binding but they do provide an indication to 
insurers of the kind of discounts that can be offered. Such systematic approaches go 
beyond the exemptions envisaged by the BER and Article 81(3). 

•  Some NCAs are against renewal and consider that there are no elements to justify the 
continuance of a specific insurance BER fixing rules which are different from those 
applying  to  other  sectors.  They  consider  that  insurers  should  self-assess  their 
agreements on the basis of Article 81(3), as is required in other sectors. 

•  A few NCAs were more in favour than against renewal on the basis of the following 
arguments: i) the BER enables more accurate calculation of risks to the advantage of 
newcomers  and  smaller  companies,  particularly  with  regards  to  facilitating  market 
entry; ii) the BER is consequently a source of market diversity, lower premiums and 
higher  transparency  for  consumers;  iii)  they  have  not  experienced  competition 
problems in applying the BER; iv) the BER may facilitate the consistent application 
of  competition  rules  across  27  Member  States;  v)  cooperation  on  standard  policy 
conditions  makes  it  easier  for  buyers  to  switch  insurance  providers  and  results  in 
cheaper premiums for the buyer as long as these conditions are non-binding; vi) the 
BER  can  be  an  instrument  of  legal  certainty;  and  vii)  the  insurance  industry  has  a 
unique nature raising problems of information asymmetry. 

•  A  recent  Report  from  the  EFTA  Surveillance  Authority  concerning  its  own  sector 
inquiry  into  business  insurance  in  the  EFTA  States  shows  that  it  is  highly 
concentrated  and  that  insurers  do  not  rely  on  shared  data  to  calculate  risk  for  most 
insurance  classes  (except  for  a  few  cases  limited  to  specific  insurance  classes 
typically with a relatively low share of gross premiums written).16  

APPROACH TO ANALYSIS OF WHETHER TO RENEW BER 

The  Working  Document  deals  in  Chapters  II  to  V  with  each  of  the  four  categories  of 
agreements  that  are  exempted  under  the  BER.  At  the  end  of  each  Chapter,  the 
Commission draws together the conclusions of its analysis and makes proposals for the 
future of the BER. 

In  relation  to  each  of  the  four  categories  of  agreement  exempted  by  the  BER,  the 
analysis  as  to  whether  or  not  to  renew  it  follows  the  same  analytical  process  by 
addressing a number of key questions. Those key questions are: 

The  EFTA  Surveillance  Authority  acknowledges  that  the  results  of  the  survey  are  biased  towards  larger 
insurers  (due  to  an  over-representation  of  large  insurance  companies);  and  that  smaller  insurers  may  use 
external databases to a larger extent. 

5. 

30. 

31. 

16 

EN 

12 

   EN 

                                                   
(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 the answer to the question in (a) is positive this gives rise to a second question as 
to whether this enhanced need for cooperation requires a legal instrument such as 
the BER or Guidance to protect or facilitate it (in comparison to other sectors for 
example, where there a high level of cooperation without such a legal instrument); 
and 

if the answers to the questions in (a) and (b) are positive this in turn raises a third 
and final question as to 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). 

32. 

In  order  to  answer  the  above  questions  the  Commission's  Services  considered  the 
following issues: 

(i)  whether  there  is  a  significant  and  real  risk  that  there  would  be  less 
cooperation (i.e. that a category of agreements would not be entered into) in 
the  event  of  non-renewal  to  the  disadvantage  of  both  competition  and 
consumers or have other negative consequences; 

(ii)  whether the BER is currently being used and if so in which Member States, 
for  which  insurance  lines  and  which  forms  of  cooperation  are  used  most 
intensively; 

(iii)  whether  alternative,  reasonable  and  practicable  arrangements  could  not  be 

made which would create greater benefits to consumers; and 

(iii)  pro-competitive and consumer aspects of each category of agreement under 

the BER. 

5.2. 

If the BER is not renewed 

33. 

If the BER is not renewed, or is partially renewed, an analysis under Article 81(1) and, if 
appropriate, under Article 81(3) should be undertaken. 

5.2.1.  Applicability of Article 81(1) of the Treaty  

34. 

It is possible that an agreement or pool does not give rise to a restriction of competition 
and  is  therefore  not  caught  by  Article  81(1).  This  would  be  the  case  for  instance  as 
regards  pool  members  which  are  not  actual  or  potential  competitors,  as  explained  in 
Chapter IV, Section 2.2.2.1. Moreover, agreements whose activity do not influence the 
relevant parameters of competition because they are of minor importance and/or do not 
appreciably affect trade between Member States17 are not caught by Article 81(1). 

17 

Commission Notice on agreements of minor importance which do not appreciably restrict competition under 
Article 81(1) of the Treaty, OJ C 368, 22.12.2001, p.13 and Guidelines on the effect on trade concept , OJ C 
101, 27.4.2004, p.81. 

EN 

13 

   EN 

                                                   
5.2.2.  Applicability of Article 81(3) of the Treaty 

35. 

36. 

37. 

38. 

39. 

40. 

41. 

Where forms of cooperation are caught by Article 81(1) of the Treaty, the undertakings 
involved need to ensure that they fulfil the four cumulative conditions of Article 81(3)18. 

Any restrictive agreements that fulfil the four conditions of Article 81(3) are covered by 
its exemption from prohibition. This analysis incorporates a sliding scale. The greater the 
restriction of competition found under Article 81(1), the greater the efficiencies and the 
pass-on to consumers must be. 

It is up to the undertakings involved to demonstrate that the cooperation they are part of 
promotes  technical  or  economic  progress  in  the  form  of  efficiency  gains.  This  is 
discussed  further  in  relation  to  each  of  the  chapters  below.  In  addition,  where  an 
exemption under the BER is not renewed, the Commission intends to give reasons in a 
Communication  stating  that  it  will  not  renew.  It  is  also  likely  to  include  the  extent  to 
which the Commission considers that the conditions of the current BER can be used as 
guidance in this event. 

Consumers must receive a fair share of the efficiencies generated. Under Article 81(3) of 
the Treaty, it is the beneficial effects on all consumers in the relevant market that must 
be taken into consideration, not the effect on each individual consumer19. The pass-on of 
benefits must at least compensate consumers for any actual or potential negative impact 
caused to them by the restriction of competition under Article 81(1)20. 

An agreement must not impose restrictions that are not indispensable to the attainment of 
the efficiencies. In this respect it is necessary to examine whether the parties could have 
achieved the efficiencies on their own. 

Finally,  the  cooperation  in  question  must  not  afford  the  parties  the  possibility  of 
eliminating competition in respect of a substantial part of the services in question. 

All  positive  effects  of  an  agreement  including  those  mentioned  by  respondents  to  the 
Consultation  and  Questionnaires  can  be  considered  on  a  case-by-case  basis  when 
undertaking a legal analysis under Article 81(1) and (3). 

II. 

JOINT CALCULATIONS, TABLES AND STUDIES 

1. 

SCOPE OF THE BER 

1.1.  What the BER covers 

1.1.1.  Agreements which relate to certain joint calculations and tables 

42. 

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, 

18 
19 

20 

Guidelines on the application of Article 81(3), OJ C 101, 27.4.2004. 
Judgement  of  the  Court  of  Justice  of  23  November  2006  in  Case  C-238/05,  Asnef-Equifax  v  Asociation  de 
Usuarios de Servicios Bancarios (Ausbanc), (2006) ECR I-11125, paragraph 70. 
Guidelines on the application of Article 81(3), cited above in footnote n° 16. 

EN 

14 

   EN 

                                                   
mortality  tables,  and  tables  showing  the  frequency  of  illness,  accident  and  invalidity 
(Tables). 

43. 

Agreements in relation to (i) and (ii) above are covered by the BER only on condition 
that they are: 

(1) 

based  on  the  assembly  of  data,  spread  over  a  number  of  risk-years  chosen  as  an 
observation  period,  which  relate  to  identical  or  comparable  risks  in  sufficient 
number to constitute a base which can be handled statistically and which will yield 
figures on (inter alia): 

•  the number of claims during the said period, 

•  the number of individual risks insured in each risk-year 

•  of the chosen observation period, 

•  the total amounts paid or payable in respect of claims 

•  arisen during the said period, 

•  the  total  amount  of  capital  insured  for  each  risk-year  during  the  chosen  observation 

period; 

(2) 

(3) 

include  as  detailed  a  breakdown  of  the  available  statistics  as  is  actuarially 
adequate; 

do  not  include  in  any  way  elements  for  contingencies,  income  deriving  from 
reserves, administrative or commercial costs or fiscal or para-fiscal contributions, 
and take into account neither revenues from investments nor anticipated profits. 

Furthermore, the BER applies only where the results of the calculations, or tables: 

(4) 

do not identify the insurance undertakings concerned or any insured party; 

(5)  when compiled and distributed, include a statement that they are non-binding; 

(6) 

are made available on reasonable and non-discriminatory terms, to any insurance 
undertaking  which  requests  a  copy  of  them,  including  insurance  undertakings 
which  are  not  active  on  the  geographical  or  product  market  to  which  those 
calculations or tables results refer. 

1.1.2.  Agreements which relate to the joint carrying-out of certain studies 

44. 

The  BER  (Article  1(b))  exempts  agreements  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. 

45. 

Similarly  to  the  calculations  and  tables  mentioned  above,  the  BER  only  covers  these 
agreements on condition that the study results: 

(1) 

do not identify the insurance undertakings concerned or any insured party; 

EN 

15 

   EN 

(2)  when compiled and distributed, include a statement that they are non-binding; 

(3) 

are made available on reasonable and non-discriminatory terms, to any insurance 
undertaking  which  requests  a  copy  of  them,  including  insurance  undertakings 
which  are  not  active  on  the  geographical  or  product  market  to  which  those 
calculations or tables results refer. 

1.2.  What the BER does not cover 

46. 

Agreements in relation to the joint calculations, tables and studies will not be covered by 
the  BER  where  participating  undertakings  enter  into  an  undertaking  or  commitment 
among  themselves,  or  oblige  other  undertakings,  not  to  use  calculations  or  tables  that 
differ from those established as outlined in Article 1(a) of the BER (set out above) or not 
to depart from the results of the studies referred to in Article 1(b) (also set out above). 

2. 

MAIN FINDINGS OF THE REVIEW AND ANALYSIS 

2.1. 

Question One: is the insurance sector special or different to other sectors such that 
it gives rise to an enhanced need for cooperation in this area? 

2.1.1.  Data from joint calculations, tables and studies is important in order to price risks in the 

insurance sector 

47. 

48. 

49. 

The costs of insurance products are unknown at the time the price is agreed and the risk 
covered.  This  makes  access  to  past  statistical  data  crucial  in  order  to  technically  price 
risks. Some respondents to the Consultation and targeted Questionnaires argued that the 
availability of this kind of data is very important in order for them to be able to reliably 
assess  risk,  build  stochastic  models,  correctly  analyse  cost  and  choose  a  price  by 
calculating the risk exposure on the basis of historical data. 

Since  calculation  of  risk  is  a  key  issue  in  pricing  all  insurance  products,  this  aspect 
appears to be a differentiating factor from other sectors including the banking sector.21 
Although, the UK NCA has pointed out that this form of cooperation is not being used in 
the  UK,  which  could  be  an  indication  that  it  is  not  specific  to  the  insurance  industry, 
insurers in the majority of Member States argue that they do cooperate in this area and 
continue to emphasise the importance of this cooperation for their activities. 

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 may be necessary 
(in at least most Member States) in order to price risks. In particular, most respondents 
on this issue highlighted  that, in the absence of the BER, the  competitiveness of small 
insurance companies would decrease, driving smaller insurers out of the market, due to 
the restricted size of their portfolio. 

21 

Credit  registers  in  the  field  of  banking  seem  to  be  a  similar  feature.  However,  there  are  a  number  of 
fundamental  differences.  Credit  registers  are  often  run  by  private  companies,  they  are  often  only  'negative 
lists' (i.e. bad clients). Furthermore, Banks can ask for collateral whereas insurance companies have no such 
option. 

EN 

16 

   EN 

                                                   
2.2 

Question Two: If the answer to question one is positive, does this enhanced need for 
cooperation require a legal instrument in order to protect or facilitate it? 

2.2.1.  Cooperation is useful, particularly for small and medium sized insurers 

50. 

51. 

52. 

53. 

54. 

Agreements  which  increase  the  number  of  insurers  potentially  capable  of  covering  a 
given risk generally increase market access and competition. The fact that major insurers 
are allowed to engage in cooperation on the calculation of risk cover may enable entry of 
small  and  medium  sized  firms.  It  appears  that  large  insurers  can  also  generally  benefit 
from a broader statistical base, even if their internal statistics would have been sufficient. 
However,  grouped  statistics  must  be  justified  by  similarity  of  risks,  if  necessary 
interpreted  sufficiently  broadly  to  reach  the  minimum  size  having  statistical  relevance, 
but not resulting in the grouping of obviously disparate risks. 

The vast majority of respondents drew our attention to the industry need to cooperate on 
this issue and connected it to the existence of the BER. 

One  could  argue  that  the  pro-competitive  character  of  such  cooperation  on  statistics 
would,  even  in  the  absence  of  the  BER,  not  fall  under  Article  81(1)  or  would  be 
exempted under Article 81(3). However, an argument submitted not only by insurers, but 
also by some supervisory authorities and a risks management federation 22 is that without 
the BER, insurers would no longer cooperate on joint calculations, tables and studies or 
would not share the outcome of any 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 without the condition in the BER requiring that where 
such  agreements  do  exist,  the  resulting  calculations,  tables  and  studies  must  be  made 
available on reasonable and non-discriminatory terms. However, it should be noted that 
insurance companies are under regulatory pressure (for example, under the Solvency II 
Directive)  to  exchange  information  and  improve  their  risk  management  systems. 
Whereas  the  BER  requires  that  when  insurance  companies  enter  into  these  forms  of 
cooperation, they must give access to the information compiled, on a non-discriminatory 
basis,  to  other  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  since  assessing  risk  on  the  basis  of  their  own 
tables and studies alone would be insufficient to allow them to cover certain risks. Some 
respondents  pointed  out  that  cooperation  on  joint  calculations,  tables  and  studies  is 
necessary in order to allow new entry (in particular greenfield entry) and that the absence 
of  such  cooperation  would  lead  to  the  creation  of  entry  barriers,  which  would  in  turn 
increase  the  concentration  in  the  market,  limit  the  supply  of  insurance  products  and, 
consequently, decrease competition. Consumers in turn would be negatively affected by 
a reduced range of insurance products, from fewer insurance companies. 

A  number  of  respondents  during  the  Review  in  particular  small  and  medium  sized 
insurers said they could not have entered the market with the use of this part of the BER. 
Arguments were also made that (a) competition is increased by the availability of data 
that  small  companies  can  directly  and  easily  find  and  (b)  that  transparency  of  the 
historical data and publication of market trends are important tools in the formation of a 

22 

FERMA (Federation of European Risks Management Associations). 

EN 

17 

   EN 

                                                   
55. 

56. 

correct  cost  related  price.  Moreover,  customers  can  easily  (c)  choose  among  products 
and services and (d) better compare between them. 

Furthermore,  on  the  basis  of  the  evidence  before  the  Commission,  it  appears  that  the 
newer  a  market  is,  the  more  important  it  is  to  have  access  to  the  data  from  joint 
calculations, tables and studies in order to assist entrants to accurately assess risk. 

The antitrust regime for insurance in the US is notably different to that in the EU. The 
US McCarran-Ferguson Act of 1945 provides a targeted exemption from antitrust laws, 
for  certain  limited  insurance  activities23,  whereas  in  the  EU,  the  BER  is  only  a 
presumption  that  Article  81(3)  applies,  -  meaning  that  these  categories  are  within  the 
scope  of  competition  law  (Article  81(1)  applies  in  the  first  place).  The  McCarran-
Ferguson  exception  was  discussed  in  a  Report24  issued  by  the  Antitrust  Modernisation 
Commission  (AMC)  on  3  April  2007  which,  although  it  did  not  call  for  an  outright 
repeal  of  the  exemption  allowing  insurers  to  share  data,  did  recommend  that  the 
McCarran-Ferguson Act should be further reviewed by the US Congress. 

2.2.2.  Cooperation increases consistency in terms of Solvency II25 

57. 

Another argument from some respondents to the Consultation was that non-cooperation 
in  this  field  would  hamper  the  implementation  of  Solvency  II,  which  encourages  data 
exchange  between  insurers.  Solvency  II  will  impose  a  new  risk-sensitive  solvency 
regime and will require firms to have high-quality risk management and actuarial data. 
Whilst not imposing the use of pooled and external data, it is implicitly accepted in the 
ongoing  Solvency  II  debate  that  the  use  of  such  data  would  facilitate  compliance  with 
the standards envisaged in the new regime. 

2.2.3.  Alternatives to cooperation 

58. 

59. 

23 

24 

25 

Some respondents to the Consultation and Questionnaires made clear that alternatives to 
horizontal  cooperation  do  exist.  In  particular,  insurers  could  add  to  their  research  and 
development  staff  in  order  to  conduct  market  surveys  and  analyses  themselves. 
Alternatively,  best  practice  may  be  for  governments  or  public  organisations  to  collect 
and  publish  data.  However  the  evidence  appears  to  be  that  the  first  option  is  not  an 
efficient  way  to  achieve  this  goal  and  that  the  second  is  not  necessarily  a  resource 
priority for public organisations or governments. 

The  Commission's  Services  considered  the  question  of  whether  cooperation  in  this 
area is so important to the insurance industry, that the legal risks caused by any lack 
of legal certainty would, be secondary to the need to cooperate and as such would not 
significantly restrict it. However, it appears at this stage that even if the risk may be 
low,  the  possibility  that  such  pro-competitive  cooperation  may  be  diminish,  should 
be avoided. 

This exemption (amongst other things which are irrelevant to this question) allows insurance companies to 
exchange  data  regarding  losses  and  other  factors  and  allows  the  development  of  standardised  policy 
language.  
This Report addressed, inter alia, the argument that the exemption is necessary for insurers to share data and 
that this exemption, and the shared data, in particular benefits smaller insurers. AMC found the justification 
"questionable" and responded that, under the current application of antitrust law, the data sharing would be 
evaluated  under  the  rule  of  reason  that  would  take  into  consideration  the  pro-competitive  effects  of  the 
activity.  
The  Commission  adopted  the  Solvency  II  Directive  Proposal  in  July  2007,  with  the  aim  of  modernising 
regulation and supervision in the insurance sector. 

EN 

18 

   EN 

                                                   
60. 

Thus, it appears that there are good reasons to protect and facilitate the agreements on 
cooperation  in  this  area.  The  next  question  is  to  consider  whether  the  current  BER  is 
doing this effectively. 

2.3. 

Question  Three:  if  the  answer  to  question  two  is  positive,  what  is  the  most 
appropriate legal instrument? 

2.3.1.  Questions about the scope of the current BER 

61. 

62. 

63. 

64. 

The  Commission's  Services  considered  the  question  of  whether  a  blanket  block 
exemption such as the current BER may be too broad in its risk coverage for the three 
reasons: 

First, certain statistics, such as the production of mortality tables, seem to require little 
cooperation  since  life  expectancies  are  widely  known,  often  published  and  are  not 
subject  to  sudden  and  large  changes.  Some  information  can  be  found  in  population 
dynamics  research  or  public  available  information;  for  example,  in  Italy,  ISTAT 
provides  tables  concerning  the  Italian  population  concerning  demographic  risk  and 
behavioural tendencies. However, several respondents also pointed out that government 
information is often only partial, inadequate or difficult to find or access. 

Second, more pro-competitive solutions may exist to overcome the information problem 
in particular instances. For example, if policy holders were rated and this information is 
communicated to them, they can switch insurance companies  carrying this information 
with them.  

Third, it is not clear to what extent the uncertainty underlying premium calculation is not 
a normal business risk. However, some respondents highlighted particular circumstances 
where  risk  information  can  be  only  obtained  by  the  common  efforts  of  the  whole 
insurance industry, especially in the case of information on natural catastrophes; because 
the access to such data would be too cost-intensive and time-consuming. 

2.3.2.  Exemption under the BER – current thinking 

65. 

26 

27 

Agreements that set pure and risk premiums have been exempted by the BER26, as they 
are not prices, but statistical indicators.27 The commercial (or gross) premium is the price 

Complaint  against  Italian  legislation  establishing  a  claims  settlement  system  (2007):  The  complainant 
alleged that the direct settlement system imposed by the Italian legislation requiring insurance companies to 
enter into an agreement whereby claims settlement should be performed on the basis of average costs of risks 
in  the  past  was  anticompetitive.  The  complainant  argued,  inter  alia,  that  insurers  will  set  commercial 
premiums not on the basis of supply and demand but instead on standardised average costs based on the cost 
of claims borne by all member companies. The complaint was rejected. First, contrary to these allegations, 
the  claims  settlement  system  does  not  oblige  insurance  companies  to  set  insurance  rates  on  standardized 
average costs, but to establish financial settlements on the basis of average costs, calculated on the basis of 
claims  actually  paid  during  the  previous  year.  Secondly,  the  joint  establishment  and  distribution  of 
calculations of the average costs of covering a specified risk in the past is permitted, under certain conditions, 
by Articles 1a) and 3 of the BER.  
The  Test  Achats  complaint  (1995):  The  case  involved  the  Belgian  professional  association  of  insurance 
companies  (UPEA)  and  had  been  communicated  to  the  Commission  by  the  Belgian  consumer  association, 
Test  Achats.  It  had  complained,  inter  alia,  about  a  recommendation  from  UPEA  aiming  to  establish  a 
minimum  pure  premium  for  the  coverage  of  hospital  expenses  in  the  case  of  group  contracts.  There  was  a 
uniform premium for contracts with groups containing up to 10 members and reductions for contracts with 
larger  groups.  There  was  nothing  to  indicate  that  this  recommendation  was  based  on  statistical  data.  The 
Commission  consequently,  concluded  that  the  recommendation  was  not  covered  by  the  BER.  The 
recommendation was withdrawn and the file closed. 

EN 

19 

   EN 

                                                   
that the insured pays to cover a given risk and corresponds to the risk premium plus the 
administrative  costs  and  the  profit  margin  of  the  individual  insurer.  The  risk  premium 
reflects  the  net  cost  of  the  cover  and  is  fixed  by  first  determining  the  pure  (or  net) 
premium, which is based on the statistical data concerning the frequency and the average 
intensity  of  the  risk  in  the  past,  and  by  then  applying  to  it  a  coefficient  which  takes 
account of forecasts of the future occurrence of the risk. 

On  the  other  hand,  agreements  that  set  or  recommend  uniform  commercial  premiums 
have  been  considered  price-fixing  agreements  falling  within  Article  81(1)28  of  the  EC 
Treaty and not normally capable of being exempted. 

In practice, both the Commission's and NCAs' consider the possibility that cooperation is 
a  cover  for  the  anti-competitive  exchange  of  information,  as  was  the  case  in  Italy  or, 
most  recently,  in  Bulgaria.  Following  a  general  inquiry,  the  Italian  Competition 
Authority  criticised  the  maintenance  of  a  uniform  system  of  parameters  with  similar 
values  to  calculate  repairing  costs  as  one  of  the  major  causes  of  the  increase  in 
premiums. Although A.N.I.A (The Italian Insurers' Association) formally abandoned the 
system,  it  continued  to  encourage  the  insurance  companies  to  follow  the  same  criteria 
and  was  fined  for  infringing  Article  81(1)  in  2005.  The  Bulgarian  NCA  adopted  a 
decision29 in July 2008 against insurers who agreed, to define and respect the common 
minimum  risk  premium  in  their  activities.  Risk  premiums  established  by  insurers 
actually  became  commercial  premiums  (final  insurance  prices)  as  soon  as  the  parties 
agreed to "obey the common minimum risk premium…when determining their minimum 
tariffs  and  not  to  allow  conclusion  of  insurance  on  prices  below  the  thus  determined 
minimum threshold". This was considered price fixing and so was outside the scope of 
the BER. 

Also, individual instances of widespread practices30, when they result from agreements 
between undertakings, may fall within the scope of Article 81(1).31 

In some cases, the infringing recommendations were abandoned and the cases closed.32 
The  Commission  has  sometimes  started  ex-officio  investigations  in  order  to  check  if 

Case  45/85  Verband  der  Sachversicherer  e.V.v  Commission  (1987)  ECR  405:  The  German  Association  of 
Property Insurers recommended increases in commercial premiums for industrial fire and consequential loss 
insurance in specified circumstances. Although the recommendation was stated to be non-binding, the Court 
held that it reflected the Association's aim to coordinate the conduct of its members. 
CPC  Decision  №  576/15.07.2008  on  CPC  Case  №  KZK-765/20.12.2007.  After  the  appeal  before  the 
Supreme Administrative Court (SAC) the Decision was confirmed by the court which rejected the appeals of 
all  the  appellants.  The  SAC  judgment  is  currently  being  appealed  before  the  Court  of  Cassation  whose 
decision will be final.  
As  a  result  of  the  Commission's  investigations  during  the  Sector  Inquiry,  it  appeared  that  widespread 
practices in both co-reinsurance and coinsurance markets almost always results in an alignment of premiums 
and other conditions of coverage. Potential co(re)insurers are asked to indicate the share of the cover and the 
price they would be willing to accept. Once a lead insurer has been determined, the broker will negotiate and 
agree  terms  and  premiums  with  this  insurer.  The  broker  subsequently  approaches  the  follow  market  to  fill 
100% of the cover and advises the following co-insurers the same terms and conditions, including premium, 
as the ones agreed upon with the lead-insurer. 
Paragraph 15 of the Communication of the Commission on the Sector Inquiry of 25 September 2007:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0556:FIN:EN:PDF 
E.g.:  Commission  Decision  93/3/EEC  of  4  December  1992  -  Lloyd's  Underwriters'  Association  and  The 
Institue  of  London  Underwriters  OJ  L004,  08/01/1993  p.26-31:  The  Joint  Hull  Understandings  agreement 
recommended minimum increases in premiums, fixed the rate of increase in deductibles and fixed the rebate 
paid for prompt cash payment and for deferred payment. The notification carried out by UPEA (The Belgian 
professional association of insurance companies) in 1988: This case involved a recommendation concerning 
the calculation of premiums for so-called special risks, concerning fire coverage for properties with a value 

66. 

67. 

68. 

69. 

28 

29 

30 

31 

32 

EN 

20 

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70. 

71. 

some  recommendations  of  insurance  associations  met  all  conditions  of  the  BER.33 
Insurance associations have also been fined by NCAs34 for cooperation infringing Article 
81(1). 

It  should  be  noted  that  the  Commission  also  now  considers  that  calculations  on  pure-
premiums should be non-binding.35  

However, these cases concern cooperation on commercially sensitive information which 
is outside the scope of the BER and which can be sanctioned both in the absence and in 
the  presence  of  the  BER.  On  the  basis  of  the  evidence  before  the  Commission, 
cooperation within the limits of the BER appears to be generally pro-competitive. 

2.3.3  Whether BER is most appropriate and if so in what form? 

72. 

73. 

33 

34 

35 

On the basis of the analysis above and the evidence before it, the Commission considers 
there to be particular risks in relation to the non-renewal of this exemption which lead to 
a relatively high risk of smaller/foreign insurers being driven out of or being prevented 
from  entering  the  market.  This  may  result  in  adverse  consequences  for  consumers. 
Without  the  BER,  large  insurers  may  continue  to  cooperate  without  the  explicit 
obligation  in  the  BER  to  share  data  with  smaller/foreign  insurers  (in  order  for  such 
agreements to fall under the BER). Moreover, renewing this particular exemption might 
avoid possible inconsistency with the Solvency II principles and other EU directives. 

The  current  BER  appears  to  be  working  effectively  for  competition  and  consumers. 
However,  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.  In  terms  of 
improving  the  current  exemption,  the  Commission  will  consider  a  range  of  options 
including (i) whether the scope of this exemption can be narrowed on the basis of risk 

above  a  certain  amount.  Having  regard  to  the  considerable  divergences  between  the  premiums  charged  by 
insurers,  the  Commission  restricted  itself  to  informing  the  association  of  the  incompatibility  of  its 
recommendation with the BER and finally closed the case without further action. The notification submitted 
by  UNESPA  (Unión  Española  de  Entidades  Aseguradoras  y  Reaseguradotas)  in  2000:  This  notification 
involved  a  decision  of  an  association  of  undertakings  (UNESPA)  related  to  the  creation  of  a  database 
containing the history of the contracts signed-up by the policy-holders of motor vehicle insurance, as well as 
the damages linked with these contracts for previous last five years. The periodic exchange of information, 
the  sensitivity  of  the  information  exchanged  (lists  of  clients,  price  elements)  and  the  homogeneity  of  the 
products  led  the  Commission  to  appreciate  that  this  exchange  of  information  agreement  facilitated  or 
encouraged the anti-competitive behaviour of the insurance companies participating in it.  
In  1997,  an  ex-officio  procedure  was  started  by  the  Commission  in  relation  to  certain  A.N.I.A  (The  Italian 
Insurers'  Association)  recommendations.  The  investigation  proved  that  A.N.I.A  did  not  collect  data  on 
commercial  premiums,  nor  recommend  commercial  premiums.  However,  the  investigation  showed  that 
insurance companies based their tariffs on very similar parameters (for instance: bonus/malus; type of fuel; 
age of the policyholder) to which they attributed similar values. The Italian Competition Authority fined 38 
insurance  companies  for  exchange  of  information  by  concerted  practices  in  the  branch  of  motor  vehicle 
insurance. The Commission then closed its case.  
Following  a  general  inquiry,  the  Italian  Competition  Authority  criticised  the  maintenance  of  a  uniform 
system  of  parameters  to  calculate  repairing  costs  as  one  of  the  major  causes  of  the  increase  in  premiums. 
Although  A.N.I.A  formally  abandoned  the  system,  it  continued  to  encourage  the  insurance  companies  to 
follow the same criteria and was fined for infringing Article 81(1) in 2005. 
Commission Decision 84/191/EEC of 30 March 1984 – Nuovo CEGAM, OJL 099, 11/04/1984, p.29-37: An 
Italian association of insurers agreed not only to set pure premiums for industrial engineering insurance, but 
also  to  apply  them  jointly.  The  Commission  exempted  the  agreement  as  it  considered  that  it  brought  new 
competition onto the market (the members of the association collectively had a 26% market share while their 
largest competitor had a 25% market share).  

EN 

21 

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type;  (ii)  adding  further  examples  of  information  which  may  be  shared  and  of 
commercially  sensitive  information  which  may  not  be  shared;  and  (iii)  adding  a 
transparency  requirement  such  that  shared  information  should  be  more  easily/freely 
accessible  to  non-insurance  companies  such  as  consumer  organisations  or  private 
individuals. 

3. 

74. 

CONCLUSIONS AND PROPOSALS 

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. 

EN 

22 

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III.  STANDARD POLICY CONDITIONS AND MODELS 

1. 

75. 

SCOPE OF THE BER 

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 profits36. 

1.1.  What the BER covers  

1.1.1.  Agreements on SPCs 

76. 

Agreements  on  the  joint  establishment  and  distribution  of  non-binding  SPCs  are  only 
permitted under the BER on condition that they are established and distributed with an 
explicit  statement  that  they  are  non-binding  and  that  their  use  is  not  in  any  way 
recommended. Furthermore, such agreements on SPCs are only exempt under the BER if 
they  expressly  mention  the  participating  undertakings  are  free  to  offer  different  policy 
conditions  to  their  customers  and  are  accessible  to  any  interested  person  (provided 
simply upon request).37 

1.1.2.  Agreements on Models on Profits 

77. 

78. 

Agreements  on  the  joint  establishment  and  distribution  of  non-binding  models 
illustrating the profits to be realised from an insurance policy involving an element of 
capitalisation  (Models)  are  only  exempt  under  the  BER  from  the  prohibition  in 
Article 81(1) on condition that these Models are established and distributed only by 
way of guidance. 

The  Commission's  Services  received  no  comments  from  respondents  during  the 
course  of  its  Review  in  relation  to  models  on  profits.  This  category  of  agreements 
will therefore not be analysed further in this document. 

1.2.  What the BER does not cover 

79. 

36 
37 
38 

As  mentioned  above  there  are  strict  conditions  which  must  be  fulfilled  before  an 
agreement  on  SPCs  will  be  covered  by  the  BER.  Furthermore  the  BER  will  not  cover 
SPCs  which  include  clauses  which  for  example  contain  any  indication  of  the  level  of 
commercial premiums; or require the policyholder to obtain cover from the same insurer 
for different risks.38 

Illustrating the profits to be realised from an insurance policy involving an element of capitalisation. 
Article 1 and 5 of the BER. 
A  list  of  agreements  which  exclude  cover  by  the  BER  is  contained  in  Article  6  of  the  BER,  namely, 
agreements which (a) contain any indication of the level of commercial premiums; (b) indicate the amount of 
the  cover  or  the  part  which  the  policyholder  must  pay  himself;  (c)  impose  comprehensive  cover  including 
risks to which a significant number of policyholders are not simultaneously exposed; (d) allow the insurer to 
maintain the policy in the event that he cancels part of the cover, increases the premium without the risk or 
the scope of the cover being changed (without prejudice to indexation clauses), or otherwise alters the policy 
conditions  without  the  express  consent  of  the  policyholder;  (e)  allow  the  insurer  to  modify the  term  of  the 
policy  without  the  express  consent  of  the  policyholder;  (f)  impose  on  the  policyholder  in  the  non-life 
assurance  sector a contract period of more than three years; (g) impose a renewal period of more than one 

EN 

23 

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2. 

MAIN FINDINGS OF THE REVIEW AND ANALYSIS 

2.1. 

Question One: is the insurance sector special or different to other sectors such that 
it gives rise to an enhanced need for cooperation? 

2.1.1. 

SPCs are not specific to the insurance sector 

80. 

81. 

82. 

2.2. 

83. 

Several insurers and insurers associations (for instance the LMA in the UK) argue that 
cooperation in order to establish standard policy conditions (SPCs) ensures that the costs 
incurred  by  insurers  and  in  turn  the  premiums  they  charge  to  customers  are  kept  low. 
They  argue  that  without  the  BER,  there  would  be  an  increase  in  insurers'  and  brokers' 
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 (as discussed below). However the question for this review 
is primarily whether this category of agreements is special 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  and  not 
specific to the insurance sector. SPCs are used in some of these sectors without the cover 
of sector-specific 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 furthermore, that the absence of such a framework has not 
caused any tangible difficulties for banks. 

Question Two: does this enhanced need for cooperation require a legal instrument 
in order to protect or facilitate it? 

As  discussed  above  it  appears  that  that  co-operation  on  SPCs  is  not  specific  to  the 
insurance  sector  and  as  such  cooperation  does  not  objectively  require  a  sector  specific 
BER. 

2.3. 

Applicability of Article 81 

84. 

As  shown  in  Chapter  I,  Section  5.2,  in  the  event  that  the  BER  is  not  renewed,  Article 
81(3) together with the Guidelines on the application of Article 81(3) will be applicable 
to the insurance sector, as is currently the case for the vast majority of sectors which do 
not benefit from a BER. The BER itself is "an application of Article 81(3) of the Treaty 
to  certain  categories  of  agreements,  decisions  and  concerted  practices  in  the  insurance 
sector”. Given this fact and the evidence gathered in this review, it is unlikely that the 

year where the policy is automatically renewed unless notice is given upon the expiry of a given period; (h) 
require the policyholder to agree to the reinstatement of a policy which has been suspended on account of the 
disappearance  of  the  insured  risk,  if  he  is  once  again  exposed  to  a  risk  of  the  same  nature;  (i)  require  the 
policyholder  to  obtain  cover  from  the  same  insurer  for  different  risks;  (j)  require  the  policyholder,  in  the 
event of disposal of the object of insurance, to make the acquirer take over the insurance policy; (k) exclude 
or  limit  the  cover  of  a  risk  if  the  policyholder  uses  security  devices,  or  installing  or  maintenance 
undertakings, which are not approved in accordance with the relevant specifications agreed by an association 
or associations of insurers in one or several other Member States or at European level. 

EN 

24 

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Commission or NCAs would consider that an SPC currently covered by the BER would 
fail to comply with Article 81(3) of the EC Treaty. 

85. 

Indeed,  most  of  the  criteria  used  in  the  BER  would  remain  valuable  for  interpretation 
purposes as regards the analysis under Article 81(3). Further guidance on SPCs may also 
be envisaged by the Commission in the event of non-renewal. 

2.3.1.  Applicability of Article 81(1) 

86. 

87. 

88. 

89. 

39 

Standard  policy  conditions  would,  in  most  cases,  be  unlikely  to  fall  within  the 
prohibition of Article 81(1). 

However, there are some categories of agreement on SPCs which will usually fall foul of 
the prohibition in Article 81(1) in particular the categories of agreement listed in Article 
6 (the black list) of the BER. In the past, the Commission has received notifications for 
individual exemptions in the past, in relation to clauses which were on the black list of 
the BER. However, its view has been that the arguments in favour of exemption had to 
be  particularly  strong  and  that  it  had  to  be  cautious  not  to  open  the  door  for  any 
"softenings"  of  the  black-list  clauses.39  In  addition  some  respondents  recalled  that 
cooperation in respect of standard policy conditions should not be tied to cooperation in 
the establishment of risk premiums and pure premiums. 

SPCs allow the comparison of insurance policies offered by different insurers allowing 
customers  to  verify  the  content  of  guarantees  more  easily  and  facilitating  switching 
between insurers and insurance products. Similarly, the main effect of the proposed EU 
Directive  on  Consumer  Credit  Loans  will  be  to  provide  standard,  comparable 
information to customers across the EU when taking out a credit loan. 

However, whilst there is clearly a need for comparability between insurance products for 
consumers, this cannot be at the expense of homogeneous standard conditions which can 
hinder  consumers'  ability  to  find  products  suited  to  their  needs,  a  risk  highlighted  by 
some  respondents.  Indeed,  too  much  standardisation  can  harm  consumers  by  limiting 
product choice, as pointed out by one consumer association40 in its reply in relation to 
motor vehicle insurance. Comments that standard policy conditions are capable of being 
a  hindrance  to  competition  as  they  may  influence  the  use  by  insurers  of  restrictive  or 
exclusionary  terms  were  also  made  in  response  to  the  present  Commission's 
Consultation. 

The  notification  of  the  German  Association  of  Insurers'  (GDV’s)  “Security  Device  Guidelines  for  Banks, 
Building  Societies  and  other  financial  institutions)  (2000):  These  Guidelines  contained  inter  alia  a  general 
description  of  the  risks  and  protection  requirements,  installations  for  reports  of  robbery  and  burglary, 
installations  for  optical  monitoring  of  the  rooms,  special  security  devices  as  well  as  money  and  value 
transports. Furthermore, they contained a part dealing with recommended insurance premiums for cover of 
different  types  of  value  containers  (such  as  safes  etc)  which  were  dependent  on  the  robustness  of  the 
containers. The Commission considered that the recommended level of coverage sums for subscription was a 
black clause because of an indication of the amount of the cover. Even though the policy-holder could have 
benefited  from  the  comparability  of  the  conditions  of  the  insurance  companies  and  from  the  prevention  of 
burglary  and  robbery  in  the  form  of  lower  insurance  premiums  and  earlier  compensation,  as  GDV  argued, 
they were inevitably confronted with a range of similar products and similar prices. A similar assessment was 
made in relation to the notification of the GDV’s “Security Device Guidelines for Banks, Building Societies 
and other financial institutions) (2000). 

40 

Test Achats, Belgium. 

EN 

25 

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90. 

Clearly, concerns may arise with SPCs and responses during the Review were divided on 
whether  the  overall  effect  is  restrictive  of  competition.  A  blanket  BER  such  as  is 
currently  in  place  would  therefore  not  appear  appropriate  since  on  the  basis  of  the 
Commission's current evidence, an analysis of an agreement on SPCs would need to be 
undertaken in the context of the product and geographic market for which it is intended. 

2.3.2.  Applicability of Article 81(3) 

91. 

92. 

93. 

94. 

95. 

In the event that an agreement on SPCs (outside of the black list in Article 6) were 
caught by Article 81(1), it may still fall within the efficiency exemption provided by 
Article 81(3). For example in one Commission Decision, the complainant argued that 
the  GDV  member  companies  applied  uniform  conditions  in  occupational  disability 
insurance  and  that  this  amounted  to  a  “cartel”  between  the  GDV  members.  The 
Commission rejected the complaint on the basis that it met the exemption conditions 
for Article 81(3) as set out in the BER. Furthermore there was no evidence that GDV 
or  its  members  agreed,  to  oblige  other  undertakings  to  apply  the  standard  policy 
conditions. 41 

Replies to the Consultation and targeted questionnaires supported the initial view of the 
Commission  and  many  NCAs  that  common  standard  policy  conditions  which  are  not 
black listed in the BER have advantages for consumers and competition. The variation in 
the frequency of use of standard policy conditions across EU Member States may depend 
on  the  national  insurance  regulations  (e.g.:  the  high  level  of  use  of  standard  policy 
conditions in some Member States may be explained by the high number of compulsory 
insurance products). 

An argument made by some respondents in favour of SPCs is that new market entrants 
require  sample  insurance  terms,  in  particular  where  a  foreign  language  or  a  different 
jurisdiction is involved as this reduces the investment expenditure connected with entry 
into  a  new  market.  Furthermore,  it  was  argued  that  without  SPCs  established  by 
insurance associations a reverse effect could occur whereby big market players could set 
up their own conditions and smaller companies lacking the means and resources would 
have to follow. 

Respondents also argued that SPCs can facilitate the insurance of new risks because once 
non-binding SPCs have been agreed for new risks, even small insurers can include new 
products in their product range from the very start of the coverage such new risks. 

The  question  arises  as  to  whether  customers  should  be  involved  in  a  more  transparent 
way in the process of drafting standard policy conditions. On this issue the Commission's 
investigation into the behaviour of providers of aviation war and terrorism insurance in 
the wake of the terrorist attacks of 11 September 2001 concluded in March 2005 with a 
settlement involving several reforms. These foresaw inter alia greater transparency and 
customer involvement in key industry committees including one that establishes standard 
wordings for aviation insurance policies and clauses. A new Aviation Insurance Clauses 
Group  would  grant  customers  –  previously  not  involved  in  the  preparation  of  standard 
clauses - the opportunity to participate and make proposals.42

41 

42 

Commission Decision to reject a complaint against DBV Winterthur insurance company and the GDV (the 
German Insurance Industry Association) (2004). 
The Aviation case (2005). 

EN 

26 

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96. 

97. 

2.4 

98. 

99. 

The BER clearly requires SPCs to be non-binding. In addition it may be the case that a 
requirement  to  notify  derogations  to  establishing  associations  would  also  be  exempt 
under  Article  81(3).  A  case  in  point  is  the  Commission's  Decision  in  Concordato 
Incendio  to  exempt  not  only  standard  policy  conditions,  which  members  were  free  to 
derogate from, but also a requirement that members notify the Concordato of any such 
derogation  that  might  affect  the  statistics  used  to  calculate  pure  premiums.  This 
requirement was considered necessary to guarantee the reliability of the statistics.43 

It  has  been  argued  that  SPCs  can  help  to  reduce  the  use  of  restrictive  or  exclusionary 
terms.  However,  there  are  indications  from  the  evidence  before  the  Commission  that 
some imbalanced clauses are still being used by insurers and that consumer associations, 
as they would wish, are not fully involved in the drafting of such clauses (which would 
obviously  be  the  ideal  scenario  in  terms  of  ensuring  balance  between  insurers  and 
consumers). 

Effects on SPC cooperation in event of non-renewal 

It has been argued by some respondents 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 such cooperation 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 which would pass on costs to policyholders. 

However, even under the current regime, a careful legal assessment of standard clauses' 
compliance with the BER must be undertaken, in particular to ensure that the conditions 
are fulfilled and that no prohibited black clauses are present. In addition, some national 
regulations  have  already  fixed  these  standard  policy  conditions,  which  results  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 certainty44 and 
made clear that if the market fails to develop its own, it will be forced to intervene with 
new rules and requirements.  

100. 

Therefore,  there  does  not  appear  to  be  a  significant  and  real  risk  of  less  or  non-
cooperation  in  the  event  of  non-renewal  of  the  BER,  particularly  where  the  national 
regulator  imposes  a  high  degree  of  contract  certainty.  Furthermore,  many  national 
associations have 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. This is 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). 

3. 

CONCLUSIONS AND PROPOSALS 

101. 

The  Commission  agrees  that  in  many  cases  SPCs  can  give  rise  to  positive  effects  for 
competition and consumers. 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). 

43 

44 

Commission Decision 90/25/EEC of 20 December 1989 – Concordato Incendio, OJL 015, 19/01/1990, p.25-
29. 
This being with a view to achieving greater certainly for buyers about what they have bought and for insurers 
about the risks they are covering, whilst also reducing risks for brokers.  

EN 

27 

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102. 

103. 

104. 

However the question for this review is whether this category of agreements are special 
or  peculiar  to  the  insurance  sector  such  that  they  should  be  protected  by  a  legal 
instrument. The answer to that question appears to be in the negative on the basis of the 
fact  that  similar  SPCs  are  agreed  in  other  sectors  in  particular  in  the  banking  sector, 
without the need for a BER. 

Furthermore, there does not appear to be a significant risk of non-cooperation on SPCs in 
the event of non-renewal. 

On the basis of the above analysis the Commission therefore proposes, at this stage, not 
to renew the BER for agreements on SPCs. 

EN 

28 

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IV.  COMMON COVERAGE OF CERTAIN TYPES OF RISKS 
(POOLS) 

105. 

106. 

107. 

Co(re)insurance  pools  (or  groups)  are  frequently  used  for  the  coverage  of  large  or 
exceptional risks, such as aviation, nuclear and environmental risks, for which individual 
insurance companies are reluctant or unable to insure the entire risk alone. 

In these pools, in general, each member insurance company agrees in advance to take 
a fixed percentage of all risks insured and the pool acts as one single interlocutor for 
the insured party. 

The  BER is  based  on the premise that  any such pools might involve restrictions of 
competition  and  that  it  is  therefore  appropriate  to  lay  down  the  circumstances 
(market  share  thresholds45  and  other  conditions46)  under  which  such  groups  can 
benefit from the Article 81(3) exemption. 

1. 

SCOPE OF THE BER  

1.1. 

Pools newly created which cover new risks 

108. 

109. 

The BER exempts the setting up and operation of insurance pools (groups of insurance 
undertakings or groups of insurance undertakings and reinsurance undertakings) for the 
common coverage of new risks for three years from the date of first establishment of the 
group, regardless of the market share of the group. 

Given  that  it  is  not  possible  to  know  either  what  subscription  capacity  is  necessary  to 
cover the risk nor whether two or more such groups could co-exist to provide this type of 
insurance, the BER provides that new risks are exempt for a limited period of 3 years. 

1.2. 

Pools covering risks which are not new 

110. 

The BER exempts co-insurance or reinsurance pools that have been in existence for three 
years (and have covered new risks for a period of three years) or that were not created in 
order to cover new risks, and provide common coverage of a specific category of risks 

45 

46 

Article 7(2) (a) and (b) of the BER: more than 20% of the relevant market in the case of co-insurance groups 
and, respectively, more than 25% of the relevant market in the case of co-reinsurance groups. 
Article 8 of the BER provides: "The exemption provided for in Article 1(e) shall apply on condition that:  
a) each participating undertaking has the right to withdraw from the group, subject to a period of notice of not 
more than one year, without incurring any sanctions.  
b) the rules of the group do not oblige any member of the group to insure or re-insure through the group, in 
whole or in part, any risk of the type covered by the group; 
c) the rules of the group do not restrict the activity of the group or its members to the insurance or reinsurance 
of risks located in any particular geographical part of the European Union; 
d) the agreement does not limit output or sales; 
e) the agreement does not allocate markets or customers; 
f) the  members of a co-reinsurance group do  not agree  on the commercial premiums  which they charge in 
direct insurance; and 

g) no member of the group, or undertaking which exercises a determining influence on the commercial policy of the 
group,  is  also  a  member  of,  or  exercises  a  determining  influence  on  the  commercial  policy  of,  a  different 
group active on the same relevant market. 

EN 

29 

   EN 

                                                   
 
 
 
 
 
 
(e.g. nuclear, environmental, terrorism risks), subject to certain conditions, in particular 
market share thresholds. 

111. 

However,  the  BER  will  not  cover  any  exemption  for  such  groups/pools  if  the  group 
benefits  from  a  significant  level  of  market  power  (25%  for  co(re)insurance  pools  and 
20%  for  co-insurance  pools),  since  the  restriction  would  otherwise  outweigh  any 
advantages. 

1.3.  What the BER does not cover- Co(re) insurance on subscription markets 

112. 

113. 

Co(re)insurance can be offered both through institutionalised pools (which are covered 
by the BER under certain conditions) or through arrangements on subscription markets 
(ad-hoc  co(re)insurance)  in  which  each  insurance  company  agrees  independently  to 
insure a certain percentage of a risk. In this case a lead insurer covering the largest part 
of  the  risk  is  chosen  normally  by  the  broker  and  his  client,  agreements  on  terms  and 
conditions including premium are concluded between the lead-insurer and the client and 
then other small or medium sized insurers are invited to cover the remaining part of the 
risk. 

insurance  BER  (in  2002), 

This latter category of cooperation is outside the BER. Following the consultation on the 
include  ad-hoc 
previous 
co(re)insurance in the current BER as at the time there was no information or evidence to 
indicate any possible restriction of competition. However, during the Business Insurance 
Sector  Inquiry  the  Commission  found  that  co(re)insurance  on  the  subscription  market 
(not  covered  by  the  BER)  usually  involves  premium  alignment,  which  may  restrict 
competition and may not be justified under Article 81(3). 

the  Commission  did  not 

2. 

MAIN FINDINGS OF THE REVIEW AND ANALYSIS 

2.1. 

114. 

115. 

Question One: is the insurance sector special or different to other sectors such that 
it gives rise to an enhanced need for cooperation? 

Several replies to the Consultation Paper emphasised that the insurance sector is special 
as  regards  co(re)insurance  and  that  its  specificity  gives  rise  to  an  enhanced  need  for 
cooperation in the sense that pools permit insurers to mitigate risk and fulfil the need to 
pool  financial  capacity  which  companies  might  not  be  able  to  find  in  isolation  for 
complex  risks  (nuclear  risks,  terrorism)  or  less  well  documented  risks  (environment, 
climate change). 

The Commission agrees that risk sharing for certain types of risks (usually very large or 
new risks) is crucial in order to ensure that all such risks can be covered. Furthermore, 
this is an requirement that appears to be specific to the insurance sector. However if it is 
accepted that the insurance sector gives rise to an enhanced need for such cooperation, 
the question arises as to whether a legal instrument such as the BER or sector specific 
guidance is required in order to facilitate it. 

2.2. 

Question Two: if the answer to Question one is positive, does this enhanced need for 
cooperation require a legal instrument in order to protect or facilitate it? 

2.2.1. 

The need for a consistent approach regarding market share rules 

116. 

Article 11-1 of the first Insurance BER provided that market share should be calculated 
by taking into account the members' "global turnover in the relevant insurance market, 

EN 

30 

   EN 

117. 

118. 

119. 

irrespective  of  whether  they  do  their  business  through  the  pools  or  independently".  As 
regards  the  coverage  of  catastrophic  or  aggravated  risks,  article  11-2  specified  that  the 
market share to be taken into account related to "the insurance products brought into the 
group", i.e. the members' turnover made through the pool. 

The current BER follows this last method and provides in Article 7(2) and 7(3)(a) that 
for  the  purposes  of  applying  the  market  share  thresholds  provided  by  the  BER,  the 
market shares shall be calculated taking into account the insurance products underwritten 
within the pool by the participating undertakings or on their behalf, on the basis of the 
gross premium income of the preceding calendar year47. 

This new methodology for calculating market shares made the market share calculation 
more generous for co(re)insurance pools, as the turnovers achieved by the participating 
companies outside the co(re)insurance group in the relevant insurance market are not to 
be considered. 

It  is  important  to  note  that  this  method  of  calculating  market  share  is  not  in  line  with 
other  general  and  sector-specific  competition  rules  on  the  assessment  of  horizontal 
cooperation.  The  Commission's  de  minimis  Notice48  refers  to  the  "aggregate  market 
share  held  by  the  parties  to  the  agreement"49  and  not  to  the  market  share  of  the 
cooperation  in  question.  In  addition,  no  other  BER,  be  it  general50  or  sector-specific51, 
bases  its  calculation  of  market  share  on  the  cooperation  only  instead  of  the  aggregate 
share  of  all  companies  involved52.  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.  

120.  Whilst there appears to be no reason to maintain such preferential treatment in relation to 
other sectors, the inconsistency related to market shares calculations in the current BER 
is not in itself a reason not to renew. In the event that the Commission decided to renew 
this exemption, the Commission would consider that the section on market shares should 
be  significantly  amended  with  a  view  to  bringing  it  into  line  with  the  rules  on  other 
forms of horizontal cooperation. 

2.2.2.  Pools can benefit from the BER provided they meet certain strict conditions 

121. 

The  vast  majority  of  respondents  to  the  Consultation  Paper  and  questionnaires 
emphasised that in the absence of the BER there is a risk that they would not continue to 
cooperate  within  pools.  However,  this  assertion  presumes  that  the  pools  in  question 
currently benefit from the BER, since otherwise non-renewal of the BER would result in 
no change. 

47 

48 

49 
50 

51 

52 

If  gross  premium  income  data  are  not  available,  estimates  based  on  other  reliable  market  information, 
including insurance  cover  provided or insured risk  value,  may be used to establish the  market share of the 
undertaking concerned. 
Commission Notice on agreements of minor importance which do not appreciably restrict competition under 
Article 81(1) of the Treaty, OJ C 368, 22.12.2001, p.13 and Guidelines on the effect on trade concept , OJ C 
101, 27.4.2004, p.81. 
The Commission's Notice on Agreements of Minor Importance referred to above. 
Article  4  of  the  Specialisation  BER  considers  that  market  share  "of  the  participating  undertakings",  and 
Article 3 of the Technology Transfer BER considers the "combined market share of the parties".  
Article  5(2)  of  the  Draft  Consortia  BER  provides  for  the  aggregation  of  the  market  shares  of  carriers  that 
offer services both individually and within a consortium on the same relevant market.  
As also pointed out by a NCA in reply to the consultation.  

EN 

31 

   EN 

                                                   
122. 

Yet, on the basis of the evidence the Commission has found, it appears that some pools 
do not actually benefit from the BER, for a number of reasons, and therefore renewal or 
non-renewal of the BER should not affect their legal assessment. First, certain pools do 
not need a BER to provide them with a safe harbour because they do not give rise to a 
restriction of competition in the first place. Secondly, there are pools which do restrict 
competition  and  wrongly  consider  themselves  covered  by  the  BER.  For  example  one 
pool  argued  that  although  it  had  been  in  existence  for  30  years,  it  still  considered  it 
covered a "new risk" (within the definition of the BER). For this category of pools the 
renewal or non renewal of the BER should not be of primary importance, as it is unlikely 
that  they  benefit  from  the  BER.  However,  it  may  still  be  possible  to  benefit  from  an 
exemption under Article 81(3). 

123. 

However, there is one category of pools which may experience a change in terms of their 
legal  assessment  in  case  of  non-renewal,  namely  the  pools  which  are  restrictive  of 
competition, but currently benefit from the BER as they fulfil all its conditions. 

2.2.2.1.  Some pools are outside the scope of the BER because they are necessary and as such do 

not give rise to a restriction of competition 

124. 

125. 

53 

54 

55 

Certain catastrophic risks may be such that no individual insurer is capable of insuring 
them alone. In the P&I Clubs case53 it was considered that members of the pool were not 
actual or potential competitors, given the fact that they were unable to insure alone the 
risks covered by the pool. The so-called P&I Clubs doctrine currently applies in relation 
to pools on markets where no coverage outside the pool is possible. In accordance with 
this doctrine, pools, no matter how high their market share, may be considered not to be 
anti-competitive as long as pooling is necessary to allow their members to provide a type 
of insurance that they could not provide alone. 

The same approach was taken in the nuclear insurance pool cases (2001)54. Moreover, in 
the Austrian and the German terror pool case (2002)55, the Commission considered that 
the pools did not fall within the scope of Article 81(1) because it was not in a position to 
clearly demonstrate that the pool is not necessary or could be replaced by more than one 
pool. It has therefore been the Commission's practice to grant the "benefit of a doubt", if 
it cannot prove that more than one pool can exist. 

Commission  Decision  1999/329/EC  of  12  April  1999  –  P&  I  Clubs,  Pooling  Agreement,  OJL  125  of 
19/05/1999,  p.12-31:  A  claim-sharing  agreement  between  insurance  mutuals  covering  89%  of  the  world 
market for  maritime third party and contractual liability insurance (protection & indemnity  - P&I) was not 
considered  to  restrict  Article  81(1)  because  the  members  of  the  P&I  Clubs  were  not  actual  or  potential 
competitors,  given  the  fact  that  they  were  unable  to  insure  alone  the  risks  covered  by  the  pool  (very  large 
maritime liability risks).  
The  nuclear  insurance  pool  cases  (2001):  In  January  2001  the  Commission  closed  its  investigations  into 
three  nuclear  insurance  pool  cases  (a  Swedish  co-insurance  and  co-reinsurance  nuclear  pool,  an  Italian 
reinsurance nuclear pool and a Spanish pool providing co-insurance to nuclear installations in Spain and co-
reinsurance to nuclear risks outside Spain). The Commission concluded that without the pooling agreements 
there would be no supply of nuclear liability insurance with adequate coverage for the risks involved. 
The Austrian pool and the German pool (terror pools) (2002): The Commission received two applications for 
negative  clearance:  one  concerned  an  agreement  for  the  creation  and  operation  of  a  co-insurance  group 
("Austrian  Terrorpool')  with  the  aim  of  covering  the  risk  of  terrorism  within  insured  threats  for  private 
customers  and  small  business  located  in  Austria.  The  second  concerned  the  German  Pool  Extremus, 
providing  terror  risk  insurance  for  risks  located  in  Germany.  The  Commission  considered  that  due  to  the 
highly atypical and more political character of the terrorism risk, the pools would fall within the category of 
pools for which it is the Commission's practice to grant the "benefit of a doubt", if it is not in a position to 
clearly demonstrate that the pool is not necessary or could be replaced by more than one pool. Therefore it 
was concluded that the pools did not fall within the scope of Art. 81(1). 

EN 

32 

   EN 

                                                   
126. 

127. 

128. 

Replies  to  questionnaires  from  nuclear  pools  show  that  some  are  aware  of  the 
Commission's  analysis  as  they  do  not  consider  that  they  benefit  from  the  BER  for  the 
simple reason that "the pool is not violating Article 81(1) of the Treaty as its members 
would not be able to provide the necessary capacity for the reinsurance of nuclear risks 
and  are  only  enabled  to  grant  reinsurance  cover  by  means  of  their  cooperation". 
Conversely, other pools active on national nuclear liability markets, which appear to fall 
into the same category (outside the BER because they would not restrict competition in 
the first place), might wrongly consider themselves within the scope of the BER.. These 
pools say they are concerned that in the absence of the BER "this form of cooperation 
would  become  more  difficult  or  even  impossible  due  to  legal  uncertainty.  Nuclear 
business  is  really  not  attractive  and  compared  to  other  types  of  insurance  is  not 
generating enough premium to justify the legal uncertainty". 

It  therefore  appears  that  not  renewing  the  BER  should  not  have  any  effect  on  pools 
which are outside its scope because they do not give rise to a restriction of competition 
and are not prohibited by Article 81(1) of the Treaty. 

On the question of whether it is possible for any member of a pool to cover individually 
the same risks or whether they currently cover the same risk outside the pools, some of 
the pools reply in the affirmative. This leads to the conclusion that such pools fall under 
Article 81(1), even if they cover such risks in a "very limited way as the values at risk 
are  substantial  and  monitoring  of  exposures  is  complex".  Such  pools  could  still  be 
exempt  if  they  fulfil  the  market  share  thresholds  and  other  conditions  provided  by  the 
BER, as shown in the following section. 

2.2.2.2.  Some  pools  are  outside  the  scope  of  the  BER  because  they  do  not  comply  with  its 

conditions 

129. 

130. 

Pools  which  can  be  replaced  by  two  or  more  insurance  entities  can  give  rise  to 
restrictions of competition, such as "the standardisation of policy conditions and even of 
amounts  of  cover  and  premiums"56.  These  pools  are  only  covered  by  the  BER  if  they 
have  market  shares  that  fall  within  the  thresholds  set  out  in  the  BER57  (20%  for  co-
insurance  groups  and  25%  for  co-reinsurance  groups)  and  comply  with  the  other 
conditions of the BER. The replies to the consultation indicate that there are a number of 
pools operating on the market, which are restrictive of competition, but do not comply 
with either the market share thresholds or other exemption conditions set out in the BER. 

A pool might have as its object a restriction of competition. Otherwise, its effects in the 
market concerned are analysed to determine whether it is likely to have an appreciable 
adverse  impact  on  the  parameters  of  competition  on  the  market  such  as  prices,  costs, 
level of coverage, service differentiation, service quality and innovation. Agreements can 
have this effect by appreciably reducing rivalry between the parties to the agreement or 
between them and third parties58

. 

131. 

A  pool's  ability  to  cause  appreciable  negative  market  effects  depends  on  its  economic 
context,  taking  into  account  market  shares  together  with  other  structural  factors  in  the 
relevant market as well as the nature of the agreement. If the pool and its members have 

56 
57 

58 

Recital 18 of the BER. 
Recital 21 of the BER last sentence: "However, any exemption for such groups is not justified if the group in 
question  benefits  from  a  significant  level  of  market  power,  since  in  those  circumstances  the  restriction  of 
competition deriving from the existence of the pool would normally outweigh any possible advantages".  
Guidelines on the application of Article 81(3), OJ C 101, 27.4.2004, p.97. 

EN 

33 

   EN 

                                                   
132. 

133. 

134. 

a  low  market  share,  the  pool  is  unlikely  to  produce  restrictive  effects.  Market 
concentration,  the  position  and  number  of  competitors,  market  entry  barriers  and  the 
likelihood  of  entry  should  be  taken  into  account  as  additional  factors  in  assessing  the 
impact of a given pool on the relevant market. 

As  regards  the  nature  of  the  agreement,  consideration  should  be  given  to  clauses 
affecting  the  pool  or  its  members  competitive  behaviour  in  the  market  such  as  those 
stipulated by Article 8 of the BER (e.g. the so-called the "obligation d'apport" clause: the 
obligation for a member to insure or re-insure through the group, in whole or in part, any 
risk of the type covered by the group59

). 

There  have  been  cases  in  several  Member  States  where  pools  were  set  up,  despite  the 
fact  that  the  risks  in  question  could  have  been  covered  by  several  individual  insurers 
rather than a pool and the market share thresholds were exceeded. 

In  2007,  the  German  NCA  prohibited  a  pool  covering  pecuniary  loss  liability  risks for 
auditors and chartered accountants.60 The Bundeskartellamt considered that the relevant 
market  was  the  market  for  pecuniary  loss  liability  risks  for  auditors  and  chartered 
accountants. On that basis, the pool largely exceeded the market share thresholds fixed 
by  the  BER.  Given  that  insurance  cover  was  only  provided  at  standard  premiums  and 
terms and that there was no competition between the insurance companies for insurance 
premiums  and  conditions  or  for  service  quality  in  claims  processing,  four  insurance 
companies were prohibited from continuing to jointly insure the pecuniary loss liability 
risks  of  auditors  and  chartered  accountants  from  2009  via  the  insurers'  pool.61  Another 
similar  case  is  currently  being  investigated  in  the  Netherlands,  where  the  Dutch 
Competition  Authority  considers  that  a  pool  offering  primary  professional  liability 
insurance to notaries is restrictive of competition and not exemptible. Firstly, members 
of  the  pool  do  not  compete  with  each  other  regarding  the  premium  or  terms,  although 
other  insurers  already  cover  this  risk  independently.  This  means  that  two  or  more 
competitors could co-exist on the market and that Article 81(1) is applicable in this case. 
Secondly,  due  to  high  market  shares  (60%)  which  are  beyond  the  market  share 
thresholds  provided  by  the  BER,  the  pool  in  question  does  not  benefit  from  the 
exemption afforded by the BER. 

135. 

Some  replies  to  the  Commission's  targeted  Questionnaires  indicate  that  some  pools  do 
not benefit from the exemption under the BER because they do not fulfil the additional 
condition  set  out  in  Article  8(g)  of  the  BER.  In  accordance  with  Article  8(g),  if  an 
insurer or reinsurer is simultaneously a member of two pools active on the same relevant 
market,  then  neither  pool  is  covered  by  the  BER.  Some  replies  indicate  that  this  is  an 
issue which arises in practice. 

59 

60 

61 

A  nuclear  insurance  pool  case  (the  German  pool  DKVG)  was  closed  in  2002,  following  the  deletion  of  a 
clause obliging members to insure nuclear risks only through the pool, whatever the amount of cover. 
Decision no B4-31/05 of 10 August 2007, available at: 
http://www.bundeskartellamt.de/wDeutsch/download/pdf/Kartell/Kartell07/B4-31-05.pdf.  
The  decision  of  the  Bunderskartellamt  was  annulled  by  the  Düsseldorf  Court  of  Appeal  on  the  grounds  of 
market definition (Judgement VI-Kart 11/07 (V) of 17 September 2008). The Appeal Court considered that 
the market should be defined more widely. On that basis, the pool under investigation would fall under the 
market  share  thresholds  defined  by  the  BER.  The  judgment  is  not  yet  final,  the  Bundeskartellamt  is 
considering whether to appeal to the Supreme Court.  

EN 

34 

   EN 

                                                   
2.2.2.3.  Some pools are within the scope of the BER 

136. 

Although the first two categories of pools discussed above are outside the scope of the 
BER and hence could not theoretically be affected by the non-renewal of the BER, pools 
which do comply with market shares thresholds and other conditions established by the 
BER would be affected by its non-renewal. 

2.2.3. 

The simple existence of the BER does not provide for automatic cover for pools 

137. 

It  appears  from  many  replies  during  the  Review  that  pools  use  the  BER  as  a  general 
"blanket" exemption and that they consider the simple existence of the BER enough to 
provide them with legal certainty. This is a misconception as the BER offers exemption 
to  pools  only  in  certain  conditions,  which  must  be  assessed  case  by  case.  Compliance 
with the BER is being assessed incorrectly in many instances according to the evidence 
the Commission has found. 

138. 

It  is  essential  that  all  pools  undertake  a  proper  legal  assessment  in  order  to  determine 
whether they are restrictive of competition or otherwise and/or whether they are covered 
by the BER. 

2.2.3.1.  The relevant market 

139. 

In order to assess the effects on competition of an agreement for the purposes of Article 
81, it is first necessary to carefully define the relevant product and geographic market(s). 
Market  definition  is  also  a  prerequisite  in  order  to  assess  the  applicability  of  the 
Insurance BER, especially for the application of the market share thresholds for pools. 
However,  the  subsequent  versions  of  the  BER  have  never  offered  any  guidance  on 
market definition in the insurance sector. As a consequence, despite the adoption of the 
first  Insurance  BER  in  1992,  many  pools  felt  the  need  to  maintain  their  individual 
notifications to the European Commission, because of uncertainty as to market definition 
and market shares62. 

2.2.3.1.1.Available guidance 

140. 

141. 

The main purpose or market definition is to identify in a systematic way the competitive 
constraints faced by an undertaking. The methodology adopted by the Commission for 
its definition of the relevant market in its Notice on the definition of the relevant market 
for the purposes of Community competition law63 is normally based on an analysis of the 
substitutability of demand and supply. The relevant product market comprises all those 
products  and/or  services  which  are  regarded  as  interchangeable  or  substitutable  by  the 
consumer, by reason of the products' characteristics, their prices and their intended use. 

Given that substitutability of demand is theoretically zero, as the insurance of each risk 
category  and  even  of  specific  risks  within  each  category  is  not  substitutable  for  the 
insured  person  for  whom  each  insurance  policy  is  unique,  supply  substitutability  is 
particularly important in insurance market definition. An analysis of the substitutability 
of  supply  reveals  that  different  types  of  risk  can  often  be  included  in  a  single  product 
market,  since  the  conditions  needed  to  insure  them  are  similar.  The  conditions  in 
question,  which  may  allow  the  insurance  of  different  risks  to  be  included  in  a  single 
product  market,  are,  inter  alia,  the  laws  and  regulations  applicable,  the  distribution 

62 
63 

For instance, three comfort letters were issued to nuclear pools in 2001. 
OJ C372, 9.12.1997, p.5. 

EN 

35 

   EN 

                                                   
142. 

143. 

144. 

channels, the necessary expert know-how and the characteristics of the risk (frequency 
and scale of claims). 

The relevant geographic market comprises the area in which the undertakings concerned 
are involved in the supply and demand of products or services, in which the conditions 
of  competition  are  sufficiently  homogeneous  and  which  can  be  distinguished  from 
neighbouring  areas  because  the  conditions  of  competition  are  appreciably  different  in 
those areas64. In the insurance sector, the geographic market must be defined essentially 
by the actual cross-frontier provision of services: if customers unable to find appropriate 
insurance  in  their  own  countries  obtain  cover  in  another  country,  the  market  is 
international;  if  not,  the  market  is  national.  It  is  also  possible  that  an  undertaking 
operates on a market larger than its domestic market but smaller than the world market 
(e.g.  the  European  Union)  or  operates  simultaneously  on  several  geographic  markets 
having different competitive conditions. 

In addition, relevant Commission's decisions and comfort letters can be used in order for 
pools  to  determine  the  relevant  market  in  which  they  operate.  For  example,  the 
Commission distinguished: a nuclear liability insurance market in the nuclear insurance 
cases of 200165 and a third-party liability insurance market for maritime shipping in the 
P&I Clubs case66. Also, in aviation insurance, the Commission considered that insurance 
for  commercial  and  non-commercial  aviation  (private  and  pleasure  aviation)  constitute 
distinct products markets67. 

In  some  cases,  the  Commission's  Services  have  defined  the  relevant  product  or 
geographic market in a broad way (e.g. an Austrian pool for international transport risks 
which  appeared  to  obtain  around  one-third  of  its  turnover  abroad  was  considered  to 
operate  on  a  geographic  market  which  was  wider  than  Austria;  the  market  share  of 
another  Austrian  pool  dealing  with  the  insurance  of  Volkswagen-type  cars  was 
determined with reference to the wider product market for car insurance; and an Italian 
pool providing entrepreneurs or contractors with insurance against late delivery of their 
work was considered to operate in competition with financial institutions providing such 
companies a bank guarantee against the same event)68. 

2.2.3.1.2.Uncertainty in practice despite the BER 

145. 

In  the  consultation  process, we  received  indications  from  several  pools  and  NCAs  that 
the geographic product market on which pools operate is often national (in the sense that 
the risks being covered are situated in the Member State where the pool is located) and 
have  market  shares  beyond  the  ones  permitted  by  the  BER,  with  the  consequence  that 
they would not be covered by the BER. Conversely, pools which cover risks situated in 

64 

65 
66 
67 

68 

Notice  of  the  Commission  on  the  Definition  of  the  Relevant  Market  for  the  Purposes  of  Community 
Competition Law, referred to above, paragraph 8. 
See footnote 54. 
See footnote 55. 
The Aviation Pool cases (1998): In 1998 the Commission closed an investigation into several notifications of 
aviation  pool  cases.  For  the  insurance  of  large  aviation  risks,  the  market  was  international  and  the  market 
share  of  each  pool  was  sufficiently  small  as  to  benefit  from  negative  clearance.  For  small  aviation  risks 
(private  and  pleasure  aviation),  for  which  markets  were  national  the  pools  in  question  did  not  seem  to  be 
necessary in order to allow their members to be present on those markets. The Commission found there to be 
insufficient  Community  interest  to  bring  proceedings  but  warned  the  pools  of  the  possibility  of  action  by 
national competition authorities. 
Report from the Commission to the Council and the European Parliament on the operation of Commission 
Regulation n° 3932/92 concerning the application of Article 81 (ex-Article 85), paragraph 3, of the Treaty to 
certain categories of agreements, decisions and concerted practices in the field of insurance, p 16. 

EN 

36 

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146. 

147. 

148. 

149. 

several countries worldwide consider that they fall under the BER "because the market is 
global". 

In  the  case  of  the  insurers'  pool  in  Germany  for  auditors  and  accountants,  the  German 
competition  authority's  decision  defining  the  relevant  market  as  the  one  for  pecuniary 
loss  liability  risks  for  auditors  and  chartered  accountants  was  annulled  by  the  German 
Appeal Court in 2008. The Court held that this market definition was too narrow and that 
liability of risks of other professions (such as lawyers) should be included. On that basis, 
the pool would fall under the 20 per cent market share threshold provided by the BER 
and would be excluded. 

In  the  case  of  the  insurers'  pool  offering  insurance  to  notaries  in  the  Netherlands,  the 
Dutch competition authority defined the relevant market as the market for professional 
liability  insurance  for  notaries.  The  definition  is  based  on  the  fact  that  there  is  no 
substitute for the demand and that there is no substitute offer either. An important barrier 
to entry was considered to be the specific knowledge necessary to assess the risk. On the 
basis of this market definition, the notary pool had a market share of around 60% in the 
period under consideration (from January 2008 onwards) and therefore is not covered by 
the  BER.  Furthermore,  the  Dutch  competition  authority  considers  that  the  pools 
agreement would not be exemptible even if a broader definition was accepted, that is, the 
market for all legal professions, where the pool has a market share of just over 50%. 

In  comparison  with  these  narrow  definitions,  some  pools'  definition  of  their  relevant 
market may be too large. For instance, a coinsurance group for professional liability of 
insurance intermediaries defines the relevant market of the pool as the national liability 
market  (excluding  motor  third  party  liability).  On  this  basis,  their  market  share  would 
only be of 2%, which would allow them to benefit from the BER. 

The reply of one nuclear pool illustrates not only the importance of the definition of the 
relevant market but also shows that the simple existence of the BER does not offer legal 
certainty as such. They consider that the pool in question is not covered by the BER "if 
the  relevant  market  is  the  global  nuclear  liability  market"  (probably  because  of  high 
market shares). However, "if the relevant market is the global general liability market", 
the pool would be covered by the BER. 

2.2.3.2.  The notion of "new risks" 

150. 

According to article 2(7) of the BER, "new risks means risks which did not exist before, 
and  for  which  insurance  cover  requires  the  development  of  an  entirely  new  insurance 
product,  not  involving  an  extension,  improvement  or  replacement  of  an  existing 
insurance product". Recital 20 of the BER further clarifies the definition, stating that: 

only  risks  which  did  not  exist  before  are  included  in  the  definition,  thus  excluding  for  example 
risks  which  hitherto  existed  but  were  not  insured.  Moreover,  a  risk  whose  nature  changes 
significantly (for example a considerable increase in terrorist activity) falls outside the definition, 
as  the  risk  itself  is  not  new  in  that  case.  A  new  risk,  by  its  nature,  requires  an  entirely  new 
insurance product, and cannot be covered by additions or modifications to an existing insurance 
product. 

151. 

From replies to the targeted Questionnaires it appears that some pools seem to interpret 
this definition too broadly, wrongly considering that they are being covered by the BER. 
First, it is unlikely that a risk that existed before such as pollution would be considered 
"new"  within  the  definition  in  the  BER,  even  if  this  risk  is  "an  unknown  risk,  which 

EN 

37 

   EN 

152. 

153. 

demands studies and specific knowledge". Secondly, only pools which were created after 
31 March 2003 (i.e. the entry into force of the current BER) in order to cover new risks 
are exempt, independently of their market shares. 

Therefore,  pools  which  do  not  correctly  apply  the definition  of  "new  risks",  as well  as 
pools which started to cover "new risks" more than 3 years ago, should assess whether 
they comply with the thresholds established by the BER for the second category of risks, 
i.e risks which are not new. It appears from the replies that not all of the pools make this 
new assessment, which means that they could be outside the BER without being aware 
of it. 

Several replies to Questionnaires emphasised the fact that the definition of "new risks" 
should be clarified and extended69. Moreover, some of the respondents consider that the 
BER  hinders  the  setting-up  of  pools  with  innovative  policies  because  the  definition  of 
"new  risk"  in  the  BER  is  not  clear.  This  shows  that  there  are  situations  where  pools 
refrain  from  innovation  as  they  are  reluctant  to  cooperate  on  risks  which  might  not  be 
considered "new" and could therefore fall outside the BER. 

154. 

This also suggests that there may be a certain amount of confusion between the scope of 
what is unambiguously exempted under the BER and the larger set of agreements which 
is exempt under Article 81(3) due to efficiencies created. 

2.2.4.  Pools appear to have positive effects 

155.  Many respondents both to the Consultation Paper and Questionnaires consider that pools 
help insurers and reinsurers to gain the necessary experience of risks with which they are 
unfamiliar.  For  instance  environmental  pools  would  allow  smaller  and  medium-sized 
insurers  to  share  information  and  to  gather  experience  in  evaluating  environmental 
damage. 

156.  Moreover,  several  respondents  emphasised  a  range  of  positive  effects  of  pools  such  as 
the fact that they increase the availability of insurance products on the market and that 
cross-border pools create a more integrated insurance industry throughout the EU. Pools 
would also allow smaller and medium-sized insurers to enter and remain in the market 
and  to  gain  the  necessary  experience  of  risks  with  which  they  are  unfamiliar.  The 
Commission's services agree that pools can give rise to such positive effects and this is 
one of the arguments that the BER mentions itself in Recital 18. 

2.2.5.  Risk of reduction in cooperation for pools 

157. 

158. 

Some of the pools which are very much in favour of renewing the BER appear not to fall 
foul of Article 81(1) and therefore would have no reason under the competition rules, to 
stop cooperating. 

However,  many  respondents  both  to  the  Consultation  Paper  and  to  the  targeted 
Questionnaires mentioned that this form of cooperation would become more difficult or 
even  impossible  due  to  legal  uncertainty  and  that  many  pool  members  would  consider 
withdrawing  from  the  pool  due  to  the  lack  of  legal  certainty.  They  argued  that  the 
consequence would be that some risks which are "not attractive"(such as nuclear risks) 

69 

For instance, one respondent argued that risk of terrorism is not new but that nowadays it is considered new 
because  of  the  possible  impact  and  geographical  scope;  some  risks  may  not  be  new  in  some  markets  but 
totally new in other markets.  

EN 

38 

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would no longer be covered, as this would not generate enough premium to justify the 
legal uncertainty. 

159. 

160. 

In addition some respondents considered that a decrease in insurance capacity could not 
be  ruled  out,  especially  in  the  context  where  emerging  risks  in  the  area  of  natural 
catastrophes may increase the need for joint coverage of risks. 

On the basis of the evidence before the Commission at this stage, it appears that there is 
some risk of non-cooperation in this area in the event of non-renewal. Although this risk 
may  not  be real  and  significant,  it  may  be  appropriate  to  keep an  exemption  under  the 
BER in place for pools at least for a certain further period of time beyond expiry of the 
current BER in 2010.  

3. 

CONCLUSIONS AND PROPOSALS 

161. 

162. 

It  appears  that  covering  large  risks  for  which  individual  insurance  companies  are 
reluctant  or  unable  to  insure  the  entire  risk  alone  is  specific  to  the  insurance  sector, 
which  triggers  an  enhanced  need  of  cooperation.  It  also  appears  at  this  stage  that  this 
enhanced  need  for  cooperation  would  need  to  be  facilitated  by  a  BER  for  a  certain 
further period of time. 

It should be noted however that 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  pools  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  market  share  thresholds  and  other  conditions  established  by  the 
BER. Contrary to this practice, it  must be stressed that, even in the case of renewal of 
this part of BER, insurance companies concerned would still need to carry out a careful 
legal assessment of a pools' compliance with the competition rules. This analysis would 
have  to  ascertain  whether  the  pool  in  question  is  restrictive  of  competition  in  the  first 
place and then, where the response is affirmative, to ensure that the conditions set out in 
the BER, particularly the market share conditions are fulfilled. 

163.  Moreover, neither the BER nor another legal instrument can define the relevant market. 
It can merely establish clear rules to be followed for this purpose. Defining the relevant 
market is a matter which must be individually assessed by pools, in the framework of the 
legal assessment mentioned above. 

164. 

In the event that the Commission decides to renew the BER for this form of cooperation, 
the current text of the BER would need to be significantly redrafted, in particular with a 
view to bringing the market share rules in line with the rules on other forms of horizontal 
cooperation.

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39 

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V.  SECURITY DEVICES 

1. 

THE SCOPE OF THE BER 

165. 

This  form  of  cooperation  enables  insurers  to  evaluate  better  the  risks  that  they  cover. 
Indeed,  as  provided  by  Recital  24  of  the  BER,  this  form  of  cooperation  "can  be 
beneficial in providing a benchmark to insurers and reinsurers when assessing the extent 
of  the  risk  they  are  asked  to  cover  in  a  specific  case,  which  depends  on  the  quality  of 
security equipment and of its installation and maintenance". Consequently, insurers can 
calculate more precisely the premium they charge. In theory, policyholders benefit from 
this form of cooperation because if they buy safety equipment corresponding to certain 
technical specifications, the risk to their property decreases, which can lead to a decrease 
in  their  insurance  premium.  It  can  also  encourage  manufacturers  of  safety  systems  to 
improve them and thereby minimise the insured risks. 

1.1.  What the BER covers 

1.1.1.  Conditions of the BER 

166. 

The  BER  subject  to  certain  conditions70  covers  agreements  with  respect  to  the 
establishment, recognition and distribution of: 

•  Technical  specifications,  rules  or  codes  of  practice  concerning  security  devices  and 
procedures for assessing and approving the compliance of security devices with such 
specifications, rules or codes of practice; 

•  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 
specifications, rules or codes of practice. 

167. 

These agreements are covered by the BER in so far as no EC-level harmonisation exists. 
Indeed: 

70 

Set out in Article 9 of the BER i.e: "(a) the technical specifications and compliance assessment procedures 
are  precise,  technically  justified  and  in  proportion  to  the  performance  to  be  attained  by  the  security  device 
concerned;  (b)  the  rules  for  the  evaluation  of  installation  undertakings  and  maintenance  undertakings  are 
objective, relate to their technical competence and are applied in a non-discriminatory manner; (c) such specifications and 
rules  are  established  and  distributed  with  an  accompanying statement  that  insurance  undertakings  are  free  to  accept  for 
insurance,  on  whatever  terms  and  conditions  they  wish,  other  security  devices  or  installation  and  maintenance 
undertakings  which  do  not  comply  with  these  technical  specifications  or  rules;  (d)  such  specifications  and  rules  are 
provided simply upon request to any interested person; (e) any lists of security devices and installation and maintenance 
undertakings  compliant  with  specifications  include  a  classification  based  on  the  level  of  performance  obtained;  (f)  a 
request  for  an  assessment  may  be  submitted  at  any  time  by  any  applicant;  (g)  the  evaluation  of  conformity  does  not 
impose on the applicant any expenses that are disproportionate to the costs of the approval procedure; (h) the devices and 
installation  undertakings  and  maintenance  undertakings  that  meet  the  assessment  criteria  are  certified  to  this  effect  in  a 
non-discriminatory manner within a period of six months of the date of application, except where technical considerations 
justify a reasonable additional period; (i) the fact of compliance or approval is certified in writing; (j) the grounds for a 
refusal to issue the certificate of compliance are given in writing by attaching a duplicate copy of the records of the tests 
and  controls  that  have  been  carried  out;  (k)  the  grounds  for  a  refusal  to  take  into  account  a  request  for  assessment  are 
provided in writing; and (l) the specifications and rules are applied by bodies accredited to norms in the series EN 45 000 
and EN ISO/IEC 17025."  

EN 

40 

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where  there  exists  Community  level  technical  specifications,  classification  systems,  rules, 
procedures or codes of practice harmonised in line with Community legislation covering the free 
movement of goods, it is not appropriate to exempt by regulation any agreements among insurers 
on the same subject, since the objective of such harmonisation at European level is to lay down 
exhaustive and adequate levels of security for security devices which apply uniformly across the 
Community. (Recital 24) 

168. 

Therefore,  when  no  harmonisation  has  taken  place  in  the  field  concerned,  agreements 
between  insurers  are  covered  by  the  BER  (provided  that  they  also  fulfil  the  other 
conditions  set  out  in  Article  9  of  the  BER).  However  the  BER  provides  no  exemption 
where  EU  standards  do  exist  –  something  which  has  become  increasingly  common  in 
recent  years.  Thus  the  BER  will  not  exempt  agreements  between  insurance  companies 
for  example  on  the  categorisation  of  security  devices  for  the  purposes  of  setting 
discounts.  

1.1.2. 

Link with the rules on the free movement of goods and services and on the freedom of 
establishment 

169. 

170. 

171. 

71 

72 

73 

74 

75 

In  the  absence  of  harmonisation  at  EU  level  (e.g.  in  anti-burglary  systems),  Member 
States  are  nevertheless  obliged  to  notify  to  the  Commission  and  to  the  other  Member 
States  of  their  draft  national  technical  regulations  (concerning  products  and/or 
information  society  services),  in  accordance  with  Directive  98/34/EC  71.  Moreover, 
Member States must respect the principle of mutual recognition introduced by the ECJ in 
Cassis  de  Dijon72.  In  accordance  with  the  provisions  of  Article  28  EC  and  the  mutual 
recognition principle, goods which are lawfully produced in one Member State cannot be 
banned from sale on the territory of another Member State, even if they are produced to 
technical or quality specifications different from those applied to its own products. The 
only  exceptions  to  this  principles  are  restrictions  that  are  justified  on  the  grounds 
described in Article 30 EC (protection of public morality or public security, protection of 
the  health  and  life  of  humans,  animals  or  plans,  etc)  or  on  the  basis  of  overriding 
requirements  of  general  public  importance  recognised  by  the  case  law  of  the  Court  of 
Justice, and are proportionate to the aim pursued. The same principle applies to services. 

The  Treaty  rules  on  the  free  movement  of  goods  are  not  applicable  to  private 
undertakings and their associations. However, 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)73. 

Unlike  the  Treaty  provisions  on  free  movement  of  goods,  the  provisions  of  Article  39 
(free  movement  of  workers),  43  and  49  (freedom  of  establishment  and  to  provide 
services) are binding not only on the State but also on private bodies74. In case Walrave 
and Koch75, the ECJ ruled that the Treaty prohibition on discrimination on the grounds 

Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 (as amended by Directive 
98/48/EC) laying down a procedure for the provision of information in the field of technical standards and 
regulations and of rules on information society services, OJEU L 204 of 21.07.1998. 
Case 120/78, Judgment of the Court of 20 February 1979 Rewe-Zentral AG v Bundesmonopolverwaltung für 
Branntwein, ECR 1979 p. 0064. 
Joined  Cases  56/64  and  58/64,  Consten  and  Grundig  [1966]  ECR  299,  page  340;  Case  41/69  ACF 
Chemiefarma [1970] ECR 661, para.128. 
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. 

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41 

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of nationality applied not only "to the action of public authorities but extends likewise to 
rules of any other nature aimed at regulating in a collective manner gainful employment 
and the provision of services". The abolition, as between Member States, of obstacles to 
freedom  of  movement  for  persons  would  be  compromised  if  the  abolition  of  State 
barriers  could  be  neutralised  by  obstacles  resulting  from  the  exercise  of  their  legal 
autonomy by associations or organisations not governed by public law.76 

172. 

The application of Article 81 is inherently linked to those relating to the application of 
Article 28 (free movement of goods) and Articles 43 (free movement of persons) and 49 
of  the  EC  Treaty  (free movement  of  services). The  BER  encourages  insurers  to  define 
standards  for  security  devices,  which  can  sometimes  pose  (private)  obstacles  to  the 
marketing  of  security  devices  legally  manufactured  and  sold  in  another  EU  Member 
State,  or  equally  to  the  services  of  installation  and  maintenance  undertakings  whose 
professional qualifications were recognised in another EU Member State. This should be 
taken into account when assessing the need to renew this part of the BER. 

1.2.  What the BER does not cover 

1.2.1.  Agreements in areas which are harmonised at EU level 

173. 

to 

the  Commission's  new  approach 

Agreements  are  outside  the  BER  as  long  as  the  Community  legislator  has  adopted 
harmonisation legislation in the field concerned. For example, the Construction Products 
Directive 89/106 CE77 (which also deals with security devices and safety equipment) isin 
line  with 
technical  harmonisation  and 
standardisation78.  In  accordance  with  a  Council  Resolution79  of  1985,  legislative 
harmonisation is limited to essential safety requirements to which products on the market 
must conform in order to enjoy free movement throughout the Community. For example, 
safety in case of fire is one of the essential requirements to which construction products 
must  conform,  in  accordance  with  the  Construction  Products  Directive.  Public 
authorities  of  Member  States  are  obliged  to  recognise  that  products  manufactured  in 
conformity  with  harmonised  standards  are  presumed  to  conform  to  the  essential 
requirements  established  by  the  directive  in  question.  If  the  producer  does  not 
manufacture  in  conformity  with  these  standards,  he  has  an  obligation  to  prove  that  his 
products conform to the essential requirements. 

174. 

The task of drawing up technical production specifications is entrusted to organisations 
competent in industrial standardisation, which take the current stage of technology into 
account  when  doing  so.  The  European  Committee  for  Standardisation  (CEN)  and  the 
European  Committee  for  Electrotechnical  Standardisation  (CENELEC)  are  the  only 
bodies  with  the  competence  to  adopt  European  harmonised  standards  in  the  field  of 

76 

77 

78 

79 

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. 
Council  Directive  89/106/EEC  of  21  December  1988  on  the  approximation  of  laws,  regulations  and 
administrative provisions of the Member States relating to construction products, OJ L 40, 11. 02. 1989. 
The  aim  of  completing  the  internal  market  at  the  end  of  1992  necessitated  a  new  approach  to  technical 
harmonisation  and  the  use  of  standardisation.  In  its  communication  entitled  "Technical  harmonization  and 
standardization:  a  new  approach"  [COM(1985)19  final  -  Not  published  in  the  Official  Journal],  the 
Commission therefore proposed that the methods and procedures be revised. The main idea is to develop an 
approach establishing general rules which are applicable to sectors or families of products as well as types of 
hazard.  This  avoids  the  lengthy  decision-making  procedures  which,  in  the  past,  established  technical 
harmonization through very technical and detailed product-specific directives. 
Council  Resolution  (85/C  136/01)  of  7  May  1985  on  a  new  approach  to  technical  harmonization  and 
standards – OJ C136 of 4 June 1985. 

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42 

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security  devices/safety  equipment,  following  a  mandate  issued  by  the  European 
Commission after consultation of Member States. The standardisation mandate is issued 
according to the procedure of Directive 98/34/EC. 

175. 

The adoption of protectionist practices by Member States is prohibited For example, in 
accordance  with  Article  6  of  the  Construction  Products  Directive,  "…Member  States 
shall ensure that the use of such products, for the purpose for which they were intended, 
shall not be impeded by rules or conditions imposed by public bodies or private bodies 
acting  as  a  public  undertaking  or  acting  as  a  public  body  on  the  basis  of  a  monopoly 
position". 

1.2.2.  Agreements in areas which do not comply with the conditions provided in Article 9 of the 

BER 

176. 

177. 

178. 

Several conditions must be fulfilled for an agreement in relation to security devices to be 
covered  by  the  BER.  One  is  that  "such  specifications  and  rules  are  established  and 
distributed  with  an  accompanying  statement  that  insurance  undertakings  are  free  to 
accept for insurance, on whatever terms and conditions they wish, other security devices 
or installation and maintenance undertakings which do not comply with these technical 
specifications or rules"80. 

However,  the  Consultation  indicates  that  even  if  an  agreement  does  allow  insurers  to 
insure  property  protected  by  such  non-compliant  devices  or  installation/maintenance, 
this is often only a purely theoretical freedom. Although the agreement itself could easily 
comply with the BER ("accompanying statement that insurance undertakings are free to 
accept  other  security  devices"),  in  practice  its  effects  could  become  obligatory:  for 
example, it appears from several replies to the Consultation, that insurers do extensively 
use  the  specifications  and  rules  commonly  established  by  the  agreement,  with  the 
consequence that these agreements become, de facto, mandatory for the security devices 
producers or the installation and maintenance undertakings. As policyholders will only 
buy  security  devices  that  conform  to  the  commonly  agreed  standards,  producers, 
installers and maintenance providers of security devices will need to comply with these 
standards.  

It  should  also  be  noted  that  decisions  or  recommendations  of  associations  of 
undertakings,  although  non  binding,  could  infringe  Article  8181  .  In  such  cases  it  is 
necessary  to  consider  whether  members  in  the  past  have  tended  to  comply  with 
recommendations 
the 
recommendation would have a significant influence on competition within the relevant 
market.  This  would  suggest  that  the  BER  grants  insurers  preferential  treatment  as 
compared  to  other  sectors,  since  any  non-binding  agreement,  even  if  it  does  have 
recommendation character, can be exempted. 

that  have  been  made,  and  whether  compliance  with 

80 
81 

Article 9 c) of the BER. 
Case  8/72  Vereeniging  van  Cementhandelaren  v  Commission  [1972]  ECR  977;  Case  71/74  FRUBO  v 
Commission  [1975]  ECR  563;  Cases  209/78  etc  Van  Landewyck  v  Commission  [1980]  ECR  3125;  Cases 
96/82  [1983]  ECR  3369;  Case  45/85  VDS  v  Commission  [1987]  ECR  405,  para  32;  Fenex  OK  [1996]  L 
181/28, paras 32-42. 

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43 

   EN 

                                                   
2. 

MAIN FINDINGS OF THE REVIEW AND ANALYSIS 

2.1. 

179. 

180. 

2.2. 

181. 

Question One: is the insurance sector special or different to other sectors such that 
it gives rise to an enhanced need for cooperation? 

It appears (and this is supported by replies to the Consultation) 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. 

Question Two: does this enhanced need for cooperation require a legal instrument 
such as the BER in order to protect or facilitate it? 

As  it  appears  that  this  form  of  cooperation  is  not  specific  to  the  insurance  sector,  the 
Commission  has  doubts  whether  the  BER  is  required  in  order  to  facilitate  this 
cooperation. In addition, as explained below, the interest to reduce risk exposure needs 
to  be  carefully  weighed  against  the  potentially  market-partitioning  effect  of  private 
standardization at national level. 

2.2.1.  Competition issues on the downstream market for security devices  

182. 

183. 

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/services.  Some  of  the  replies  confirmed  Commission's  Services  concerns 
already identified in the Business Insurance Sector Inquiry. 

One consumer association's argued in response to the Consultation, that difficulties could 
arise  if  customers  wish  to  switch  to  suppliers  of  security  devices  that  do  not  wish  to 
adhere to the standards. One European association of producers of security devices in its 
reply  to  the  Commission's  Questionnaire  argued  that  consumers  must  qualify  for 
acceptance  for  insurance  by  proving  they  apply  approved  security,  devices,  systems, 
installations  and  services  for  achieving  an  acceptable  level  of  prevention  as  desired  by 
the associations of insurers. In addition one NCA submitted that cooperation in relation 
to the distribution of technical information regarding security devices should not be too 
restrictive  because  this  may  lead  to  a  diminution  of  competition  in  the  downstream 
market for security devices. 

2.2.2. 

The existence of obstacles to the free movement of goods and services  

184. 

A  respondent  from  one  European  security  devices  association  argued  that  in  the  most 
Member  States  only  installations  and  services  from  regionally  or  nationally  operating 
"approved" suppliers, using "approved" devices are accepted by the insurance companies 
(who  are  themselves,  mostly  organised  within  national  associations). According  to  this 
respondent,  national  quality  marks  based  on  national  certification  bodies  and  test 
laboratories prevail over national quality marks of different EU Member States even if 
they are tested against the same standards. This association argued that the high costs of 
multiple  testing  and  certification  are  a  significant  barrier  to  marketing  new  and 
innovative  products  in  to  the  European  market.  This  respondent  considers  that 

EN 

44 

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CEN/CENELEC  European  harmonised  standards  should  be  applied  instead.  The 
Commission also considers that European Standardisation has proven to be a successful 
tool for the completion of the Single Market for goods82. 

185. 

It  appears  that  a  large  number  of  historically  developed  national,  regional  or  technical 
requirements fragment the European market and are a growing barrier for efficiency in 
development,  design,  manufacturing,  installation  and  maintenance  of  security  devices 
and  systems.  A  2004  Report83  also  emphasised  that  a  range  of  obstacles  to  the  free 
movement  of  goods  continue  to  exist  and  these  should  no  longer  be  accepted:  "Free 
movement  continues  to  be  hindered  by  a  range  of  local  rules,  often  applied  arbitrarily 
and in clear contradiction to the mutual recognition principle that is the cornerstone of 
the internal market". The estimated cost of the non-application of the mutual recognition 
principle is around EUR 150 billion. Yet, the BER encourages the de facto adoption of 
infra-European industry standards84. 

2.2.3. 

The  scope  of  the  BER  is  significantly  reduced  or  eliminated  due  to  existing  EU  level 
harmonisation 

186. 

Approximately 90 EU harmonised standards (or technical specifications) concerning fire 
detection and fire alarm systems as well as fixed fire fighting systems have been already 
published  in  the  EU's  Official  Journal  and  another  30  EU  harmonised  standards  are 
under  development  for  different  categories  of  construction  products.  These  technical 
specifications  are  not  mandatory  and  maintain  their  status  of  voluntary  standards  (See 
Annex 12). 

187. 

It  appears  that  this  standardisation  work  covers  to  a  large  extent  the  possible  fields  of 
technical harmonisation for these categories of products. Thus, the scope of the BER is 
being continually reduced.  

188. 

EU-harmonised standards are listed on this webpage: 

http://ec.europa.eu/enterprise/newapproach/standardization/harmstds/reflist.html 

2.2.4. 

Transparency and non-discrimination in standard-setting 

189. 

Since the early 1990ies, the Commission has recognised the potential economic benefits 
of  industry  standard  setting,  but  warned  against  its  anti-trust  risks.  In  particular,  the 
Commission  has  always  advocated  that  the  standard  setting  process  be  open  to  all 
interested industry participants and the results be made available on fair, reasonable and 
non-discriminatory 
its 
Communication85 on the role of European standardisation in the framework of European 
policies  and  legislation  that  improving  the  efficiency  of  standardisation  entails,  among 
other  things,  the  involvement  of  all  interested  parties  in  the  standardisation  process 
because this helps enhance the strategic value of standardisation for competitiveness and 

the  Commission  has 

terms.  Similarly, 

stressed 

in 

82 

83 

84 

85 

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. 
Report  from  the  High  Level  Group  chaired  by  Wim  Kok:  Facing  the  challenge  –  The  Lisbon  strategy  for  growth  and 
employment, November 2004, p. 26. 
"There will clearly be a point at which the specification of a private standard by a group of firms that are jointly dominant 
is  likely  to  lead  to  the  creation  of a  de  facto  industry standard"  (Paragraph  174  of  the  Commission  notice  of  6  January 
2001: Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements, Official Journal 
C 3 of 06.01.2001). 
Communication from the Commission to the European Parliament and the Council, 18.10.2004. 

EN 

45 

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facilitates  its  uniform  application.  Also  the  recent  Commission  Communication 
"Towards  an  Increased  Contribution  from  Standardization  to  Innovation  in  Europe"86, 
states  that  it  is  necessary  that  the  standard-setting  process  is  in  line  with  European 
competition  law;  "standardization  complements  market-based  competition,  typically  in 
order 
interoperability  of  complementary 
products/services  and  to  agree  on  test  methods  and  on  requirements  for  safety,  health, 
organizational and environmental performance". 

to  achieve  objectives  such  as 

the 

190.  Moreover,  the  Commission's  Guidelines  on  horizontal  cooperation87  provide  in 
paragraph 172 that "all competitors in the market(s) affected by the standard should have 
the  possibility  of  being  involved  in  discussions.  Therefore,  participation  in  standard 
setting should be open to all, unless the parties demonstrate important inefficiencies in 
such  participation  or  unless  recognised  procedure  are  foreseen  for  the  collective 
representation of interest, as in formal standard bodies". 

191. 

The relevant section of the BER contains none of these general requirements and does 
not,  in  particular,  force  insurers  to  involve  all  manufacturers  and  service  providers 
concerned  when  deciding  standards.  This  lack  of  transparency  is  presumably  closely 
linked to the subsequent de facto exclusion of certain manufacturers from the market. 

192.  Moreover, "to avoid elimination of competition in the relevant market(s), access to the 
standard  must  be  possible  for  third  parties  on  fair,  reasonable  and  non-discriminatory 
terms"88.  It  seems  that  not  all  security  devices  producers  have  such  a  "fair,  reasonable 
and non-discriminatory" access to standards, given that their products must comply with 
different  sets  of  national  rules,  depending  on  the  Member  State  where  they  sell  their 
products. 

193. 

From  replies  to  the  Consultation  and  Questionnaires  it  appears  that  some  of  the 
agreements  currently  existing  in  different  Member  States  cover  sectors  where  there  is 
already harmonisation  at  EU  level. Such  agreements  are  therefore  outside  the  scope of 
the  BER.  If  this  is  the  case,  companies  involved  in  such  agreements  should  have 
undertaken a self-assessment on the basis of Article 81(1) and 81(3). It is difficult to see 
why further standardisation at national level is indispensable and thus exemptible in such 
a case, but of course an assessment would need to be conducted on a case-by-case basis. 

194. 

Therefore,  since  agreements  on  technical  specifications  for  security  devices  and  their 
installation  are  not  specific  to  the  insurance  sector,  and  since  there  are  competition 
concerns and obstacles to free movement of goods and services within the EU, it appears 
that a BER is not appropriate in order to protect or facilitate these agreements. 

2.3. 

Applicability of Article 81(3) 

195. 

Agreements  regarding  security  devices  and  their  installation  and  maintenance  can  be 
exempt under Article 81(3), provided the positive effects of such agreements outweigh 
restrictive effects on competition. 

86 

87 

88 

Communication from the Commission to the Council, the European Parliament and the European Economic 
and Social Committee, 11.3.2008. 
Commission  notice  of  6  January  2001:  Guidelines  on  the  applicability  of  Article  81  of  the  EC  Treaty  to 
horizontal cooperation agreements, Official Journal C 3 of 06.01.2001  
Guidelines  on  the  applicability  of  Article  81  of  the  EC  Treaty  to  horizontal  cooperation  agreements  (see 
footnote 18), paragraph 174. 

EN 

46 

   EN 

                                                   
196. 

Several respondents emphasised positive effects of agreements in this area of the BER. 
Such  positive  effects  can  and  should  be  taken  into  account  when  analysing  the 
application of Article 81(3) on a case-by-case basis. For example these agreements assist 
with  risk  prevention  and  help  to  develop  risk  insurability.  They  also  provide  a 
benchmark to insurers and reinsurers when assessing the extent of the risk they are asked 
to cover in a specific case. Otherwise, insurers would have to fund separate testing and 
approval, costs which would then have to be passed on to policyholders. Also, when the 
same security device requirements are used it is easier for consumers to switch between 
insurance  undertakings,  and  the  existence  of  a  single  standard  assists  manufacturers  in 
bringing new technology and security devices to the various EU national markets. 

197. 

Furthermore insurers will benefit from guidance in terms of applicability or otherwise of 
Article  81  of  the  Treaty  to  their  agreements  afforded  by  the  general  standardisation 
chapter  in  the  Commission's  Notice  on  the  Applicability  of  Article  81  to  Horizontal 
Cooperation Agreements which are currently being reviewed.89 

3. 

CONCLUSIONS AND PROPOSALS 

198. 

199. 

On  the  basis  of  the  evidence  before  the  Commission,  it  appears  that  competition 
problems arise on the downstream market for the supply security devices, given that the 
use  of  security  devices  not  compliant  with  national  or  regional  certification/listing 
schemes will not be accepted by insurers or their associations. 

This type of behaviour also constitutes an obstacle to free movement of goods, persons 
and services, particularly when the mutual recognition principle is not applied in practice 
(in  non-harmonized  areas).  As  regards  the  products  and  services  which  have  been 
harmonised at EU level, replies to the Consultation show that cooperation is still taking 
place and some stakeholders incorrectly consider they are covered by the BER. 

200.  Where an EU standard has been adopted, the BER does not apply and has no effect. It 
should  be  noted  that  the  remaining  scope  for  possible  agreements  in  this  area  is 
significantly reduced or eliminated in relation to some products since EU harmonisation 
is  now  extensive  and  increasing.  The  effect  of  the  BER  is  therefore  to  allow  national 
harmonisation  of  security  devices  by  insurance  companies  –  very  often  without  the 
involvement of the manufacturers – where no EU standards have yet been adopted. 

201. 

It should be borne in mind that even if cooperation is outside the scope of the BER as 
regards a harmonised field, the agreements in question may not restrict competition (in 
terms of being prohibited by Article 81(1)) or if they do, they may qualify for exemption 
on the basis of Article 81(3). Furthermore insurers will benefit from guidance in terms of 
applicability  or  otherwise  of  Article  81  to  their  agreements  afforded  by  the  general 
standardisation chapter in the Horizontal Guidelines. 

202. 

Therefore, the Commission proposes not to renew the BER for agreements in this area.

89 

OJ, C3 of 6 January, 2001. 

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47 

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VI.  CONCLUSIONS 

1. 

OPTIONS AND PROPOSALS  

203. 

204. 

205. 

206. 

207. 

208. 

The Commission has come to the preliminary conclusion that there are good reasons to 
protect or facilitate the agreements on cooperation in the area of joint calculations, tables 
and  studies,  that  the  current  BER  is  doing  this  effectively  and  should  therefore  be 
renewed.  The  Commission  has  not  yet  decided  whether  to  amend  the  structure  or 
drafting of the current exemption. However, in terms of improving it, a range of options 
would be considered. 

The Commission's view at this stage is that pools are also specific to the insurance sector 
and  that  there  are  several  arguments  in  favour  of  the  necessity  of  a  BER  in  order  to 
protect or facilitate such agreements. The Commission therefore proposes to renew the 
BER  in  relation  to  pools.  However,  the  Commission  would  be  likely  to  significantly 
redraft  the  wording  of  the  chapter  in  question  in  order  to  take  on  board  many  of  the 
comments received during the Review and also to make it consistent with other general 
and sector-specific legislation.  

Furthermore the Commission considers at this stage of the Review that even if the risk of 
non-cooperation in these two areas may be low, the possibility that such pro-competitive 
cooperation may diminish, should be avoided.  

Cooperation 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.  The  Commission  therefore  proposes  not  to  renew  the  BER  for  SPCs.  Further 
guidance  on  SPCs  may  be  envisaged  by  the  Commission  if  non-renewal  is  the  final 
decision. 

Agreements in relation to security devices appear to give rise to concerns in relation to 
both  competition  and  the  development  of  the  EU's  internal  market.  Moreover,  they  do 
not appear specific to the insurance sector.  

The  Commission  therefore  proposes  non-renewal  of  the  BER  for  this  category  of 
agreements.  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  Guidelines90  which  are  currently 
under review.  

2. 

NEXT STEPS 

209. 

DG  Competition  plans  to  hold  a  public  event  following  publication  of  the  Report  and 
Working Document, on 2 June 2009 in order to give the industry and stakeholders a final 
opportunity to make representations before the Commission takes a decision on whether 
to renew. 

90 

Commission  Notice  of  6  January  2001:  Guidelines  on  the  applicability  of  Article  81  of  the  EC  Treaty  to 
horizontal cooperation agreements, Official Journal C 3 of 06.01.2001 

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48 

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210. 

The  Commission  looks  forward  to  receiving  comments  from  the  European  Parliament 
and  Council.  The  Commission's  Services  welcome  any  other  comments  on  the  Report 
and/or Working Document which should quote the reference: "Review of Insurance BER 
– COMP/D1 HT 1221" and be sent to: 

COMP-GREFFE-ANTITRUST@ec.europa.eu 

211. 

Although  any  comments  should  be  sent  in  writing  to  the  address  above,  queries  by 
telephone  may  be  addressed  to  Eithne  McCarthy  at  Tel:  +32  (0)2  299  4138;  or  Laura 
Stefanescu at Tel: +32 (0)2 298 6569. 

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ANNEX 1 
Definitions 

Please  note  that  the  definitions  provided  below  are  exclusively  for  the  purpose  of  the 
report  and  do  not  necessarily  correspond  to  the  definitions  contained  in  EU  insurance 
legislation. 

Acronyms for Member States 

AT – Austria  

IT - Italy 

BE – Belgium 

LT - Lithuania 

CY – Cyprus  

LU - Luxemburg 

CZ – Czech Republic 

LV - Latvia 

DE – Germany 

MT - Malta 

DK – Denmark 

NL – The Netherlands 

EE – Estonia 

PL - Poland 

EL – Greece 

PT - Portugal 

ES – Spain 

SE - Sweden 

FI – Finland 

SK - Slovakia 

FR – France 

SL - Slovenia 

HU – Hungary 

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50 

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UK – United Kingdom 

IE – Ireland 

Business insurance 

The provision of insurance products and services to any type of business, irrespective of 
its size, form of organisation or legal structure.  

Small and Medium Sized enterprises ("SME") 

Any company whose staff number is below 250 people and whose turnover is under 50 
MEUR  (million  EUR).  Micro-companies  are  thus  also  included  in  the  SME  category. 
Businesses exceeding these thresholds are considered large corporate clients (LCC). 

EN 

51 

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ANNEX 2 
Replies to Consultation 

Number of Replies 

27 

11 

1 

8 

8 

6 

60 

Respondent Group 

Insurance Associations 

Insurers 

Insurance customers 

Supervisory Authorities 

Consumer Organisations 

Other Entities91 

TOTAL 

Insurance Associations: 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

ABI Association of British Insurers 

AIRMIC Association of Insurance and Risk Managers 

ANIA Italian Insurance Association  

APS Portuguese Association of Insurers  

Association Francaise de l'Assurance 

Assuralia 

BDI Bundesverband der Deutschen Industrie92 

BFV  Federal  Association  of  Insurance  Intermediaries  and  Companies  tied  to  a 
specific firm 

BIPAR European Federation of Insurance Intermediaries 

CEA European Insurance and Reinsurance Federation 

CEFOR Central Union of Marine Underwriters 

Czech Insurance Association 

DIA Danish Insurance Association 

91 

92 

Society of Actuaries in Ireland, Norton Rose LLP (law firm), Austrian Economic Chamber, Harold Caplan 
(private citizen), European Actuarial Consultative Group. 
Three Associations (BDI Bundesverband der Deutschen Industrie, DVS, BFV) responded together. 

EN 

52 

   EN 

                                                   
– 

– 

– 

– 

– 

– 

– 

Fire Protection Association 

FNH Norwegian Financial Services Association 

Försäkringsförbundet Swedish Insurance Federation 

GDV German Insurance Association 

Hellenic Association of Insurers Companies 

Irish Insurance Federation 

Lloyd's Market Association 

–  MABISZ Association of Hungarian Insurance Companies 

PEIF Pan European Insurance Forum 

PKV Verband der privaten Kranken Versicherung 

Slovak Insurance Association 

VNAB Cooperatieve Vereniging Nederlandese Assurantie 

VVO Austrian Insurance Association 

VVV Dutch Association of Insurers 

– 

– 

– 

– 

– 

– 

Insurers: 

– 

– 

– 

– 

Allianz SE 

Aviva 

AXA 

Ecclesia 

–  Marsh Group 

– 

– 

– 

– 

– 

– 

Nürnberger Versicherung 

Provinzial NW Holding 

QBE Insurance 

R+V Versicherung AG 

RSA Insurance Group 

Zurich Financial Services 

Supervisory Authorities: 

– 

CBFA Commission Bancaire, Financière et des Assurances 

EN 

53 

   EN 

– 

– 

– 

– 

– 

– 

– 

CSA Insurance Supervisory Commission Romania 

Czech National Bank 

Dirección General de Seguros y Fondos de Pensiones 

FKTK Financial and Capital Market Commission of Latvia 

ISP Portuguese Insurance and Pension Funds 

ISVAP Istituto per la Vigilanza sulle Assicurazioni Private 

National Bank of Slovakia 

Risks management federation: 

– 

FERMA 

Consumer Associations: 

Altroconsumo 

Deco Proteste 

KEPKA Consumers protection Center 

NACP Hungary 

TEST-Achats 

DVS German Association for the Protection of Insurance Customer 

VZBV Verbraucherzentrale Bundesverband 

– 

– 

– 

– 

– 

– 

– 

Other Entities: 

– 

– 

– 

– 

– 

Actuaries Society in Ireland 

Caplan Harold 

FIN-USEs Rzu Gov Poland 

Groupe Consultatif Actuariel Europeen 

Norton Rose LLP 

–  WKO Austrian Federal Economic Chamber 

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ANNEX 3 
Questions from Consultation on 
Joint Calculations, Tables and Studies 

Note:  You  are  requested  to  answer  the  questions  with  reference  to  the  market  or 
markets in which you are or have been active (this could be a single EU Member State or 
a  number  of  EU  Member  States).  Please  always  indicate  to  which  Member  State  your 
comments relate. Wherever possible, please support your arguments with evidence. 

(i)  How  do  you  evaluate  the  current  functioning  of  the  BER  in  this  area? 
(ii)  What  is  the  impact  of  this  form  of  cooperation  on  the  demand  and  supply  of 
insurance  and  on  the  pricing  of  insurance  policies?  (iii)  To  what  extent  is  the 
performance (profitability, solvency) of the insurance industry affected? Please explain 
your answers. 

Are  there  any  changes  that  you  believe  may  be  useful  in  the  current  BER  in  order  to 
improve  its  functioning  e.g.  differentiating  between  insurance  classes  /  specific  risks 
(e.g.  should  the  frequency  and  diversifiability  of  specific  risks  play  a  role  in  block 
exempting cooperation among insurers)? Please explain the reasons for your answer. 

Considering  the  greenfield  market  entries  in  the  insurance  sector93  over  the  last  five 
years to your knowledge (i) did such entrants make use of the joint calculations, tables, 
and studies envisaged in the BER? (ii) Is there evidence that this exemption has affected 
entry and if so, how? (iii) Please describe any entry barriers affected by this exemption 
and provide estimates of the costs involved in overcoming these barriers. Please provide 
any analysis, report, study or survey to substantiate your views. 

(i) What do you consider would be the impact if any of the non-renewal of the BER on 
the scope and level of cooperation in this particular area? Please explain why you would 
expect  this  impact.  (ii)  What  do  you  consider  would  be  the  economic  effects  (e.g.  in 
terms  of  market  structure,  entry  barriers,  competitiveness  of  smaller  insurers,  level  of 
customer  mobility,  etc.)  of  these  changes  in  cooperation?  Please  provide  any  analysis, 
report, study or surveys to substantiate your claims. 

Do  you  consider  there  to  be  alternative  (pro-competitive)  solutions  to  overcome  the 
information asymmetry problems faced by the industry other than through renewal of the 
BER as it is currently drafted? Please explain your answer. 

1. 

2. 

3. 

4. 

5. 

93 

Entry  by  insurance  companies  in  a  Member  State  through  the  establishment  of  subsidiaries/branches  as  opposed  to  the 
acquisition of insurance companies already existing in that Member State. 

EN 

55 

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ANNEX 4 
Questions from Consultation on 
Standard Policy Conditions and Models on Profits 

Note: You are requested to answer the questions with reference to the market or markets 
in  which  you  are  or  have  been  active  (this  could  be  a  single  EU  Member  State  or  a 
number  of  EU  Member  States).  Please  always  indicate  to  which  Member  State  your 
comments relate. Wherever possible, please support your arguments with evidence. 

(i) How do you evaluate the current functioning of the BER in this area? (ii) What is the 
impact  of  this  form  of  cooperation  on  the  demand  and  supply  of  insurance  and  on  the 
pricing of insurance policies? To what extent is the performance (profitability, solvency) 
of the insurance industry affected? Please explain your answers. 

Are there any changes that you believe may be useful in the current BER to improve its 
functioning (e.g. differentiating between insurance classes)? Please be specific and give 
reasons for your answer. 

Considering  the  greenfield  market  entries  over  the  last  five  years  in  the  insurance 
sector94, to your knowledge: (i) did such entrants make use of standard policy conditions, 
clauses,  models  envisaged  in  the  BER?  (ii)  Is  there  evidence  that  this  exemption  has 
affected  entry  and  if  so  how?  (iii)  Please  describe  any  entry  barriers  affected  by  this 
exemption  and  provide  estimates  of  the  costs  involved  in  overcoming  these  barriers. 
Please provide any analysis, report, study or survey to substantiate your claims. 

(i) What do you consider would be the impact if any of the non-renewal of the BER on 
the scope and level of cooperation in this particular area? Please explain why you would 
expect  this  impact.  (ii)  What  do  you  consider  would  be  the  economic  effects  (e.g.  in 
terms  of  market  structure,  entry  barriers,  competitiveness  of  smaller  insurers,  level  of 
customer  mobility,  etc.)  of  these  changes  in  cooperation?  Please  provide  any  analysis, 
report, study or surveys to substantiate your views. 

(i)  In  your  experience,  how  does  cooperation  on  standard  policy  conditions  affect  the 
variety of available insurance policies? (ii) Can cooperation lead to a decreased supply of 
insurance products? 

In your experience, how does cooperation on standard policy conditions affect the use of 
restrictive or exclusionary terms? Please explain your answer. 

1. 

2. 

3. 

4. 

5. 

6. 

94 

Entry  by  insurance  companies  in  a  Member  State  through  the  establishment  of  subsidiaries/branches  as  opposed  to  the 
acquisition of insurance companies already existing in that Member State. 

EN 

56 

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ANNEX 5 
Questions from Consultation on 
Common Coverage of Risks (Pools) 

Note: You are requested to answer the questions with reference to the market or markets 
in  which  you  are  or  have  been  active  (this  could  be  a  single  EU  Member  State  or  a 
number  of  EU  Member  States).  Please  always  indicate  to  which  Member  State  your 
comments relate. Wherever possible, please support your arguments with evidence. 

(i) How do you evaluate the current functioning of the BER in this area? (ii) What is the 
impact  of  this  form  of  cooperation  on  the  demand  and  supply  of  insurance  and  on  the 
pricing  of  insurance  policies?  (iii)  To  what  extent  is  the  performance  (profitability, 
solvency) of the insurance industry affected? Please explain your answers. 

Are  there  any  changes  that  you  believe  may  be  useful  in  the  BER  to  improve  its 
functioning? Please be specific and give reasons for your answer. 

(i) What do you consider would be the impact if any of the non-renewal of the BER on 
the scope and level of cooperation in this particular area? Please explain why you would 
expect  this  impact.  (ii)  What  do  you  consider  would  be  the  economic  effects  (e.g.  in 
terms  of  market  structure,  entry  barriers,  competitiveness  of  smaller  insurers,  level  of 
customer  mobility,  etc.)  of  these  changes  in  cooperation?  Please  provide  any  analysis, 
report, study or surveys to substantiate your claims. 

(i)  Do  you  consider  that  the  current  BER  provisions  define  pro-competitive  pools 
sufficiently?  (ii)  Are  there  any  exceptions  (e.g.  pro-competitive  pools  not  exempted, 
anti-competitive pools exempted)? Please give examples and explain. 

Do  you  consider  that  the  BER  hinders  setting-up  pools  with  innovative  policies  (e.g. 
against natural disasters) on the basis that the risks are not new? Please give examples 
and explain. 

In what sense, if any would non-renewal / absence of the BER affect the setting-up of 
cross-border pools? Please explain your answer. 

1. 

2. 

3. 

4. 

5. 

5. 

EN 

57 

   EN 

 
ANNEX 6 
Questions from Consultation on 
Security Devices 

Note: You are requested to answer the questions with reference to the market or markets 
in  which  you  are  or  have  been  active  (this  could  be  a  single  EU  Member  State  or  a 
number  of  EU  Member  States).  Please  always  indicate  to  which  Member  State  your 
comments relate. Wherever possible, please support your arguments with evidence. 

(i) How do you evaluate the current functioning of the BER in this area? (ii) What is the 
impact  of  this  form  of  cooperation  on  the  demand  and  supply  of  insurance  and  on  the 
pricing  of  insurance  policies?  (iii)  To  what  extent  is  the  performance  (profitability, 
solvency) of the insurance industry affected? 

Are there any changes that you believe may be useful in BER to improve its functioning? 
Please be specific and give reasons for your answer. 

(i)  Considering  the  greenfield  market  entries  over  the  last  five  years  in  the  insurance 
sector95, to your knowledge, did such entrants make use of the cooperation in the field of 
security devices envisaged in the BER? (ii) Is there evidence that the BER has affected 
entry in a positive way in the past? 

(i) What do you consider would be the impact if any of the non-renewal of the BER on 
the scope and level of cooperation in this particular area? Please explain why you expect 
this outcome. (ii) What do you consider would be the economic effects (e.g. in terms of 
market  structure,  entry  barriers,  competitiveness  of  smaller  insurers,  level  of  customer 
mobility,  etc.)  of  these  changes  in  cooperation?  Please  provide  any  analysis,  report, 
study or surveys to substantiate your claims. 

Did  you  experience  any  competition  problems  in  relation  to  the  BER  in  the  following 
sectors:  (i)  production  of  security  devices;  (ii)  evaluation  of  security  devices;  (iii) 
installation and maintenance of security devices? In each case, if so, please explain your 
answer. 

1. 

2. 

3. 

4. 

5. 

95 

Entry  by  insurance  companies  in  a  Member  State  through  the  establishment  of  subsidiaries/branches  as  opposed  to  the 
acquisition of insurance companies already existing in that Member State. 

EN 

58 

   EN 

 
                                                   
ANNEX 7 
General Questions from Consultation 

Note: You are requested to answer the questions with reference to the market or markets 
in  which  you  are  or  have  been  active  (this  could  be  a  single  EU  Member  State  or  a 
number  of  EU  Member  States).  Please  always  indicate  to  which  Member  State  your 
comments relate. Wherever possible, please support your arguments with evidence. 

Do  you  consider  that  the  business  risks  or  information  asymmetries  in  the  insurance 
industry  are  special  compared  to  other  sectors,  such  that  the  proper  functioning  of  the 
sector requires a BER? Please explain your answer. 

From your experience, do insurers use the forms of cooperation exempted in the BER? 
What forms of co-operation are used and why? 

How  do  you  consider  the  scope  and  level  of  cooperation  changed  after  the  BER  came 
into  force  or  the  Member  State  in  which  you  are  active,  entered  the  European  Union? 
Please explain your answer. 

(i)  What  is  the  relationship  between  the  scope  and  level  (intensity)  of  cooperation  and 
the  provisions  /  existence  of  the  current  BER?  (ii)  What  other  factors  (e.g.  market 
structure, maturity of the market, competitiveness, national legislation, etc.) influence the 
level  of  cooperation  in  the  insurance  industry  and  how?  (iii)  How  does  the  level  of 
cooperation influence market structure? Please explain your answer. 

Please list all greenfield entries in the insurance sector96 over the past 5 years. 

If  your  company  entered  the  insurance  sector  since  the  BER  came  into  force,  did  the 
forms  of  co-operation  exempted  in  the  BER  affect  your  entry  and  if  so  please  explain 
how. 

Would  you  expect  a  change  in  the  current  level  of  cooperation  (e.g.  that  is  currently 
covered by the BER) in the case of non-renewal of the insurance BER? Please explain 
what change you would expect and why you would expect it. 

(i) What impact would you expect (e.g. economic, social, etc.) as a consequence of any 
change  in  cooperation?  Please  explain  your  answer.  Please  differentiate  between  any 
such kinds of impact according to stakeholder group. (ii) Please also state if you would 
expect any impact to affect certain groups of stakeholders more than others and why? 

In  your  experience,  does  the  BER  give  rise  to  any  anti-competitive  effects  such  as 
reduced  supply  of  insurance  products  or  higher  prices  due  to  agreements  between 
competitors? Please provide examples to illustrate your response. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

(i) How does the BER affect market  integration in the insurance sector in the EU? (ii) 
Does  the  BER  create  obstacles  to  or  facilitate  cross-border  provision  of  insurance 
services? Please explain your answer. 

96 

Entry  by  insurance  companies  in  a  Member  State  through  the  establishment  of  subsidiaries/branches  as  opposed  to  the 
acquisition of insurance companies already existing in that Member State. 

EN 

59 

   EN 

 
                                                   
11. 

12. 

13. 

14. 

15. 

16. 

How  do  you  consider  expiration  of  the  BER  would  affect  supervision  by  supervisory 
authorities, and competition law enforcement? Please explain your answer. 

Do you consider that non-renewal of the BER would lead to an inconsistent application 
of competition rules across EU Member States? Please explain your answer. 

(i) Which justification for having the current BER (premium calculation argument, 
standard policy argument, pooling argument, etc.) is most important for you / your 
company? Please explain your answer. (ii) What percentage of your business is affected 
by the BER? Please explain how you make this calculation. 

What specific elements of the BER if any, would you like to see improved if a new BER 
were adopted? Please explain your answer. 

Do  you  think  the  BER  should  be  more  tailored  to  specific  risks,  e.g.  according  to  the 
diversifiability and/or the frequency of the underlying risks? Please explain your answer. 

(i)  Do  you  think  the  expiry  of  the  BER  would  have  any  cost  implications  (positive  or 
negative)  in  the  context  of  the  new  actuarial  and  risk  management  requirements  to  be 
imposed  under  the  Solvency  II  project?  (ii)  Would  the  expiration  of  the  BER  have  an 
impact on the conduct of quantitative impact studies (QIS)? If so please explain how and 
why. 

EN 

60 

   EN 

ANNEX 8 
Questionnaires to 
Small and medium sized Insurers 
following Consultation 

1 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Please  provide  the  following  information  in  relation  to your company:  (i)  full  name  of 
company; (ii) your activities, and (iii) size e.g. by turnover / number of employees; (iv) 
in which Member States you are active. 

(i) When did you enter the insurance sector? (ii) Was your entry greenfield97 or through 
acquisition? (iii) Did use of the BER facilitate your entry and if so please explain how? 

(i) Do you enter into any agreements with other insurers under the BER? If so (ii) what 
kinds of agreement; and (iii) how often. 

What do you consider would be the impact if any, of the non-renewal of the BER on the 
scope and level of your cooperation with other insurers under the BER? Please explain 
why you expect this outcome.  

What  do  you  consider  would  be  the  economic  effects  (e.g.  in  terms  of  (i)  insurance 
market structure , (ii) entry barriers, (iii) competitiveness of smaller insurers, (iv) level of 
customer mobility, etc.) of any such changes in cooperation? If available, please provide 
any analysis, report, study or surveys that you consider may substantiate your views. 

Do you consider there to be a link between concentration in the insurance sector and the 
use of the BER. Please explain your answer. 

Do you consider there to be any links between your co-operation under the BER and (i) 
your premiums and (ii) the range of products you offer to policy holders. Please explain 
your answer. 

In the event that the BER is renewed, are there any changes to the BER that you consider 
may be useful to improve its functioning? Please be specific and give reasons for your 
answer. 

Concerning Articles 1, 3 and 4 of the BER_- Joint Calculations and Tables and Studies:  

9. 

10. 

11. 

97 

Do you consider that agreements of this kind are necessary in order to accurately assess 
risk? Please explain your answer. (ii) Is this information available through other sources 
e.g. publicly? 

Do  you  think  that  without  the  BER,  large  insurers  would  continue  to  cooperate  with 
smaller  insurers  in  this  way  by  sharing  information  on  joint  calculations,  tables  and 
studies? 

(i)  Do  you  think  the  expiry  of  the  BER  would  have  any  implications  (positive  or 
negative)  in  the  context  of  the  new  actuarial  and  risk  management  requirements  to  be 
imposed  under  the  Solvency  II  project?  (ii)  Would  the  expiration  of  the  BER  have  an 

Entry  by  insurance  companies  in  a  Member  State  through  the  establishment  of  subsidiaries/branches  as  opposed  to  the 
acquisition of insurance companies already existing in that Member State. 

EN 

61 

   EN 

 
                                                   
impact on the conduct of quantitative impact studies (QIS)? If so please explain how and 
why. 

Concerning Articles 1, 7 and 8 of the BER - Pools 

12. 

13. 

(i) Do you participate in any pools? (ii) Do you consider that those pools are covered by 
the BER. If so, please explain on what basis. 

Do  you  consider  that  you  would  be  able  to  offer  this  kind  of  insurance  outside  of  the 
pool? Please explain your answer. 

Concerning Articles 1, 5 and 6 of the BER - Standard Policy Conditions 

14. 

15. 

(i)  Where  did  you  obtain  the  standard  policy  conditions  that  you  use  in  your  policy 
documents?  (ii)  Do  you  ever  adapt  these  standard  policy  conditions?  (iii)  Do  you 
consider that you are obliged in any way to use these standard policy conditions? 

In terms of the products you offer, do you face competition on policy conditions or only 
on price? Please explain your answers. 

Concerning Articles 1 and 9 of the BER - Technical Specifications, Rules or Codes of Practice for 
Security Devices 

16. 

17. 

18. 

(i) What information do you use in order to assess risk involving security devices? (ii) 
Do you rely on testing results from other insurers / insurance associations? 

In  what  way  are  you  involved  (if  at  all)  in  establishing,  recognising  and  distributing 
technical specifications, rules or codes of practice for security devices. 

Do  you  consider  that  the  fact  that  you  have  the  same  technical  specifications  for 
securitydevices  as  other  insurers  -  facilitates  switching  for  policy  holders  between 
insurers. 

EN 

62 

   EN 

ANNEX 9 
Questionnaires to Pools following Consultation 

1. 

Please provide the following information in relation to your pool / the pool in which you 
participate: 

a. 

b. 

c. 

d. 

e. 

f. 

g. 

(i) name of the pool; (ii) the risks covered by the pool, and (ii) what you consider 
is the relevant product market of the pool; 

where the pool is established; 

when the pool was established; 

list the members of the pool; 

(i) are any members of  your pool also members  of any other pools and (ii) if so 
please list the other pools in which they are involved; 

what do you consider is the geographic market covered by the pool (e.g national, 
European, global etc); 

does the pool cover risks situated in countries other than the country in which the 
pool is established and if so, please list those countries. 

2. 

3. 

4. 

5. 

6. 

7. 

(i) Do you consider that your pool is covered by the BER and if so, (ii) please explain 
why. 

(i)  Do  you  consider  that  it  is  possible  (even  if  this  is  not  currently  happening)  for  any 
individual  members  of  your  pool  to  over  the  same  risks  individually  (i.e.  without  the 
pool); (ii) do any individual members cover the same risks outside of the pool? 

(i)  What  do  you  consider  would  be  the  impact  if  the  BER  were  not  renewed,  on  the 
scope  and  level  of  cooperation  for  pools?  Please  explain  why  you  would  expect  this 
impact. (ii) What do you consider would be the economic effects (e.g. in terms of market 
structure, entry barriers, competitiveness of smaller insurers, level of customer mobility, 
etc.)  of  these  changes  in  cooperation?  Please  provide  any  analysis,  report,  study  or 
surveys to substantiate your claims. 

Do you consider that the BER hinders setting-up pools with innovative policies on the 
basis that the risks are not new? Please give examples and explain. 

In what sense, if any would non-renewal / absence of the BER affect the setting-up of 
cross-border pools? Please explain your answer. 

In the event that the BER were renewed in relation to pools, are there any changes that 
you believe may be useful in the BER to improve its functioning? Please be specific and 
give reasons for your answer. 

EN 

63 

   EN 

 
ANNEX 10 
Questionnaires to 
Producer Federations concerning 
Security Devices following Consultation 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

Please provide the following information in relation to your association: (i) full name of 
the  association;  (ii)  your  activities,  and  (ii)  list  of  your  members  together  with  contact 
details  (name  of  company,  name  of  contact  person,  email  address  and  telephone 
number). 

What  do  you  consider  is  the  impact  of  the  kinds  of  agreements  (between  insurance 
companies) permitted by Article 1(f) of the BER (quoted in the cover letter) on (i) the 
demand and supply of security devices and/or the installation or maintenance of security 
devices and/or the evaluation of undertakings which install or maintain security devices? 
(ii)  the  demand  and  supply  of  insurance  policies  and  (iii)  the  pricing  of  insurance 
policies? 

(i) Do you consider that there is an enhanced need of cooperation between insurers in the 
areas permitted by Article 1(f) of the BER, which is specific to the insurance sector? 

Are you aware of any other similar forms of cooperation in these areas (security devices 
and  technical  specifications  etc)  between  companies  other  than  insurers  or  insurance 
associations? 

Do you consider that the forms of cooperation permitted by Article 1(f) of the BER have 
pro-competitive effects on the insurance market (e.g. by allowing policyholders to switch 
more easily between insurance companies accepting the same type of security devices)? 
Please explain your answer. 

Do  you  consider  that  policyholders  benefit  from  the  forms  of  cooperation  between 
insurers permitted by Article 1(f) of the BER? If so, what do you consider are the main 
benefits for policyholders? 

Have you experienced any competition problems (since 2003) on the downstream market 
for  security  devices  as  a  result  of  the  kinds  of  agreements  between  insurers  that  are 
covered  by  the  BER  in  the  following  sectors:  (i)  production  of  security  devices;  (ii) 
installation and maintenance of security devices; (iii) evaluation of undertakings which 
install or maintain security devices? In each case, if so, please explain your answer. 

Do you consider that you are prevented from producing security devices or from issuing 
any  specifications,  rules  or  codes  of  practice  in  relation  to  the  installation  and 
maintenance  of  security  devices  or  in  relation  to  the  evaluation  of  companies  which 
install or maintain security devices which are not being agreed upon by insurers? 

Given  that  cooperation  between  insurers  on  specifications,  rules  or  codes  of  practice 
concerning security devices is possible to the extent to which these are not harmonised at 
EU level, do you consider that there remains any scope for cooperation between insurers 
in this area? 

10. 

Do you consider that specifications, rules or codes of practice arising from cooperation 
between insurers in the areas covered by Article 1(f) of the BER are too difficult for you 
to comply with or, on the contrary, are you happy with them? 

EN 

64 

   EN 

 
11. 

12. 

Do you actively participate in cooperation between insurers or insurance associations in 
relation to security devices and/or their installation and maintenance (e.g. are you asked 
for  your  views  on  codes  of  practice  or  technical  specifications)?  Could  you  please 
describe the role you play in any such cooperation? 

In the event that the BER is renewed, are there any changes to the BER that you consider 
may be useful to improve its functioning? Please be specific and give reasons for your 
answer. 

EN 

65 

   EN 

ANNEX 11 
Fire Detection and Fire Alarm Systems 
Harmonised European Standards 

Standard reference 

Title 

Citation in OJ 

Directive 

CEN/TR 14568:2003 

EN 54 - Fire detection and fire alarm 

No 

89/106/EEC,

systems - Interpretation of specific clauses 

of EN 54-2:1997 

96/98/EC 

CEN/TS 54-14:2004 

Fire detection and fire alarm systems - Part 

No 

- 

14: Guidelines for planning, design, 

installation, commissioning, use and 

maintenance 

EN 14604:2005 

Smoke alarm devices 

Cited in OJ 

89/106/EEC 

C 319 

(2005-12-14) 

EN 14604:2005/AC:2008 

Smoke alarm devices 

Expected 

89/106/EEC 

EN 54-1:1996 

Fire detection and fire alarm systems - Part 

No 

89/106/EEC 

1: Introduction 

EN 54-10:2002 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

10: Flame detectors - Point detectors 

C 304 

96/98/EC 

(2006-12-13) 

EN 54-10:2002/A1:2005 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

10: Flame detectors - Point detectors 

C 304 

96/98/EC 

(2006-12-13) 

EN 54-11:2001 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

11: Manual call points 

C 304 

96/98/EC 

(2006-12-13) 

EN 

66 

   EN 

 
 
 
 
EN 54-11:2001/A1:2005 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

11: Manual call points 

C 304 

96/98/EC 

(2006-12-13) 

EN 54-12:2002 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

12: Smoke detectors - Line detectors using 

an optical light beam 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08), 

C 165 

(2003-07-16) 

EN 54-13:2005 

Fire detection and fire alarm systems - Part 

No 

89/106/EEC 

13: Compatibility assessment of system 

components 

EN 54-16:2008 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

16: Voice alarm control and indicating 

equipment 

C 321 

(2008-12-16) 

EN 54-17:2005 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

17: Short-circuit isolators 

C 304 

(2006-12-13) 

EN 54-17:2005/AC:2007 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

17: Short-circuit isolators 

C 321 

(2008-12-16) 

EN 54-18:2005 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

EN 

67 

   EN 

 
 
 
 
 
 
18: Input/output devices 

C 304 

(2006-12-13) 

EN 54-18:2005/AC:2007 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

18: Input/output devices 

C 290 

(2007-12-04) 

EN 54-2:1997 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

2: Control and indicating equipment 

C 290 

96/98/EC 

(2007-12-04) 

EN 54-2:1997/A1:2006 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

2: Control and indicating equipment 

C 290 

96/98/EC 

(2007-12-04) 

EN 54-2:1997/AC:1999 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

2: Control and indicating equipment 

C 290 

96/98/EC 

(2007-12-04) 

EN 54-20:2006 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

20: Aspirating smoke detectors 

C 304 

(2006-12-13) 

EN 54-20:2006/AC:2008 

Fire detection and fire alarm systems - Part 

Expected 

89/106/EEC 

20: Aspirating smoke detectors 

EN 54-21:2006 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

21: Alarm transmission and fault warning 

routing equipment 

C 304 

(2006-12-13) 

EN 54-24:2008 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

EN 

68 

   EN 

 
 
 
24: Components of voice alarm systems - 

Loudspeakers 

C 321 

(2008-12-16) 

EN 54-25:2008 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC 

25: Components using radio links 

C 321 

(2008-12-16) 

EN 54-3:2001 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

3: Fire alarm devices - Sounders 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08) 

EN 54-3:2001/A1:2002 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

3: Fire alarm devices - Sounders 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08), 

C 320 

(2002-12-20) 

EN 54-3:2001/A2:2006 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

3: Fire alarm devices - Sounders 

C 304 

96/98/EC 

(2006-12-13) 

EN 54-4:1997 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

4: Power supply equipment 

C 319 

96/98/EC 

EN 

69 

   EN 

 
 
 
 
 
 
 
 
 
(2005-12-14), 

C 139 

(2005-06-08) 

EN 54-4:1997/A1:2002 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

4: Power supply equipment 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08), 

C 165 

(2003-07-16) 

EN 54-4:1997/A2:2006 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

4: Power supply equipment 

C 304 

96/98/EC 

(2006-12-13) 

EN 54-4:1997/AC:1999 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

4: Power supply equipment 

C 139 

96/98/EC 

(2005-06-08) 

EN 54-5:2000 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

5: Heat detectors - Point detectors 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08) 

EN 54-5:2000/A1:2002 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

EN 

70 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
5: Heat detectors - Point detectors 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08), 

C 320 

(2002-12-20) 

EN 54-7:2000 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

7: Smoke detectors - Point detectors using 

scattered light, transmitted light or 

ionization 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08) 

EN 54-7:2000/A1:2002 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

7: Smoke detectors - Point detectors using 

scattered light, transmitted light or 

ionization 

C 319 

96/98/EC 

(2005-12-14), 

C 139 

(2005-06-08), 

C 320 

(2002-12-20) 

EN 54-7:2000/A2:2006 

Fire detection and fire alarm systems - Part 

Cited in OJ 

89/106/EEC,

7: Smoke detectors - Point detectors using 

scattered light, transmitted light or 

C 304 

96/98/EC 

ionization 

(2006-12-13) 

Table 2 - Fire detection and fire alarm systems – harmonised European standards under 
development 

EN 

71 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Project reference 

Title 

Directive 

prEN 54-23 

Fire detection and fire alarm systems - 

Part  23:  Fire  alarm  devices  -  Visual 

alarms 

89/106/EEC 

prEN 54-22 

Fire  detection  and  fire  alarm  system  - 

Part  22:  Resettable  line  type  heat 

detectors 

89/106/EEC 

prEN 54-1 

Fire detection and fire alarm systems - 

Part 1: Introduction 

89/106/EEC 

prEN 54-26 

Fire detection and fire alarm systems - 

Part  26:  Point  fire  detectors  using 

carbon monoxide sensors 

89/106/EEC 

Current 

status 

Expected 

approval 

Under 

Approval 

2008-10 

Under 

Approval 

2008-11 

Under 

Approval 

Under 

Approval 

2011-05 

2009-10 

prEN 54-27 

Fire detection and fire alarm systems - 

Part 27: Duct smoke detectors 

Under 

Approval 

2010-04 

89/106/EEC 

prEN 54-12 rev 

Fire detection and alarm systems - Part 

Under 

2011-01 

12:  Line  type  smoke  detectors  using a 

Development 

transmitted optical beam 

89/106/EEC 

prCEN/TS 54-14 rev  Fire detection and fire alarm systems - 

Under 

2009-10 

Guidelines 

for  planning,  design, 

Development 

installation,  commissioning,  use  and 

maintenance 

EN 14604:2005/prA1  Smoke alarm devices 

Under 

2010-01 

Development 

89/106/EEC 

prEN 54-5 rev 

Fire detection and fire alarm systems - 

Under 

2011-04 

Part 5: Heat detectors - Point detectors 

Development 

89/106/EEC 

prEN 54-7 rev 

Fire detection and fire alarm systems -    

Under 

2011-04 

EN 

72 

   EN 

  
  
  
  
  
  
  
  
  
Part  7:  Smoke  detectors  -  Point 

detectors 

using 

scattered 

light, 

89/106/EEC 

Development 

transmitted light or ionization 

prEN 54-11 rev 

Fire detection and fire alarm systems - 

Part 11: Manual call points 

89/106/EEC 

prEN 54-3 

Fire detection and fire alarm systems - 

Part 3: Fire alarm devices - Sounders 

Under 

Approval 

Under 

Approval 

2009-06 

2010-11 

prEN 54-10 

Fire detection and fire alarm systems - 

Under 

2011-08 

Part  10:  Flame  detectors  -  Point 

Development 

detectors 

89/106/EEC 

prEN 54-2 rev 

Fire detection and fire alarm systems - 

Under 

2010-10 

Part  2:  Control 

and 

indicating 

Development 

equipment 

89/106/EEC 

prEN 54-30 

Fire detection and fire alarm systems - 

Part  30:  Multi-sensor  fire  detectors  - 

Point detectors using a combination of 

89/106/EEC 

carbon monoxide and heat sensors 

Under 

Approval 

2011-11 

EN 

73 

   EN 

  
  
  
  
  
Table 3 – Fixed firefighting systems – Harmonised European standards already published 

Standard reference 

Title 

Citation 

in 

Directive 

OJ 

CEN/TR 12101-4:2006 

Smoke  and  heat  control  systems  -  Part  4: 

No 

89/106/EEC 

Installed  SHEVS  systems  for  smoke  and 

heat ventilation 

CEN/TR 12101-4:2009 

Smoke  and  heat  control  systems  -  Part  4: 

No 

Installed  SHEVS  systems  for  smoke  and 

heat ventilation 

CEN/TR 12101-5:2005 

Smoke  and  heat  control  systems  -  Part  5: 

No 

Guidelines  on  functional  recommendations 

and calculation methods for smoke and heat 

exhaust ventilation systems 

CEN/TR 15276-1:2009 

Fixed  firefighting  systems  -  Condensed 

No 

aerosol  extinguishing  systems  -  Part  1: 

Requirements 

and 

test  methods 

for 

components 

CEN/TR 15276-2:2009 

Fixed  firefighting  systems  -  Condensed 

No 

aerosol  extinguishing  systems  -  Part  2: 

Design, installation and maintenance 

CEN/TS 14816:2008 

Fixed  firefighting  systems  -  Water  spray 

No 

systems 

-  Design, 

installation 

and 

maintenance 

CEN/TS 14972:2008 

Fixed  firefighting  systems  -  Watermist 

No 

systems - Design and installation 

CEN/TS 15176:2005 

Evaluation 

of 

conformity 

for 

fixed 

No 

firefighting systems standards 

- 

- 

- 

- 

- 

- 

- 

EN 12094-1:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  1: 

Requirements and test methods for electrical 

automatic control and delay devices 

C 319 

(2005-12-

EN 

74 

   EN 

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12094-10:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing  systems 

-  Part  10: 

Requirements and test methods for pressure 

gauges and pressure switches 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12094-11:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing  systems 

-  Part  11: 

Requirements 

and 

test  methods 

for 

mechanical weighing devices 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 

75 

   EN 

EN 12094-12:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing  systems 

-  Part  12: 

Requirements 

and 

test  methods 

for 

pneumatic alarm devices 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12094-13:2001 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing  systems 

-  Part  13: 

Requirements  and  test  methods  for  check 

valves and non-return valves 

C 319 

(2005-12-

14), 

C 139 

(2005-06-

08), 

C 202 

(2001-07-18) 

EN 12094-13:2001/AC:2002  Fixed firefighting systems - Components for 

No 

- 

gas  extinguishing  systems 

-  Part  13: 

Requirements  and  test  methods  for  check 

valves and non-return valves 

EN 12094-16:2003 

Fixed firefighting systems - Components for 

No 

89/106/EEC 

gas  extinguishing  systems 

-  Part  16: 

Requirements 

and 

test  methods 

for 

odorizing  devices  for  CO2  low  pressure 

systems 

EN 

76 

   EN 

EN 12094-2:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  2: 

Requirements  and  test  methods  for  non-

electrical  automatic  control  and  delay 

devices 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12094-3:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  3: 

Requirements  and  test  methods  for  manual 

triggering and stop devices 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12094-4:2004 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  4: 

Requirements and test methods for container 

valve assemblies and their actuators 

C 319 

(2005-12-

14), 

C 263 

(2004-10-

26), 

EN 

77 

   EN 

C 139 

(2005-06-08) 

EN 12094-5:2006 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  5: 

Requirements and test methods for high and 

C 304 

low  pressure  selector  valves  and 

their 

actuators 

(2006-12-13) 

EN 12094-6:2006 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  6: 

Requirements  and  test  methods  for  non-

C 304 

electrical disable devices 

(2006-12-13) 

EN 12094-7:2000 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  7: 

Requirements  and  test  methods  for  nozzles 

for CO2 systems 

C 319 

(2005-12-

14), 

C 139 

(2005-06-

08), 

C 202 

(2001-07-18) 

EN 12094-7:2000/A1:2005 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  7: 

Requirements  and  test  methods  for  nozzles 

for CO2 systems 

C 319 

(2005-12-

14), 

C 139 

(2005-06-08) 

EN 

78 

   EN 

EN 12094-8:2006 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  8: 

Requirements 

and 

test  methods 

for 

C 304 

connectors 

(2006-12-13) 

EN 12094-9:2003 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

gas  extinguishing 

systems 

-  Part  9: 

Requirements  and  test  methods  for  special 

fire detectors 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12101-1:2005 

Smoke  and  heat  control  systems  -  Part  1: 

Cited in OJ 

89/106/EEC 

Specification for smoke barriers 

C 304 

(2006-12-13) 

EN 12101-1:2005/A1:2006 

Smoke  and  heat  control  systems  -  Part  1: 

Cited in OJ 

89/106/EEC 

Specification for smoke barriers 

C 304 

(2006-12-13) 

EN 12101-10:2005 

Smoke  and  heat  control  systems  -  Part  10: 

Cited in OJ 

89/106/EEC 

Power supplies 

C 304 

(2006-12-13) 

EN 12101-10:2005/AC:2007  Smoke  and  heat  control  systems  -  Part  10: 

Cited in OJ 

89/106/EEC 

Power supplies 

C 290 

EN 

79 

   EN 

EN 12101-2:2003 

Smoke  and  heat  control  systems  -  Part  2: 

Cited in OJ 

89/106/EEC 

(2007-12-04) 

Specification  for  natural  smoke  and  heat 

exhaust ventilators 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12101-3:2002 

Smoke  and  heat  control  systems  -  Part  3: 

Cited in OJ 

89/106/EEC 

Specification  for  powered  smoke  and  heat 

exhaust ventilators 

C 319 

(2005-12-

14), 

C 67 

(2004-03-

17), 

C 139 

(2005-06-08) 

EN 12101-3:2002/AC:2005 

Smoke  and  heat  control  systems  -  Part  3: 

Cited in OJ 

89/106/EEC 

Specification  for  powered  smoke  and  heat 

exhaust ventilators 

C 304 

(2006-12-13) 

EN 12101-6:2005 

Smoke  and  heat  control  systems  -  Part  6: 

Cited in OJ 

89/106/EEC 

Specification 

for 

pressure 

differential 

C 319 

EN 

80 

   EN 

systems - Kits 

(2005-12-14) 

EN 12101-6:2005/AC:2006 

Smoke  and  heat  control  systems  -  Part  6: 

Cited in OJ 

89/106/EEC 

Specification 

for 

pressure 

differential 

systems - Kits 

C 304 

(2006-12-13) 

EN 12259-1:1999 + A1:2001  Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  1: 

Sprinklers 

C 319 

(2005-12-

14), 

C 40 

(2002-02-

14), 

C 139 

(2005-06-08) 

EN 

12259-1:1999 

+ 

Fixed  firefighting  systems  components  for 

Cited in OJ 

89/106/EEC 

A1:2001/A2:2004 

sprinkler  and  waterspray  systems  -  Part  1: 

Sprinklers 

C 319 

(2005-12-

14), 

C 263 

(2004-10-

26), 

C 139 

(2005-06-08) 

EN 

12259-1:1999 

+ 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

A1:2001/A3:2006 

sprinkler  and  water  spray  systems  -  Part  1: 

C 304 

EN 

81 

   EN 

Sprinklers 

(2006-12-13) 

EN 12259-2:1999 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  2: 

Wet alarm valve assemblies 

C 139 

(2005-06-08) 

EN 12259-2:1999/A1:2001 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  2: 

Wet alarm valve assemblies 

C 319 

(2005-12-

14), 

C 358 

(2001-12-

15), 

C 139 

(2005-06-

08), 

C 97 

(2004-04-22) 

EN 12259-2:1999/A2:2005 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  2: 

Wet alarm valve assemblies 

C 304 

(2006-12-13) 

EN 12259-2:1999/AC:2002 

Fixed  firefighting  sytems  -  Components  for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  2: 

Wet alarm valve assemblies 

C 139 

(2005-06-08) 

EN 

82 

   EN 

EN 12259-3:2000 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

automatic sprinkler and water spray systems 

- Part 3: Dry alarm valve assemblies 

C 319 

(2005-12-

14), 

C 139 

(2005-06-08) 

EN 12259-3:2000/A1:2001 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  3: 

Dry alarm valve assemblies 

C 319 

(2005-12-

14), 

C 358 

(2001-12-

15), 

C 139 

(2005-06-

08), 

C 97 

(2004-04-22) 

EN 12259-3:2000/A2:2005 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  3: 

Dry alarm valve assemblies 

C 304 

(2006-12-13) 

EN 12259-4:2000 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  4: 

Water motor alarms 

C 319 

(2005-12-

EN 

83 

   EN 

14), 

C 139 

(2005-06-08) 

EN 12259-4:2000/A1:2001 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  4: 

Water motor alarms 

C 319 

(2005-12-

14), 

C 358 

(2001-12-

15), 

C 139 

(2005-06-08) 

EN 12259-5:2002 

Fixed firefighting systems - Components for 

Cited in OJ 

89/106/EEC 

sprinkler  and  water  spray  systems  -  Part  5: 

Water flow detectors 

C 319 

(2005-12-

14), 

C 139 

(2005-06-

08), 

C 47 

(2003-02-27) 

EN 12416-1:2001+A2:2007 

Fixed firefighting systems - Powder systems 

No 

- 

- Part 1: Requirements and test methods for 

components 

EN 

84 

   EN 

EN 12416-2:2001+A1:2007 

Fixed firefighting systems - Powder systems 

No 

- 

-  Part  2:  Design, 

construction 

and 

maintenance 

EN 12845:2004 

Fixed  firefighting  systems  -  Automatic 

No 

89/106/EEC 

sprinkler  systems  -  Design,  installation  and 

maintenance 

EN 13565-1:2003+A1:2007 

Fixed firefighting systems - Foam systems - 

No 

89/106/EEC 

Part  1:  Requirements  and  test  methods  for 

components 

EN 15004-1:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

89/106/EEC 

extinguishing  systems  -  Part  1:  Design, 

installation  and  maintenance  (ISO  14520-

1:2006, modified) 

EN 15004-10:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

- 

extinguishing  systems  -  Part  10:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for 

IG-541 

extinguishant 

(ISO 

14520-15:2005, 

modified) 

EN 15004-2:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

extinguishing  systems  -  Part  2:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for  FK-5-1-12 

extinguishant (ISO 14520-5:2006, modified)

EN 15004-3:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

extinguishing  systems  -  Part  3:  Physical 

properties  and  system  design  of  gas 

extinguishing  systems  for  HCFC  Blend  A 

extinguishant (ISO 14520-6:2006, modified)

EN 15004-4:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

extinguishing  systems  -  Part  4:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for  HFC  125 

- 

- 

- 

EN 

85 

   EN 

extinguishant (ISO 14520-8:2006, modified)

EN 15004-5:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

extinguishing  systems  -  Part  5:  Physical 

properties  and  system  design  of  gas 

extinguishing  systems 

for  HFC  227ea 

extinguishant (ISO 14520-9:2006, modified)

EN 15004-6:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

- 

- 

extinguishing  systems  -  Part  6:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for  HFC 

23 

extinguishant 

(ISO 

14520-10:2005, 

modified) 

EN 15004-7:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

- 

extinguishing  systems  -  Part  7:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for 

IG-01 

extinguishant 

(ISO 

14520-12:2005, 

modified) 

EN 15004-8:2008 

Fixed 

firefighting 

system 

-  Gas 

No 

- 

extinguishing  systems  -  Part  8:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for 

IG-100 

extinguishant 

(ISO 

14520-13:2005, 

modified) 

EN 15004-9:2008 

Fixed 

firefighting 

systems 

-  Gas 

No 

- 

extinguishing  systems  -  Part  9:  Physical 

properties  and  system  design  of  gas 

extinguishing 

systems 

for 

IG-55 

extinguishant 

(ISO 

14520-14:2005, 

modified) 

EN 

86 

   EN 

EN 1568-1:2008 

Fire 

extinguishing  media 

- 

Foam 

No 

89/106/EEC 

concentrates  -  Part  1:  Specification  for 

medium  expansion  foam  concentrates  for 

surface  application 

to  water-immiscible 

liquids 

EN 1568-2:2008 

Fire 

extinguishing  media 

- 

Foam 

No 

89/106/EEC 

concentrates - Part 2: Specification for high 

expansion  foam  concentrates  for  surface 

application to water-immiscible liquids 

EN 1568-3:2008 

Fire 

extinguishing  media 

- 

Foam 

No 

89/106/EEC 

concentrates  -  Part  3:  Specification  for  low 

expansion  foam  concentrates  for  surface 

application to water-immiscible liquids 

EN 1568-4:2008 

Fire 

extinguishing  media 

- 

Foam 

No 

89/106/EEC 

concentrates  -  Part  4:  Specification  for  low 

expansion  foam  concentrates  for  surface 

application to water-miscible liquids 

EN 25923:1993 

Fire  protection  -  Fire  extinguishing  media  - 

No 

89/106/EEC 

Carbon dioxide (ISO 5923:1989) 

EN 27201-1:1994 

Fire  protection  -  Fire  extinguishing  media  - 

No 

89/106/EEC 

Halogenated  hydrocarbons 

-  Part  1: 

Specifications  for  halon  1211  and  halon 

1301 (ISO 7201-1:1989) 

EN 27201-2:1994 

Fire  protection  -  Fire  extinguishing  media  - 

No 

89/106/EEC 

Halogenated hydrocarbons - Part 2: Code of 

practice  for  safe  handling  and 

transfer 

procedures (ISO 7201-2:1991) 

EN 615:1994 

Fire  protection  -  Fire  extinguishing  media  - 

No 

89/106/EEC 

Specification  for  powders  (other  than  class 

D powders) 

EN 615:1994/A1:2001 

Fire  protection  -  Fire  extinguishing  media  - 

No 

89/106/EEC 

Specifications for powders (other than class 

EN 

87 

   EN 

D powders) 

EN 615:1994/AC:2006 

Fire  protection  -  Fire  extinguishing  media  - 

No 

89/106/EEC 

Specifications for powders (other than class 

D powders) 

EN 671-1:2001 

Fixed firefighting systems - Hose systems - 

Cited in OJ 

89/106/EEC, 

Part 1: Hose reels with semi-rigid hose 

C 319 

96/98/EC 

(2005-12-

14), 

C 139 

(2005-06-

08), 

C 202 

(2001-07-18) 

EN 671-1:2001/AC:2002 

Fixed firefighting systems - Hose systems - 

Cited in OJ 

89/106/EEC, 

Part 1: Hose reels with semi-rigid hose 

C 304 

96/98/EC 

(2006-12-13) 

EN 671-2:2001 

Fixed firefighting systems - Hose systems - 

Cited in OJ 

89/106/EEC, 

Part 2: Hose systems with lay-flat hose 

C 319 

96/98/EC 

(2005-12-

14), 

C 139 

(2005-06-

08), 

C 202 

EN 

88 

   EN 

  
  
  
  
  
  
  
  
  
  
EN 671-2:2001/A1:2004 

Fixed firefighting systems - Hose systems - 

Cited in OJ 

89/106/EEC 

Part 2: Hose systems with lay-flat hose 

(2001-07-18) 

C 304 

(2006-12-13) 

EN 671-3:2000 

Fixed firefighting systems - Hose systems - 

No 

89/106/EEC 

Part 3: Maintenance of hose reels with semi-

rigid  hose  and  hose  systems  with  lay-flat 

hose 

EN 671-3:2000/AC:2000 

Fixed firefighting systems - Hose systems - 

No 

89/106/EEC 

Part 3: Maintenance of hose reels with semi-

rigid  hose  and  hose  systems  with  lay-flat 

hose 

EN 

89 

   EN 

  
Table 4 – Fixed firefighting systems – Harmonised European standards under development 

Project reference  Title 

Directive 

Status 

prEN 13565-2 

Fixed  firefighting  systems  -  Foam  systems  -  Part 

2: Design, construction and maintenance 

Under 

Approval 

Expected 

approval 

2007-07 

prEN 12259-8 

Fire  protection  -  Components  for  automatic 

Under 

2002-12 

sprinkler systems - Part 8: Pressure switches 

Development 

prEN 671-1 

Fixed firefighting sytems - Hose systems - Part 1: 

Hose reels with semi-rigid hose 

prEN 671-2 

Fixed firefighting sytems - Hose systems - Part 2: 

Hose system with lay-flat hose 

89/106/EEC 

89/106/EEC 

89/106/EEC 

EN 671-3:2009 

Fixed firefighting systems - Hose systems - Part 3: 

Maintenance  of  hose  reels  with  semi-rigid  hose 

and hose systems with lay-flat hose 

89/106/EEC 

prEN 12094-7 

Fixed  firefighting  systems  -  Components  for  gas 

extinguishing  systems  - Part  7:  Requirements  and 

test methods for nozzles 

89/106/EEC 

EN 

Fixed  firefighting  systems  -  Automatic  sprinkler 

12845:2004/prA1 

systems - Design, installation and maintenance 

EN 

Fixed  firefighting  systems  -  Automatic  sprinkler 

12845:2004/prA2 

systems - Design, installation and maintenance 

prEN 615 

Fire  protection  -  Fire  extinguishing  media  - 

Specifications  for  powders  (other  than  class  D 

powders) 

Under 

Approval 

Under 

Approval 

Under 

Approval 

2007-10 

2007-10 

2009-03 

Under 

Approval 

2007-10 

Under 

Approval 

Under 

Approval 

Under 

Approval 

2008-04 

2008-04 

2009-05 

prEN 12259-6 

Fixed  firefighting  systems  -  Sprinkler  and  water 

Under 

2011-02 

spray systems - Part 6: Pipe couplings 

Development 

prEN 12259-12 

Fixed  firefighting  systems  -  Sprinkler  and  water    

Under 

2011-02 

EN 

90 

   EN 

  
  
  
  
  
  
  
  
  
  
spray systems - Part 12: Sprinkler pumps 

89/106/EEC 

Development 

EN 

Automatic  sprinkler  systems 

-  Design  and 

Under 

2011-11 

12845:2004/prA3 

installation 

prEN 12101-7 

Smoke  and  heat  control  systems  -  Part  7:  Smoke 

duct sections 

prEN 12101-8 

Smoke  and  heat  control  systems  -  Part  8:  Smoke 

control dampers 

Development 

Under 

Approval 

Under 

Approval 

2010-03 

2010-03 

89/106/EEC 

89/106/EEC 

EN 

12101-

Smoke  and  heat  control  systems  -  Part  1: 

Under 

2010-10 

1:2005/prA2 

Specification for smoke barriers 

Development 

89/106/EEC 

prEN 12101-2 rev 

Smoke  and  heat  control  systems  -  Part  2: 

Under 

2010-10 

Specification  for  natural  smoke  and  heat  exhaust 

Development 

ventilators 

prEN 12101-9 

Smoke and heat control systems - Part 9: Control 

panels 

EN 

12101-

Smoke and heat control systems - Part 10: Power 

10:2005/prA1 

supplies 

89/106/EEC 

89/106/EEC 

89/106/EEC 

Under 

Approval 

Under 

Approval 

2010-10 

2010-10 

prEN 12259-9 

Fixed  firefighting  systems  -  Components  for 

Under 

2011-11 

sprinkler and water spray systems - Part 9: Deluge 

Development 

valve assemblies 

89/106/EEC 

EN 

91 

   EN