COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On the functioning of Commission Regulation (EC) No 267/2010 on the application of Article 101(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector
Date: 2016-03-17
Institutions: Directorate-General for Competition, European Commission
Subjects: control of restrictive practices, exchange of information, insurance company, inter-company agreement, reinsurance, restriction on competition, restrictive trade practice

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 17.3.2016  SWD(2016) 62 final   COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL  On the functioning of Commission Regulation (EC) No 267/2010 on the application of Article 101(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector  {COM(2016) 153 final} {SWD(2016) 63 final}  
 
 
TABLE OF CONTENTS 

EXECUTIVE SUMMARY………………………………………………………….…...4 

1  INTRODUCTION ........................................................................................................ 6 

1.1  The Review of the Insurance Block Exemption Regulation ............................ 6 
1.2  Purpose and Scope of the Report and the Staff Working Document ............. 7 

2  BACKGROUND TO THE INITIATIVE ................................................................... 7 

2.1  Enforcement of EU competition rules ............................................................... 7 
2.2  Block Exemption Regulations ............................................................................ 8 
2.3  The Insurance Block Exemption Regulation .................................................... 9 
2.4  Effects of a Block Exemption Regulation.......................................................... 9 

3  THE ASSESSMENT CRITERIA AND QUESTIONS ........................................... 10 

4  METHOD .................................................................................................................... 12 

4.1  Study  on  co(re)insurance  pools  and  on  ad-hoc  co(re)insurance 

agreements on the subscription market and workshop ................................. 12 
4.2  Consultation of NCAs ....................................................................................... 12 
4.3  Roadmap and Inception Impact Assessment .................................................. 13 
4.4  Consultation of stakeholders ............................................................................ 13 
4.4.1  Public consultation ................................................................................. 13 
4.4.2  Targeted  questionnaires,  bilateral  meetings  and 

telephone 

conferences following the Public consultation .................................... 14 
4.4.3  Data and Information gaps ................................................................... 14 

4.4.3.1  Study 

on 

co(re)insurance 

pools 

and 

on 

ad-hoc 

co(re)insurance agreements on the subscription market .......... 14 
4.4.3.2  Consultation of NCAs ................................................................ 15 
4.4.3.3  Consultation of Stakeholders ..................................................... 15 
4.4.4  Further steps .......................................................................................... 16 

4.4.4.1  Studies  on  issues  pertaining  to  the  insurance  production 

process with regard to the application of the IBER .................. 16 
4.4.4.2  Stakeholder discussion .............................................................. 17 

5  STATE OF PLAY ....................................................................................................... 17 

5.1  Public consultation ............................................................................................ 17 
5.1.1  Market developments ............................................................................ 17 
5.1.2  Application of the IBER in practice ..................................................... 18 
5.1.3  Policy options ......................................................................................... 19 
5.1.4  Impact of the policy options .................................................................. 19 
5.2  Targeted questionnaires to Stakeholders ........................................................ 20 
5.2.1  Pools….  ................................................................................................... 20 

2 

 
 
5.2.1.1  Relevant market ......................................................................... 21 
5.2.1.2  Impact of the IBER .................................................................... 21 
5.2.2  Customers ............................................................................................... 22 
5.2.2.1  Provision of insurance cover ..................................................... 22 
5.2.2.2  Impacts of the IBER and outlook ............................................... 22 
5.2.3  Brokers and Intermediaries' federations ............................................. 22 
5.2.3.1  Insurance Brokerage ................................................................. 23 
5.2.3.2  Intermediaries' federations ........................................................ 23 
5.2.3.3  Impact of IBER .......................................................................... 23 
5.2.3.4  Outlook ...................................................................................... 23 
5.2.4  Mutuals ................................................................................................... 23 
5.2.5  NCA input to the IBER Review ............................................................ 23 
5.2.5.1  General observations ................................................................. 23 
5.2.5.2  Decisional practice and case law .............................................. 24 

5.2.5.2.1 

GERMANY ............................................................................................. 24 

5.2.5.2.2 

LITHUANIA ........................................................................................... 25 

5.2.5.2.3 

NETHERLANDS .................................................................................... 26 

5.2.5.2.4 

SPAIN ...................................................................................................... 27 

5.2.5.3  Conclusions ............................................................................... 28 

6  ASSESSMENT ............................................................................................................ 28 

6.1  Enhanced cooperation need ............................................................................. 28 
6.1.1  Exemption for Compilations, Tables and Studies .............................. 28 
6.1.2  Common coverage of certain types of risks (Pools) ............................ 30 
6.1.3  Conclusion .............................................................................................. 30 
6.2  Necessity of a BER ............................................................................................ 31 
6.2.1  Exemption for Compilations, Tables and Studies .............................. 31 
6.2.2  Common coverage of certain types of risks (Pools) ............................ 32 

7  CONCLUSIONS ......................................................................................................... 34 

ANNEX I:  QUESTIONNAIRE TO NATIONAL COMPETITION AUTHORITIES 

ANNEX II:  PUBLIC CONSULTATION QUESTIONNAIRE 

ANNEX III:  TARGETED QUESTIONNAIRES 

Disclaimer:  
This document is a European Commission staff working document for information purposes. It does not prejudge 
the  final  nature  of  any  act  or  the  content  of  any  delegated  or  implementing  acts  that may  be  prepared  by  the 
Commission. It does not represent an official position of the Commission on the issues discussed.  

3 

 
 
 
EXECUTIVE SUMMARY 

According to Article 1(2) of Council Regulation1 1/2003 governing the implementation of the 
EU  competition  rules  as  set  out  in  the  Treaty  on  the  Functioning  of  the  European  Union 
(hereafter TFEU), agreements2 caught by Article 101(1) TFEU which satisfy the conditions of 
Article 101(3) TFEU shall not be prohibited, no prior decision to that effect being required. In 
order  to  comply  with  the  terms  of  this  directly  applicable  exemption  regime,  undertakings 
must carry out a self-assessment of the effects of their agreements. 

There are agreements between undertakings active in the insurance sector that simultaneously 
ensure the proper functioning of this sector and promote consumer interests. Such agreements 
may involve a restriction of competition, but are still regarded as compatible with the Internal 
Market if they promote technical and economic progress and/or improve the production and 
distribution  of  goods  and  services.  At  the  same  time,  as  necessary  conditions,  these 
agreements  must  allow  consumers  a  fair  share  of  the  resulting  benefits,  must  not  eliminate 
competition in the concerned markets, and any restriction of competition caused by them must 
be limited to what is necessary. In the presence of the above-mentioned beneficial effects, the 
agreements are admissible. 

Regulation (EC) No 1534/91 on the application of Article 101(3) TFEU to certain categories 
of  agreements,  decisions  and  concerted  practices  in  the  insurance  sector3  enables  the 
Commission to declare, by way of Regulation, that the provisions of Article 101(1) TFEU are 
inapplicable  to  certain  categories  of  agreements.  The  relevant  Commission's  regulation 
exempts  insurance  undertakings  from  making  an  effects-based  self-assessment  because  the 
overall net benefits of the cooperation can be presupposed. Based on this Regulation, in 2010, 
the Commission adopted the Insurance Block Exemption Regulation4 (hereafter IBER) which 
exempts,  subject  to  certain  conditions:  (1)  agreements  between  (re)insurers  to  exchange 
information  in  the  form  of  joint  compilations,  tables  and  studies;  and  (2)  the  common 
coverage  of  certain  types  of  risks  by  means  of  so-called  co(re)insurance  pools5.  The  IBER 
exemptions  will  lapse  on  31  March  2017,  if  the  Commission  does  not  decide  to  prolong  or 
amend them. The exemption for information exchange allows (re)insurers to cooperate in the 
compilation  and  dissemination  of  statistical  data  in  order  to  predict  and  price  risks  more 
accurately.  The  exemption  for  co(re)insurance  pools  allows  pro-competitive  cooperation 
between (re)insurance undertakings that facilitates market entry and appropriate risk cover.  

1   Council  Regulation 1/2003/EC on  the  implementation of the  rules of  competition  laid down  in  Articles  81 

and 82 of the Treaty (OJ L 1/1, 4.1.2003). 

2   Wherever  the  term  "agreements"  is  used  in  this  document,  it  shall  mean  agreements,  decisions  (by 

associations of undertakings) and concerted practices. 

3   Council Regulation (EC) 1534/91 of 31 May 1991 on the application of Article 85(3) of the Treaty to certain 
categories of agreements, decisions and concerted practices in the insurance sector (OJ L 143, 7.6.1991, p. 1). 
4   Commission Regulation (EU) 267/2010 on the application of Article 101(3) of the Treaty on the Functioning 
of the European Union to certain categories of agreements, decisions and concerted practices in the insurance 
sector (OJ L 83, 30.3.2010, p.1). 

5   Commission Regulation (EU) 267/2010 (IBER), Article 5: "'[C]o-reinsurance pools’ means groups set up by 
insurance undertakings either directly or through broker or authorised agents, possibly with the assistance of 
one  or  more  reinsurance  undertakings,  with  the  exception  of  ad-hoc  co-reinsurance  agreements  on  the 
subscription market, whereby a certain part of a given risk is covered by a lead insurer and the remaining part 
of this risk is covered by follow insurers who are then invited to cover that remainder in order to: (a) reinsure 
mutually all or part of their liabilities in respect of a specified risk category; (b) incidentally accept, in the 
name and on behalf of all the participants, the reinsurance of the same category of risks." 

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The decision regarding the future of the IBER is subject to an Impact Assessment. Since early 
2014 the Commission has been gathering information on the use and functioning of the IBER 
exemptions.  To  date,  this  has  included:  a  study  on  the  different  forms  of  pools  and  ad-hoc 
co(re)insurance  arrangements  available  in  the  EU;  the  consultation  of  the  National 
Competition  Authorities;  a  public  consultation  that  ran  from  August  to  November  2014, 
complemented  with  targeted  questionnaires  and  meetings  with  certain  categories  of 
stakeholders; and other own-initiative research carried out by the Commission. 

As  an  intermediary  step,  the  Commission  is  required  to  submit  a  Report  on  the  functioning 
and future of the IBER no later than six years from its entry into force. Based on the in-depth 
assessment  of  the  evidence  gathered  so  far,  the  Commission  has  arrived  at  the  following 
preliminary views.  

Although  there  are  indications  that  the  insurance  sector  may  have  an  enhanced  need  for 
collaboration  (compared  to  other  economic  sectors)  in  relation  to  the  compilation  and 
distribution of joint calculations, tables and studies, and the co(re)insurance of certain specific 
types of risks, the Commission finds at this stage that the strict conditions for the creation of a 
sector-specific Block Exemption Regulation (hereafter BER) with respect to these categories 
of agreements seem no longer to be met. 

At this stage it seems that the market conditions of the insurance industry no longer appear to 
necessitate the existence of an IBER for the compilation and distribution of joint calculations, 
tables  and  studies.  The  Guidelines  on  the  application  of  Article  101  TFEU  to  horizontal 
cooperation  agreements  (hereafter  Horizontal  Guidelines)  already  offer  guidance  for  the 
purpose  of  self-assessing  the  admissibility  of  this  type  of  cooperation.  Likewise,  the 
Commission  can  provide,  if  necessary,  additional  legal  certainty  and  guidance  to  the 
insurance industry, which is an alternative and far more flexible instrument that can be more 
easily adapted to changing circumstances. 

With respect to co(re)insurance pools, at this stage it seems that the renewal of the IBER is 
not justified because of its limited use and relevance, the potential risk of misapplication and, 
overall, the fact that it is not longer possible to presume with sufficient certainty that the type 
of cooperation covered by the exemption satisfies all the conditions necessary for a finding of 
compatibility  with  the  Internal  Market.  This  is  especially  so  when  considering  that  the 
insurance market currently provides a heterogeneous and less restrictive set of alternatives to 
pools for the purpose of co(re)insuring risks. 

Thus, at this stage a case-by-case self-assessment of the arrangements for the setting-up and 
the functioning of each individual co(re)insurance pool, under the guidance provided by the 
Commission by means of Horizontal Guidelines, which is the standard in other sectors, seems 
to  be  the  best  way  to  ensure  that  co(re)insurance  pools  produce  net  positive  effects  for 
consumers and competition within the meaning of Article 101(3) TFEU. 

In  the  event  that  the  IBER  exemptions  are  not  renewed,  the  Commission  might  decide  to 
adopt  guidance  (replacing  the  current  IBER  Communication)  on  the  principles  of  self-
assessment for those agreements that will no longer benefit from a BER. 

Following its publication, the Commission intends to organise a stakeholder discussion on the 
preliminary conclusions of this Report. 

The Commission also intends to publish and discuss with stakeholders, where necessary, the 
conclusions of the two studies on a series of issues pertaining to the functioning of the IBER 
that are currently underway. 

5 

 
 
1 

INTRODUCTION 

1.1  The Review of the Insurance Block Exemption Regulation 
(1)  On 24 March 2010 the Commission adopted Regulation (EU) No 267/20106 exempting 
two  categories  of  agreements  in  the  insurance  sector  (the  Insurance  Block  Exemption 
Regulation, hereafter the IBER). The Regulation is accompanied by a Communication7 
clarifying  the  conditions  of  application  of  the  IBER.  The  IBER  expires  on  31  March 
2017. 

(2)  Pursuant  to  Article  8  of  Council  Regulation  (EEC)  No  1534/918  (hereafter,  the 
Empowering Regulation), the Commission is required to submit to the Council and the 
European Parliament a Report on the functioning and future of an IBER (hereafter the 
Report), including preliminary views on potential changes, no later than 6 years after its 
entry into force. For the IBER, this Report must be submitted by 31 March 2016 at the 
latest. 

(3)  Accordingly, in early 2014 the Commission started the Review of the functioning and 
use  of  the  IBER.  By  means  of  this  Review,  the  Commission  intends  to  analyse  how 
competition and consumers in the insurance sector are affected by the IBER. 

(4) 

In  May  2015,  the  European  Commission  adopted  a  new  Better  Regulation  approach 
aimed at more systematic and transparent consulting of stakeholders, improved impact 
assessments and drawing lessons learned from past experience. Given that the work on 
the IBER review started already in early 2014, the process did not follow all the steps 
set  out  in  the  new  Better  Regulation  Guidelines.  However,  the  Review  has  been 
conducted in an open, transparent manner and key elements of retrospective evaluation 
have  been  respected.  Thus,  the  analysis  of  the  enhanced  need  for  cooperation  has 
allowed the Commission to look at the relevance, while the analysis of the need for a 
BER  has  taken  into  account  the  coherence,  efficiency  and  effectiveness  of  such  an 
approach.  

(5)  The Review is subject to an Impact Assessment whereby the Commission will evaluate 
three possible policy options: non-renewal of the IBER, partial renewal (i.e. removing 
only one exemption) or full renewal. Unless it finds sufficient evidence indicating that a 

6  

7  

8  

Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of the 
Treaty  on  the  Functioning  of  the  European  Union  to  certain  categories  of  agreements,  decisions  and 
concerted practices in the insurance sector (OJ L 83, 30.3.2010, p. 1). 

Communication  from  the  Commission  on  the  application  of  Article  101(3)  of  the  Treaty  on  the 
Functioning of the European Union to certain categories of agreements, decisions and concerted practices 
in the insurance sector (OJ C 82/02, 30.03.2010)  

Council Regulation (EEC) No 1534/91 of 31 May 1991 on the application of Article 85 (3) of the Treaty 
to certain categories of agreements, decisions and concerted practices in the insurance sector (OJ L 143, 
31.5.1991, p. 1) 

6 

 
 
                                                      
sector-specific regulation is necessary for the two categories of agreement exempted by 
the  IBER,  the  Commission  will  not  renew  these  exemptions  and  will  therefore  let  the 
IBER lapse. Details of this process are set out in the Inception Impact Assessment9. 

1.2  Purpose and Scope of the Report and the Staff Working Document 

(6)  The  Report  presents  the  preliminary  findings  and  conclusions  of  the  Commission's 

Review.  

(7)  The Report is accompanied by a Staff Working Document (hereafter SWD). The scope 

of the Report and the SWD covers all 28 Member States. 

(8) 

It  is  to  be  noted  that  the  Report  and  the  SWD  confine  themselves  to  presenting  the 
Commission's  preliminary  views  on the  functioning  and  future  of  the  IBER  and  in  no 
way  prejudge  the  final  decision  that  the  Commission  will  take  once  the  Impact 
Assessment process has been completed. The Report is one of the intermediary steps in 
a  comprehensive  consultation  process  to  which  all  stakeholders  were  invited  to 
contribute. 

2 

BACKGROUND TO THE INITIATIVE 

2.1  Enforcement of EU competition rules 

(9)  The basic provisions of the EU competition rules are laid down in Articles 101 and 102 

TFEU. 

(10)  An  effective  competition  policy  is  vital  for  maintaining  the  benefits  of  the  Internal 
Market. Its aim is to make markets function better in order to provide consumers with 
the  best  products  and  services  at  the  best  prices.  The  preservation  of  effective 
competition is essential for market economies, since it enhances business efficiency and 
boosts innovation, helping to deliver better market outcomes in terms of quality, choice, 
cost and prices. 

(11)  The  enforcement  system  of  EU  competition  rules  fundamentally  changed  on  1  May 
2004 with the entry into force of Council Regulation (EC) No 1/2003 of 16 December 
200210 on the implementation of the rules on competition laid down in Articles 101 and 
102  TFEU  (hereafter  Regulation  1/2003).  Regulation  1/2003  introduced  a  new 
procedural framework for the application of EU competition rules, introducing a system 
of decentralised enforcement and parallel competences. This framework allows National 
Competition  Authorities  (hereafter  NCAs)  to  fully  enforce  EU  competition  rules, 
because,  based  on  their  experience,  they  are  well  placed  to  apply  these  rules  to  the 
unique market conditions prevalent within their national territories. 

9 
10  

http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_comp_001_review_iber_en.pdf 

Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 101 and 102 of the Treaty (OJ L 1, 4.1.2003, p. 1).  

7 

 
 
                                                      
(12)  Regulation 1/2003 provides that agreements that satisfy the conditions of Article 101(3) 
TFEU are not prohibited, no notification to the Commission and prior decision to that 
effect  being  required.  Under  the  resulting  enforcement  regime,  undertakings  and 
associations  of  undertakings  must  assess  for  themselves  whether  their  agreements 
satisfy the conditions of Article 101(3) TFEU. 

(13)  In order to meet the conditions of Article 101(3) TFEU, the relevant agreements must 
contribute  to  the  promotion  of  technical  or  economic  progress,  or  to  improving  the 
production  or  distribution  of  goods,  while  allowing  consumers  a  fair  share  of  the 
resulting benefits. Any restrictions of competition caused by such agreements must also 
be limited to what is strictly necessary (principle of proportionality), and not eliminate 
competition in respect of a substantial part of the products or services in question.  

(14)  Consequently, undertakings must independently determine whether their agreements are 
compatible  with  the  Internal  Market.  Only  a  small  minority  of  industries  still  benefit 
from a sector-specific Block Exemption Regulation (hereafter BER). 

2.2  Block Exemption Regulations 

(15)  The Commission may adopt regulations declaring that certain categories of agreements 
are  deemed  to  fulfil  the  conditions  of  Article  101(3)  TFEU.  In  particular,  through  its 
Empowering Regulation, the Council empowered the Commission to adopt regulations 
on  the  application  of  Article  101(3)  TFEU  to  certain  types  of  agreements  between 
undertakings,  decisions  of  associations  or  undertakings  and  concerted  practices 
(hereafter  agreements)  in  the  insurance  sector.  Anti-competitive  agreements  may  be 
considered  exempt  under  Article  101(3)  TFEU  if  they  deliver  efficiency  gains  that 
outweigh the effects of any restrictions. 

(16)  Up to the adoption of Regulation 1/2003, BERs were introduced as a means of reducing 
the  heavy  administrative  burden  caused  by  the  large  number  of  notifications  the 
Commission  received  in  certain  fields.  Regulation  1/2003  replaced  a  centralised 
administrative  ex  ante  notification  regime  with  a  decentralised  ex  post  enforcement 
regime  based  on  self-assessment  of  their  cooperation  agreements  and  commercial 
practices  by  the  relevant  undertakings.  To  guide  this  assessment,  the  Commission  has 
since also adopted a series of general guidance instruments such as the Horizontal and 
Vertical Cooperation Guidelines11 that apply to all sectors. These horizontal guidelines 
deal with many fields that were previously covered by sector-specific instruments.  

(17)  The  insurance  sector  is  only  one  of  three  sectors  (the  other  two  being  maritime  liner 
shipping and motor vehicle distribution) that still benefit from a BER. There have been 
other sectors (such as maritime and air transport) for which the relevant BER was not 
renewed. 

11  

Guidelines on Vertical Restraints (OJ C 130, 19.5.2010) 

8 

 
 
 
                                                      
2.3  The Insurance Block Exemption Regulation 

(18)  The first IBER was adopted in 1992 and was renewed with modifications in 2003 and 
2010.  Based  on  the  Empowering  Regulation,  on  24  March  2010  the  Commission 
adopted the latest IBER exempting two categories of agreements in the insurance sector. 

(19)  The  IBER  exempts,  subject  to  certain  conditions,  agreements  between  (re)insurers  to 
exchange  information  in  the  form  of  joint  compilations,  tables  and  studies,  and  the 
common coverage of certain types of risks by means of so-called co(re)insurance pools. 

(20)  The IBER entered into force on 1 April 2010 and will expire on 31 March 2017. This 
Regulation aims to ensure effective protection of competition while providing benefits 
to consumers and adequate legal security for undertakings. 

(21)  In 2010, during the latest renewal, the Commission reduced the categories of exempted 
agreements from four to the current two, and also adopted a Communication providing 
guidance on the application of the IBER (hereafter the IBER Communication).  

2.4  Effects of a Block Exemption Regulation 

(22)  BERs  automatically  exempt  certain  categories  of  agreement  from  the  prohibition  of 
Article 101(1) TFEU. If an agreement falls within the scope of the category defined in a 
BER on the basis of its contents, it is automatically deemed to  meet the compatibility 
conditions of Article 101(3) TFEU.  

(23)  By  contrast,  if  an  agreement  does  not  fall  within  a  BER  and  is  suspect  of  violating 
Article 101(1) TFEU, it is then necessary for the relevant undertakings or association to 
carry out a self-assessment in order to examine the pro-competitive and anticompetitive 
effects  of  the  agreement  before  finding  that  it  complies  with  the  conditions  set  out  in 
Article 101(3) TFEU, and is thus individually exemptible and, consequently, compatible 
with the internal market.  

(24)  According  to  Article  103(2)  TFEU,  the  Commission  may  adopt  BERs  "taking  into 
account  the  need  to  ensure  effective  supervision  on  the  one  hand,  and  to  simplify 
administration  to  the  greatest  possible  extent  on  the  other".  That  is  to  say,  when 
deciding  whether  or  not  to  adopt  a  BER  and  subsequently  its  scope,  the  Commission 
must  balance  the  obligation  to  ensure  an  effective  supervision  of  markets  against  the 
need  to  simplify  administration and  the  associated  administrative  burden  put  upon the 
concerned undertakings.  

(25)  Prior to the entry  into  force of Regulation 1/2003 that  modernised the enforcement of 
the EU competition rules, the primary objective of a BER was to reduce the number of 
notifications  made  to  the  Commission.  Regulation  1/2003  abolished  the  system  of 
notifications,  but  did  not  do  away  with  BERs.  However,  the  rationale of  BERs  has  in 
part changed with the modernised EU competition rules. As part of the modernisation 
process,  the  Commission  has  taken  a  clearer  and  more  detailed  framework  for  the 
assessment of Article 101(3) TFEU. This can be seen, for instance, in the review of the 

9 

 
 
 
block exemption regulations applying to vertical and horizontal agreements, as well as 
in the Vertical and Horizontal Guidelines adopted by the Commission for assessing such 
agreements when they fall outside these BERs.  

(26)  Therefore, a BER should be strictly limited to those categories of agreements that can 
be adequately and clearly defined, and which can be assumed with sufficient certainty to 
satisfy  the  conditions  of  Article  101(3)  TFEU.  Furthermore,  under  the  modernised 
enforcement  system  a  BER  can  be  considered  to  be  an  appropriate  instrument  of 
administrative  simplification  only  if  it  can  be  proven  that  it  produces  an  appreciable 
reduction in compliance costs.  

(27)  This restrictive approach was already adopted by the Commission when it last reviewed 
the functioning of the preceding IBER. As the IBER Communication explains, a sector-
specific BER is an exceptional instrument that “should only be adopted if cooperation in 
the  insurance  sector  is  'special'  and  different  from  other  sectors  which  do  not  benefit 
from a BER (i.e. most sectors currently)”12.  

(28)  Instead  the  IBER  requires  a  self-assessment  where  those  agreements  fall  within  two 
specific categories: information exchange, and cooperation in pools that are defined in 
the IBER on the basis of their contents. As long as the relevant agreements fall within 
these  definitions  and  certain  other  conditions  are  fulfilled,  they  are  automatically 
deemed  compatible,  because  the  Commission  presumes  that  they  produce  net  pro-
competitive effects.  

(29)  The  IBER  exemptions  should  be  designed  to  cover  genuinely  beneficial  instances  of 
cooperation between (re)insurers by the least restrictive means of cooperation available 
taking  into  account  the  most  recent  market  developments.  This  cooperation  is  thus 
presumed, on the one hand, to facilitate market entry and the underwriting of insurance 
products  that  otherwise  would  not  be  offered,  with  the  ensuing  effect  of  keeping 
premiums  low  and  consumer  choice  large  and,  on  the  other,  to  also  effect  increased 
legal certainty and an appreciable reduction in compliance costs (with the competition 
rules)  for  (re)insurers.  These  expected  results  and  direct  impacts  are  considered  to 
ultimately  ensure  competition  between  (re)insurers  on  a  level  playing  field  and  to 
enhance innovation and consumer welfare.  

3 

THE ASSESSMENT CRITERIA AND QUESTIONS 

(30)  For  this  Review,  the  Commission  took  the  same  restrictive  approach  used  in  the 
preceding  review.  The  IBER  Communication  set  the  scene  for  the  evaluation  and 
impact assessment by explaining, as previously indicated, that a sector-specific BER is 

12  

Paragraph 4, Communication from the Commission on the application of Article 101(3) of the Treaty on 
the  functioning  of  the  European  Union  to  certain  categories  of  agreements,  decisions  and  concerted 
practices in the insurance sector, COM(2010) 100. 

10 

 
 
                                                      
 
an exceptional instrument that "should only be adopted if cooperation in  the insurance 
sector is 'special' and different from other sectors which do not benefit from a BER (i.e. 
most sectors currently)"13.  

(31)  Hence,  in  order  to  assess  the  functioning  of  the  IBER  and  later  determine  whether  it 
should be renewed and, if so, to what extent, the Commission proposed to address two 
basic consecutive and related questions:  

Question 1: Is the insurance sector still characterised by distinct features that present an 
enhanced need of cooperation in those fields in which the remaining IBER exemptions 
apply?  

Question 2: If that is the case, is an exceptional instrument such as a BER still needed in 
order to protect that enhanced need for cooperation?  

(32)  These  two  elementary  questions  were  also  used  as  evaluation  and  impact  assessment 

benchmarks in the review of the preceding IBER.  

(33)  Therefore,  the  public  consultation  that  took  place  during  2014,  and  the  subsequent 
process  of  evidence  gathering,  were  structured  and  carried  out  in  a  manner  aiming  to 
answer these two questions, and to support the Impact Assessment of the policy options 
for the future of the IBER.  

(34)  In  May  2015  the  Commission  adopted  the  Better  Regulation  Guidelines  that  aim  at 
“designing  EU  policies  and  laws  so  that  they  achieve  their  objectives  at  minimum 
cost”14.  These  Better  Regulation  Guidelines  set  a  framework  for  undertaking  the 
different phases of the whole policy cycle, from policy design and preparation, through 
implementation and application, to the evaluation of policies and laws and their review.  

(35)  The Report to the European Parliament and the Council on the functioning and future of 
the  IBER  constitutes an  interim  step  in  the  broader  process  of  the  Impact  Assessment 
the Commission is conducting in order to evaluate the possible policy options before the 
current IBER lapses.  

(36)  Naturally,  the  original  information-gathering  steps  from  stakeholders15  which  the 
Commission  undertook  (i.e.  the  consultation  of  NCAs  of  the  EU  Member  States,  the 
Public Consultation, as well as the targeted questionnaires to stakeholders also sent in 
2014)  did  not  explicitly  use  the  questions  set  out  in  the  Better  Regulation  Guidelines, 
because these Better Regulation Guidelines were adopted later in May 2015. 

13  

14  
15  

See Paragraph 4, Communication from the Commission on the application of Article 101(3) of the Treaty 
on  the  functioning  of  the  European  Union  to  certain  categories  of  agreements,  decisions  and  concerted 
practices in the insurance sector, COM(2010) 100. 

Chapter I, Section 2.  

See Section 4 below. 

11 

 
 
                                                      
(37)  As  previously  explained,  for  the  purpose  of  the  IBER  Review  the  Commission 
originally  used  as  primary  benchmarks  the  two  questions  employed  in  the  preceding 
review.  Around  those  benchmarks,  the  Commission  then  structured  more  concrete 
questions in the public consultation and the targeted questionnaires. 

(38)  However,  the  Review  has  been  conducted  in  an  open,  transparent  manner  and  key 
elements  of  retrospective  evaluation  have  been  respected.  Thus,  the  analysis  of  the 
enhanced need for cooperation has allowed looking at the relevance, while the analysis 
of the need for a BER has taken into account the coherence, efficiency and effectiveness 
of such an approach. 

4  METHOD 

(39)  This  section  describes  the  methods  used  to  gather  information  for  the  Review  of  the 
IBER. It sets out the formal steps of the review process, as well as the preparatory work 
undertaken so far.  

4.1  Study on co(re)insurance pools  and on ad-hoc co(re)insurance agreements on the 

subscription market and workshop 

(40)  As a first preparatory step in the review process the Commission commissioned a Study 
on co(re)insurance pools and on ad-hoc co(re)insurance agreements on the subscription 
market.  The  objective  of  the  Study  was  to  obtain  an  in-depth  understanding  of  the 
operation of these two types of co(re)insurance cooperation frameworks across the EU. 
In  addition,  the  Commission  sought  to  gather  information  on  the  application  of  the 
IBER in order to understand how pools undertake legal assessments, and to what extent.  

(41)  The study provides, at EU-27 level, an overview of the pools and ad-hoc agreements on 
the subscription market existing after the adoption of a new IBER in 2010. The Study 
also analyses similarities and differences between these two types of arrangements, and 
contains detailed factual country-specific reports on both topics. It is a descriptive study 
and  does  not  include  recommendations.  A  first  edition  of  the  Study  was  published  in 
2013,  a  new  edition  in  201416.  Following  the  publication  of  the  first  edition,  the 
Commission organised a Workshop on 12 March 2013 at the Commission's premises in 
Brussels  and  discussed  the  findings  with  stakeholders  in  two  panels  dedicated  to 
co(re)insurance pools and ad-hoc co(re)insurance agreements. 

4.2  Consultation of NCAs 
(42)  The formal review process then started with the consultation of the NCAs17 in February 

2014 by means of a questionnaire. 

16  
17  

http://ec.europa.eu/competition/sectors/financial_services/KD0414707ENN.pdf  

This  comprised  the  National  Competition  Authorities  of  the  28  EU  member  states  and  the  EFTA 
Surveillance Authority. 

12 

 
 
                                                      
(43)  The questionnaire included 17 questions divided in three main sections respectively on 
(a)  the  application  of  the  IBER  in  practice,  (b)  the  results  of  the  study  on  co  (re)-
insurance pools and on ad-hoc co (re)-insurance agreements on the subscription market, 
(c)  their  prospective  assessment.  In  addition,  in  section  (d)  the  NCAs  were  invited  to 
provide  any  other  information  that  they  might  consider  pertinent18.  Following  the 
written consultation, a meeting was held on 13 June 2014 at the Commission's premises 
in Brussels to discuss the feedback received.  

4.3  Roadmap and Inception Impact Assessment 

(44)  The review process was presented to the public in more detail with the publication of a 
Roadmap in May 2014 on the internet. This roadmap was replaced in August 2015 by 
an  Inception  Impact  Assessment19  following  the  adoption  of  the  Better  Regulation 
Guidelines due to the fact that the review is subject to an Impact Assessment.  

4.4  Consultation of stakeholders 

4.4.1 Public consultation 

(45)  A  major  step in  the review process represents the Public Consultation that ran from 5 
August  to  4  November  2014.  In  August  the  Commission  published  an  online 
questionnaire  for  stakeholders  using  the  Commission's  EU  Survey  platform20  and  DG 
Competition's website. Stakeholders were invited to provide feedback within a period of 
13 weeks in any official EU language either by means of the online questionnaire or by 
sending contributions by post. The launch of the public consultation was accompanied 
by a press release21 which set out the background for the review process.  

the  following 

(46)  The  questionnaire  comprised  40  questions  divided  into  five  sections  gathering 
topics:  (2.1)  Stakeholder  Profile  (2.2)  Market 
information  on 
developments; (2.3) Application of the IBER in practice; (2.4) Policy options; and (2.5) 
Impact  of  the  options22.  The  questionnaire  included  specific  questions  inviting 
stakeholders to identify the concrete changes that a potential non-renewal of the IBER 
could produce in their behaviour, as well as to quantify the additional costs they would 
incur as a result of this or, at least, to rank the effects on a qualitative scale.  

(47)  The  consultation  was  open  to  all  citizens  and  organisations,  but  comments  from 
stakeholders  affected  by  IBER,  such  as  (re)insurers,  industry  associations,  insurance 

18  
19  

20  

21  
22  

See Annex I. 

Following the adoption of the Better Regulation Guidelines the Roadmap was replaced by an Inception 
Impact 
Assessment:http://ec.europa.eu/smart-
regulation/roadmaps/docs/2016_comp_001_review_iber_en.pdf  

Public consultation questionnaire and specific replies: 
https://ec.europa.eu/eusurvey/runner/Public_Consultation_Insurance_Block_Exemption_Regulation 

http://europa.eu/rapid/press-release_IP-14-905_en.htm  

See Annex II. 

13 

 
 
                                                      
intermediaries,  public  authorities,  customers  and  consumer  organisations  were 
particularly  welcome.  Replies  were  received  from  37  stakeholders,  including  public 
authorities, 
insurance  undertakings  and  associations,  and  published  on  DG 
Competition's website. 

4.4.2 Targeted  questionnaires,  bilateral  meetings  and  telephone  conferences  following 

the Public consultation  

(48)  Given  that  most  of  the  replies  to  the  Public  Consultation  came  from  industry 
associations and (re)insurers the Commission complemented the Public Consultation by 
targeted  questionnaires  sent  to  stakeholders  groups  from  whom  the  Commission  had 
received only a limited number of responses. Targeted questionnaires were sent to pools 
as  they  are  directly  affected  by  one  of  the  IBER  exemptions,  to  intermediaries 
federations  /brokers  being  both  involved  in  the  operations  of  pools  and  to  mutual 
insurance associations (hereafter mutuals) operating in the nuclear and energy sector23 
which  act  as  competitors  to  pools,  as  well  as  to  customers  and  customer  associations 
operating in fields in which co(re)insurance schemes appeared to be prevalent. 

(49)  In  order  to  improve  the  quality  and  relevance  of  the  feedback  received  through  the 
public consultation and targeted questionnaires, as of November 2014, the Commission 
held  bilateral  meetings  and  telephone  conferences  with  stakeholders,  namely  an 
actuarial  association,  pools  and  national  insurance  associations,  who  are  regularly 
involved in the exchange of information and thus apply the IBER in practice. Some of 
the  stakeholders  who  had  submitted  observations  were  also  contacted  for  follow-up 
interviews in order to clarify their position or address additional questions.  

4.4.3 Data and Information gaps 

(50)  While the content of the stakeholder replies and the feedback received from the NCAs 
will  be  reported  in  Section  5  below,  this  section  will  give  an  overview  of  the  data 
collected  by  the  Commission  during  the  review  process  and  of  potential  information 
gaps.  

4.4.3.1 Study  on  co(re)insurance  pools  and  on  ad-hoc  co(re)insurance  agreements  on  the 

subscription market 

(51)  The  Study  on  co(re)insurance  pools  and  on  ad-hoc  co(re)insurance  agreements  on  the 
subscription market identified an overall low number of only 46 institutionalised pools 
potentially covered by the IBER exemption. The number of pools was found to be lower 
than initially expected. Of the 100 arrangements considered to be covered by the IBER 
definition, 39 were in the end outscoped from the study following interviews24. 61 pools 
were  actually  considered  to  fulfil  the  IBER  definition;  however,  15  of  those  were 

23  

24  

Energy  and  nuclear  pools  is  the  largest  category  of  pools  identified  by  the  referenced  "Study  on 
co(re)insurance pools and on ad-hoc co(re)insurance agreements on the subscription market".  

See page 13 paragraph 59 and page 309, table 2 of the Study. 

14 

 
 
                                                      
identified  to  be  no  longer  operative,  i.e.  in  "run-off"25.  Almost  one  quarter  of  IBER 
pools  has  hence  decided  to  leave  the  market.  This  represents  a  further  decline  in  the 
number of pools under the IBER definition.  

(52)  Information  could  only  be  gathered  in  respect  of  42  pools,  as  four  pools  declined  to 
participate26. Response rates relating to the questions on self-assessment under the IBER 
were disappointingly low.  

4.4.3.2 Consultation of NCAs 

(53)  As regards input from the NCAs, fourteen of them replied to the Commission. Overall, 
their experience with the IBER in the review period appeared to be limited. It has to be 
pointed out that NCAs preferred not to take a formal position on the future of the IBER 
yet. However, it seems  that  the few NCAs with some experience in the application of 
the  IBER  tend  to  support  its  non-renewal,  while  a  larger  proportion  appears  to  be  in 
favour of renewal.  

(54)  The  Spanish,  German  and  Dutch  competition  authorities  also  submitted  detailed 

information on cases connected with the application of the IBER. 

4.4.3.3 Consultation of Stakeholders  

(55)  The Public Consultation ran from 5 August 2014 until 4 November 2014, i.e. 13 weeks, 
giving  interested  stakeholders  sufficient  time  to  participate.  37  replies  were  received. 
Almost three quarters of replies came from the insurance industry27. Only one customer 
participated  in  the  public  consultation.  The  majority  of  those  who  completed  the 
questionnaire provided by the European Commission did not answer all of the questions 
therein. Several of those who responded provided their views in different formats. 

(56)  However, to cover a maximum of stakeholders affected by IBER and mitigate the risk 
of  not  detecting  significant  market  views  additional  questionnaires  were  sent28  to  49 
pools, namely all 46 pools scoped under the study on co(re)insurance pools and on ad-
hoc co(re)insurance agreements on the subscription market29 and three other entities30. 
Furthermore, tailor-made  questionnaires were sent to  39 intermediaries/associations of 
intermediaries, four mutuals as well as to 75 customers/customer associations. The rate 
of  reply  was  very  different  across  the  different  categories  of  stakeholders:  30  replies 

25  
26  
27  
28  
29  
30  

See Executive Summary of the Study, p. ii. and page 41 paragraph 162 table 13. 

Two pools from Belgium, a Bulgarian and a Czech pool declined to participate. 

For details see summary of input from Public consultation in Section 5 below. 

For details see section State of Play, Summaries of additional questionnaires. 

http://ec.europa.eu/competition/sectors/financial_services/KD0414707ENN.pdf 

These concerned: one entity located in Croatia which was not part of the study because the study focussed 
on  EU-27.  The  other  two  entities  have  been  determined  out  of  scope  by  the  study,  one  of  them  had 
responded  to  the  public  consultation.  However,  it  was  unclear  whether  these  two  could  potentially  fall 
under IBER. 

15 

 
 
                                                      
received 

from  pools,  nine 

intermediaries/associations  of 
replies 
were 
intermediaries,  two  replies  from  mutuals  and  12  replies  from  insurance  customers 
coming from the chemical, energy, oil & gas and transport sector.  

from 

(57)  In  addition,  the  Commission  held  bilateral  meetings  and  telephone  conferences  with 

insurance associations, pools and an actuaries association.  

(58)  From a  quantitative  point  of view,  the data gathered so far during the present Review 
can  be  considered  especially  significant  with  regard  to  insurance  undertakings, 
including  insurance  associations  and  pools.  The  data  collected  on  the  exchange  of 
information  were  comparatively  more  substantial  than  those  on  pools.  The  overall 
moderate rate of responses  despite the efforts undertaken,  as well as the results of the 
Study suggest above all a limited application of the IBER exemption for pools.  

(59)  On the other hand, it should be noted that the limited participation of customers in the 
Public consultation, and the low rate of responses to the target questionnaire, could be 
explained by the very technical character of the issues involved in the Consultation. In 
addition, several pools operate on a reinsurance level, meaning that end customers have 
no direct contact with those pools. 

4.4.4 Further steps 

4.4.4.1 Studies  on  issues  pertaining  to  the  insurance  production  process  with  regard  to  the 

application of the IBER 

(60)  In  summer  of  2015,  the  Commission  launched  two  studies  to  clarify  some  issues 
pertaining to the process of generating insurance products with regard to the application 
of the IBER that have been raised by stakeholders in the context of the above-mentioned 
interactions  (i.e.  supply-side  substitutability31  in  insurance,  and  the  impact  on 
competition of different forms of cooperation between (re)insurers). These studies will 
likewise provide additional input for the Commission to gain a comprehensive overview 
of the market for the purpose of making its final proposals on the future of the IBER. 

(61)  The  first  study  concerning  the  possibility  of  switching  between  different  insurance 
products  addresses  some  relevant  aspects  that  might  facilitate  the  application  of  the 
guidelines  on  market  definition  and  market  share  calculation  to  the  insurance  sector. 
The second study on different forms of cooperation amongst insurance companies, and 
the  study  on 
their  respective 
co(re)insurance  pools  and  on  ad-hoc  co(re)insurance  agreements  on  the  subscription 
market already published by the Commission. It will discuss the range of benefits and 
disadvantages  deriving  from  each  type  of  existing  or  possible  alternative  insurance 

impact  on  competition, 

is  complementary 

to 

31  

Supply-side  substitutability  means  that  suppliers  are  able  to  switch  production  to  the  relevant  products 
and  market  them  in  the  short  term  without  incurring  significant  additional  costs  or  risks  in  response  to 
small  and  permanent  changes  in  relative  prices.  See  Commission  Notice  on  the  definition  of  relevant 
market (OJ C 372, 9.12.1997), paragraph 20. 

16 

 
 
                                                      
cooperation  scheme;  analyse  the  different  potential  effects  on  market  structure  and 
market dynamics deriving from each existing or possible insurance cooperation scheme; 
make  an  overall  comparison  of  the  different  forms  of  cooperation  by  focusing  on  the 
above findings; and identify and analyse viable alternative (re)insurance instruments to 
cover risks. Both studies will be completed in the second quarter of 2016.  

4.4.4.2 Stakeholder discussion 

(62)  In order to further fill possible information gaps, the Commission intends to organise a 
stakeholder discussion on the preliminary conclusions of the Report. The Commission 
also  intends  to  publish  the  above-mentioned  studies  and  considers  presenting  the 
studies' findings at that stakeholder discussion, if necessary.  

5 

STATE OF PLAY 

(63)  This  section  summarises  the  feedback  received  by  way  of  the  public  consultation  and 

the targeted questionnaires to stakeholders, as well as the input provided by the NCAs. 

5.1  Public consultation  

(64)  37 replies were received to the public consultation that gathered evidence and views on 
the functioning and future of IBER. 17 replies came from participants registered in the 
Transparency Register of the European Commission and the European Parliament, and 
17  from  non-registered  organisations.  Three  replies  came  from  public  authorities 
located  in  Austria,  France  and  Germany.  Three  participants  qualified  themselves  as 
Small or Medium-sized Enterprises (SMEs).  

(65)  The  Commission  obtained  replies  from  the  following  stakeholder  categories:  22 
industry  associations;  four  insurance  undertakings  (two  of  which  are  also  reinsurance 
undertakings)  one  insurance  intermediary;  one  customer;  three  public  authorities;  and 
six other entities. Among the participants in the public consultation were only four pools 
within the meaning of the IBER.  

(66)  The  purpose  of  the  questionnaire  was  to  gather  views  on the  functioning  of  the IBER 
and  obtain  concrete  quantitative  and  qualitative  information  regarding  the  potential 
effects (benefits and disadvantages) of the renewal of the two IBER exemptions on the 
market.  

(67)  Many participants did not elaborate on potential impacts of the different policy options 

and therefore only provided very general statements.  

(68)  Regarding  the  different  topics  covered  in  the  questionnaire,  the  following  aspects  are 

the most relevant:  

5.1.1 Market developments 

(69)  The feedback on market developments revealed mixed views. The majority of insurers 
and  their  industry  associations  claim  that  markets  are  competitive.  However,  the  only 
customer who took part in the public consultation was of the opinion that the market of 

17 

 
 
nuclear risks was not competitive as a result of the existence of pools of insurers in this 
segment. This participant highlighted the fact that the pools of insurers for nuclear risks 
that exist in each country continue to operate within a quasi-monopolistic framework.  

(70)  Only  very  few  participants  saw  no  significant  changes  over  the  last  ten  years.  Many 
informed  the  Commission  of  the  evolution  of  their  national  markets,  and  of  certain 
common trends amongst the European markets. In the latter respect, the emergence of 
certain risks, e.g. cyber-attacks and climate change, was particularly emphasised. Some 
stakeholders  also  highlighted  new  technological  developments  in  the  fields  of  data 
collection, storage and analysis, price comparison sites and software houses, which can 
allow insurers to offer prices on a common platform.  

(71)  Several  participants  in  the  public  consultation  signalled  the  emergence  over  the  last 
years  of  certain  forms  of  cooperation,  namely  the  growing  use  of  broker-led  co-
insurance and intermediary-driven co-insurance.  

(72)  Furthermore,  insurers  stressed  that  the  implementation  of  the  Solvency  II  Directive32 
(applicable  from  1  January  2016)  reinforces  the  need  for  more  precise  and  accurate 
information on risks. The Solvency II regime sets out stricter risk capital requirements 
and  obliges  (re)insurers  to  calculate  best  estimate  liabilities.  The  existence  of 
information exchange on risks facilitated by the IBER would allow greater confidence 
in such best estimate calculations, and therefore help reduce the level of provisions that 
might otherwise need to be held in reserve, to the benefit of consumers.  

5.1.2 Application of the IBER in practice 

(73)  The  public  consultation  questionnaire  invited  stakeholders  to  provide  feedback  on  the 
actual  use  of  the  IBER  provisions,  against  the  background  that  the  above-mentioned 
Study  published  by  the  Commission  indicated  difficulties  in  applying  some  IBER 
definitions.  Many  participants  did  not  answer  the  relevant  question  on  this  topic; 
however,  about  half  of  those  who  answered  reported  difficulties  with  the  IBER 
provisions.  

(74)  Regarding the definition of "pool", some insurers consider the IBER to be imprecise and 
unclear,  specifically  when  determining  if  the  exemption  covers  certain  types  of 
cooperation  between 
intervention  of  an 
intermediary/broker.  Another  weakness  signalled  by  a  few  stakeholders  is  the  unclear 
definition of "new risk" under the IBER; in this regard, the Commission was asked to 
extend the exemption beyond the current 3-year period.  

insurers  brought  about  under 

the 

32  

Directive  2009/138/EC  of  the  European  Parliament  and  of  the  Council  of  25  November  2009  on  the 
taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II; OJ L 235, 17.12.2009, 
p. 1). 

18 

 
 
                                                      
(75)  Furthermore,  some  participants  reported  difficulties  in  defining  the  relevant  market, 
specifically when applying the market share thresholds established in IBER, and asked 
for further guidance.  

5.1.3 Policy options 

(76)  All participants that expressed a view on the future of IBER exemptions are in favour of 
their  renewal  (with  the  exception  of  the  above-mentioned  customer  who  opposes  the 
renewal  of  the  pools'  exemption  for  the  coverage  of  nuclear  risk  damages).  The 
participants took the view that the cooperation forms addressed by the IBER are specific 
to  the  sector,  and  drew  the  conclusion  that  there  is  a  need  for  an  IBER.  The  views 
provided,  however,  did  not  go  beyond  very  general  statements  and  did  not  contain 
compelling evidence for renewal.  

(77)  The  majority  of  participants  in  the  public  consultation  argue  that  in  absence  of  the 
IBER,  the  application  of  the  Commission's  current  Horizontal  Guidelines33  would  not 
provide sufficient  legal certainty, as they are not  binding  before the national  courts or 
the  NCAs.  Furthermore,  they  would  oblige  insurers  to  carry  out  an  assessment  of 
efficiencies using the Horizontal Guidelines. The Horizontal Guidelines were also said 
not to sufficiently address the distinguishing characteristics of the insurance sector. 

5.1.4 Impact of the policy options 

(78)  Many  participants  did  not  elaborate  on  the  potential  impact  of  the  policy  options, 
however,  several  provided  some  views  on  the  matter,  though  they  did  not  go  beyond 
very general statements.  

(79)  In the event of non-renewal of the IBER exemption for exchange of information, many 
participants fear that the ensuing lack of legal certainty will lead to a potential reduction 
in the existing collaboration between insurers in this field, which could adversely affect 
risk knowledge. As a result, they claim that insurance premiums and compliance costs 
would  rise  and  customer  choice,  product  availability  and  diversity  would  decrease. 
Participants also argued that the availability of adequate statistical information on risks 
is fundamental to the carrying out of operations in various classes of insurance business. 
Some  reported  that  the  implementation  of  the  Solvency  II  Directive  into  national 
financial  regulation  will  result  in  stricter  risk  capital  requirements,  which  would 
increase the importance of joint compilations, tables and studies. Exchange of risk data 
would  also  ensure  a  level  playing  field  between  smaller  and  bigger  insurers.  Smaller 
insurers  with  a  more  limited  statistical  database  due  to  their  smaller  market  presence 
would  face  greater  difficulties  in  estimating  risks.  Non-renewal  of  the  IBER  could 
discourage  bigger  market  players  from  sharing  information  with  smaller  insurers, 
thereby increasing entry barriers and reducing the number of new entrants.  

33  

Communication from the Commission 2011/C 11/01  - Guidelines on the applicability of Article 101 of 
the  Treaty  on  the  Functioning  of  the  European  Union  to  horizontal  co-operation  agreements  (OJ  C  11, 
14.01.2011, p. 1). 

19 

 
 
                                                      
(80)  As regards the cooperation within pools, the majority of stakeholders pointed out that a 
removal of the exemption would not only result in less legal certainty (e.g. regarding the 
admissibility  of  such  cooperation)  and  greater  compliance  costs  for  insurers,  but  that 
this  uncertainty  could  also  lead  to  undue  caution  about  entering  into  certain 
arrangements.  This  could  even  lead,  in  some  cases,  to  the  dissolution  of  the  existing 
cooperation. As a result, insurers might charge higher premiums, or even cease offering 
certain insurance products, such as the cover for aggravated or catastrophic risks.  

5.2  Targeted questionnaires to Stakeholders 

5.2.1 Pools 

(81)  The Commission sent an additional and tailor-made questionnaire to 49 pools, namely 
all 46 pools scoped under the study on co(re)insurance pools and ad-hoc co(re)insurance 
agreements on the subscription market mentioned above, and three other entities34. The 
questionnaire  comprised  22  questions  grouped  under  three  sections:  description  of  the 
pool, relevant market, and impact of the IBER. Some pools did not answer all questions.  

(82)  The Commission received a total of 30 replies to the questionnaire: eleven from direct 
insurance pools, ten from reinsurance pools, and nine from direct and reinsurance pools. 
Responses came mainly from the energy sector, followed by pools providing insurance 
for  risks  relating  to  terrorism  and  environmental  incidents.  The  predominant  risk 
categories  covered  by  the  responding  pools  were  those  against  liability  and  property 
damage. The majority of the pools are predominantly active in just one Member State. 
Regarding  the  requirements  of  pool  membership,  most  of  the  pools  elaborated  on  the 
matter and identified common requirements, for instance the necessity to be a licensed 
(re)insurer,  be  financially  solvent,  adhering  to  a  group  agreement  and  having 
underwriting experience.  

(83)  Some replies referred to additional criteria, such as the availability of specific amounts 
of capital, or the approval of pool members by the relevant supervisory authority.  

(84)  Regarding the question posed by the Commission, i.e. the possible participation of the 
pool members in other pools, most of the pools confirmed that members are free to join 
several  pools.  Moreover,  a  number  of  them  claimed  to  provide  coverage  outside  the 
pool  for  the  same  risk  type  insured  by  the  pool.  On  the  possible  involvement  of 
intermediaries,  replies  were  divided  as  more  than  half  of  the  pools  reported  that 
intermediaries have a role to play within the pool, while others stand for the opposite.  

(85)  As for the contractual conditions within the pool, the scope of business as well as the 
capacities  and  claims,  the  responses  showed  great  variety. Regarding  the  scope  of  the 
pools'  business  activities,  the  answers  ranged  from  it  being  prescribed  by  government 

34  

These concerned: one located in Croatia, which was not part of the study because the study focussed on 
EU-27. The other two entities have been outscoped by the study, one of them had responded to the public 
consultation. However, it was unclear whether these two could potentially fall under IBER. 

20 

 
 
                                                      
and set into law, to being determined by the relevant governing bodies. For instance, in 
one case contractual conditions need to be approved by a ministry, while in other cases 
this  falls  to  the  relevant  bodies  of  the  pool.  As  regards  intervention  of  Member  State 
authorities in the functioning of the pool, more than half of the pools stated that there is 
no  intervention,  while  a  slightly  smaller  number  indicated  some  form  of  intervention, 
such as subsidisation of premiums, approval of scope and price etc.  

5.2.1.1 Relevant market 

(86)  About  half  of  the  pools  signalled  that  they  are  the  only  participant  in  the  relevant 
national  market,  or  at  least  the  main  participant  for  certain  lines  of  business.  Some  of 
the  pools,  which  regarded  themselves  as  main  participants  in  some  lines  of  business, 
saw  themselves  as  minor  participants  for  other  lines  of  business  offered  by  them. 
Several pools claimed to be minor or even insignificant players in the whole market in 
which they operate. As regards competition, some gave information on the competitive 
environment  and  took  the  view  that  the  market  in  which  they  operate  is  competitive. 
Respondents highlighted as new developments in the markets they operate for instance 
new entrants of competitors, Solvency II and change of legislation.  

5.2.1.2 Impact of the IBER 

(87)  Two thirds, namely 20 pools, consider themselves not to fall within the scope of Article 
101(1) TFEU, based on a number of arguments, such as recital 1335 of the current IBER. 

(88)  Due  to  this  fact,  most  of  the  pools  observed  that  they  do  not  use  the  exemptions 
contained  in the IBER. Nevertheless, they remarked on the legal certainty  and helpful 
guidance provided by the IBER.  

(89)  Indeed, since the majority of the pools consider themselves as falling outside the scope 
of  Article  101(1)  TFEU,  they  do  not  need  to  rely  on  Article  101(3)  TFEU.  However, 
several  highlighted  that  if  they  were  within  the  scope  of  Article  101(1)  TFEU,  they 
would meet the requirements for exemption, having positive effects on the market and 
on competition.  

(90)  A considerable number of pools took the view that the question regarding the possible 
difficulties in applying the IBER does not apply to them as they fall outside the scope of 
the IBER. However, eleven pools, among them also pools that regarded themselves as 
falling outside the scope of the IBER, reported difficulties regarding its application. The 
definition of the relevant market, as well as the calculation of the market shares in order 
to  determine  whether  the  threshold  for  exemption  is  met,  were  said  to  represent  a 
challenge. Moreover, one respondent did not feel at ease with the definition of 'pools', 

35  

“Co-insurance  or  co-reinsurance  pools  can,  in  certain  limited  circumstances,  be  necessary  to  allow  the 
participating  undertakings  of  a  pool  to  provide  insurance  or  reinsurance  for  risks  for  which  they  might 
only offer insufficient cover in the absence of the pool. Those types of pools do not generally give rise to 
a restriction of competition under Article 101(1) of the Treaty and thus not prohibited by it”. 

21 

 
 
                                                      
and  a  further  two  voiced  concerns  about  the  new  risk  section,  namely  regarding  the 
allegedly insufficient length of the relevant period of exemption, and the lacking clarity 
regarding  the  starting  point  of  this  period.  Ten  pools  reportedly  experienced  no 
difficulties with the IBER.  

5.2.2 Customers 

(91)  The  Commission  sent  75  questionnaires  to  customers  and  customer  associations  in 
various sectors36. 12 replies from chemical, energy, oil & gas and transport companies 
were  received.  The  questionnaire  comprised  14  questions  relating  to:  the  provision  of 
insurance  cover,  impacts  of  the  IBER,  and  potential  suggestions  for  the  future  of  this 
instrument. 

5.2.2.1 Provision of insurance cover 

(92)  Concerning insurance coverage, all of the customers that responded to the questionnaire 
provided information about their main insurance scheme, i.e. coinsurance. The majority 
of  them  engage  the  service  of  global  brokers.  Most  of  the  customers  agree  that  the 
market  is  open,  world-wide  and  competitive.  However,  customers  within  the  energy 
sector  consider  the  market  to  be  national,  remarking  on  its  lack  of  competition. 
Moreover, those engaged in the production of nuclear energy stated that each state has 
its own local nuclear insurance pool, each of which enjoys a monopoly position.  

(93)  Most  of  the  customers  claim  that  there  is  a  need  for  insurers  to  cooperate.  They  use 
cooperation  frameworks  such  as  pools  and  intermediary-led  agreements,  although  the 
preferred frameworks are ad-hoc agreements.  

5.2.2.2 Impacts of the IBER and outlook 

(94)  Several  customers  take  the  view  that  cooperation  under  the  IBER  does  not  hinder 
competition  and  has  a  rather  positive  effect  on  the  market.  A  number  of  them  also 
pointed  out  their  positive  effect  on  premiums.  However,  a  quarter  of  the  targeted 
customers, all active in the energy sector, share the opinion that the IBER has a negative 
impact when it comes to negotiating premiums. Regarding the oil & gas sector, almost 
half  of  the  customers  who  responded  to  the  questionnaire  considered  themselves  as 
falling  outside  of  the  scope  of  the  IBER,  while  the  remainder  reported  stable  or 
marginally falling premiums.  

5.2.3 Brokers and Intermediaries' federations 

(95)  39  questionnaires  were  sent  to  intermediaries/brokers  and  their  associations.  Nine 
replies  were  received.  The  questionnaire  comprised  34  questions  on:  insurance 

36  

Questionnaires  were  sent  to  the  following  sectors:  Agriculture,  Chemicals,  Energy,  Oil  &  Gas, 
Professional Business Services, Transport and Waste Treatment. 

22 

 
 
                                                      
 
brokerage,  the  impact  of  the  IBER,  and  potential  suggestions  for  the  future  of  this 
instrument. 

5.2.3.1 Insurance Brokerage 

(96)  All  of  the  brokers  questioned  provide  their  services  world-wide.  Most  of  them  are 
involved  in,  and  lead,  a  large  number  of  co(re)insurance  arrangements.  Brokers  also 
believe that these arrangements do not fall under the scope of Article 101(1) TFEU as 
they  are  not  restrictive  of  competition.  Competition  is  believed  to  be  vigorous,  as 
brokers compete among themselves and occasionally with agents. 

5.2.3.2 Intermediaries' federations 

(97)  Most of those who replied to the questionnaire remarked on the advantages conferred by 
pools,  be  they  led  by  brokers  or  insurance  undertakings.  Moreover, they  consider  that 
both should be treated in the same manner. 

(98)  A  general  consensus  exists  on  the  value  of  using  a  broker.  When  it  comes  to  the 
possible impact of removing the IBER, they also agree that pools would be minimally 
affected, as they clearly fall within Article 101(3) TFEU. 

5.2.3.3 Impact of IBER 

(99)  All  of  the  brokers  and  intermediaries  federations  questioned  share  the  opinion  that 
cooperation under the IBER promotes market entry. The non-renewal of the IBER may 
cause  brokers  or  (re)insurers  to  reduce  their  involvement  with  pools  because 
participants  may  erroneously  believe  that  in  the  absence  of  the  IBER,  pools  may  be 
considered anticompetitive and thus illegal. Those of the brokers who expressed a view 
on the impact of the IBER reported it to be a positive instrument. 

5.2.3.4 Outlook 

(100) Most of the brokers propose an expansion of the scope of the IBER. Likewise, all the 
participants  agree  against  distinguishing  between  insurers  according  to  size,  and 
between risk classes. 

5.2.4 Mutuals 

(101) The Commission sent 4 questionnaires to mutual insurance associations. 2 replies were 
received.  The  questionnaire  compromised  19  questions  relating  to:  mutual  insurance 
association's operations, relevant market, the provision of insurance cover and potential 
suggestions for the future of this instrument. The information submitted was claimed to 
be confidential.  

5.2.5 NCA input to the IBER Review 

5.2.5.1 General observations 

(102) Many authorities did not make any observations, as they lacked practical enforcement 

experience of the IBER. 

23 

 
 
(103) As  regards  information  exchange,  those  NCAs  with  experience  reported  that  the 
relevant  exemption  is  widely  used  by  various  stakeholders  who  collect  statistical  data 
information to calculate probability of events happening in key areas such as mortality 
tables and  accident  statistics based on driver characteristics. They also mentioned that 
this  kind  of  information  exchanges  benefit  consumers,  as  sharing  of  actuarial 
information could allow insurers to better understand the underlying risks and may lead 
to lower premiums. 

(104) Turning  to  the  assessment  of  the  pools  exemption,  several  NCAs  indicated  that  these 
co(re)insurance arrangements are common in the Member States but in most cases the 
NCAs have no indication that the IBER is applied as pools can exist without relying on 
the IBER exemption, because they do not meet its market share thresholds. One NCA 
took  the  view  that  the  IBER  exemption  on  pools  is  not  essential  to  promote  the 
consumer interests. In its view, the wholesale subscription process for co-insuring that 
exists  in  some  Member  States  does  not  require  insurers  to  explicitly  agree  on  the 
premiums, 
flexible 
co(re)insurance arrangements provide a viable and possibly more efficient alternative to 
cover most of the large and new risks. 

terms  and  conditions  of  cover.  Moreover, 

these  more 

(105) Another NCA considered that instead of simplifying the application of the competition 
rules in their daily enforcement practice, the existence of the IBER rather leads to the 
result  that  the  NCA  can  hardly  object  to  certain  forms  of  cooperation,  irrespective  of 
whether  or  not  it  considers  the  cooperation  to  be  beneficial.  Withdrawing  the  IBER 
protection  is  rarely  an  option  as  this  would  require  exceptional  circumstances  and 
reasoning. 

(106) Yet  another  NCA  drew  the  Commission’s  attention  to  the  difference  between  the 
national insurance industry's understanding of "pools" and what is regarded as being a 
pool  under  the  terms  of  the  IBER.  There  appears  to  be  uncertainty  whether  certain 
cooperation  arrangements  that  are  not  labelled  "pools,"  would  fall  within  the  IBER 
definition of pools. 

(107) The same NCA also took the view that firms should be able to self-assess whether there 
are significant benefits from forming a pool and small chances of competitive harm. 

5.2.5.2 Decisional practice and case law 

(108) The  most  relevant  decisions  and  cases  of  NCAs  brought  to  our  knowledge  which  are 
relevant to the assessment of the IBER during the Review period are detailed below.  

5.2.5.2.1  Germany 

24 

 
 
(109) In  2009,  following  a  protracted  legal  dispute,  German's  Federal  Supreme  Court 
(Bundesgerichtshof)  conclusively  overturned37  a  prohibition  decision  handed  down  by 
the German competition authority38 (Bundeskartellamt, the German NCA).  

(110) The  German  NCA  had  taken  the  decision  to  prohibit  a  longstanding  pooling 
arrangement for the provision of professional liability insurance between four insurance 
companies. This prohibition decision followed from a narrow definition of the relevant 
market, according to which the markets for professional liability insurance provided to 
auditors,  lawyers,  notaries  and  accountants  are  fundamentally  separate  since  the  risks 
pertaining  to  auditors  were  different  from  those  relating  to  lawyers,  actuaries  and 
notaries. Based on this narrow market definition, the German NCA concluded that the 
pool  exceeded  the  20%  threshold  that  would  have  allowed  it  to  benefit  from  the 
protection of the IBER exemption for pools. 

(111) Instead,  the  German  Court  of  Appeal  concluded39  that  the  pool's  market  share  for 
benefiting  from  the  IBER  exemption  should  be  calculated  using  a  broader  relevant 
product  market  that  encompasses  all  types  of  professional  liability  insurance  (rather 
than treating them as individual product markets), because it assumed a high flexibility 
of  product  substitutability  in  the  insurance  sector.  Consequently  the  German  Court  of 
Appeal annulled the NCA's prohibition decision. 

(112) The Court of Appeal's decision was eventually upheld by the German Supreme Court. 
Accordingly,  in  Germany,  following  this  case,  co(re)insurance  pools  regularly  do  not 
exceed  the  corresponding  market  share  of  20%  or  25%  set  out  in  the  IBER  for 
exempting pools. 

(113) In  addition,  during  the  Review  period  the  German  NCA  only  dealt  with  two  cases 
concerning the IBER The German NCA considers that this small number of cases may 
be explained by the wide market definition adopted by the Courts in Germany. 

5.2.5.2.2  Lithuania 

(114) In  2012,  the  Supreme  Administrative  Court  of  Lithuania  upheld  the  decision  of  the 
Competition Council of the Republic of Lithuania (CC) of 23 December 2010. In this 
case, the two largest insurance companies in Lithuania had concluded an insurance pool 
agreement in the markets of compulsory civil liability insurance for building designers 
and  for  constructors.  The  pool  accounted  for  a  market  share  above  the  20%  threshold 
established in the IBER for exemption. The pool members agreed to share risks and to 
calculate  their  premiums  based  a  common  method  of  pricing.  Holding  that  the  IBER 
exemption does not extend to the sharing of information on prices, the Court reasoned 
that  cooperation  arrangements  leading  to  agreements  on  the  amount  of  insurance 

37  
38  
39  

Bundesgerichtshof, BGH, Beschl. v. 23. 06.2009 - KVR 57/08. 
Bundeskartellamt, BKA, Beschl. v. 10.08.2007 – B4 – 31/05. 
Oberlandesgerichts: OLG Düsseldorf, Entsch. v. 17.09.2008 – VI-Kart 11/07. 

25 

 
 
                                                      
premiums  to  be  charged  do  not  benefit  from  the  IBER,  and  must  be  prohibited.  As  a 
result, the pool members were fined.  

5.2.5.2.3  Netherlands 

(115) The  Dutch  insurance  industry  does  not  consider  coinsurance  arrangements  established 
by intermediaries (rather than by insurers) to be pools within the meaning of the IBER. 
Such arrangements have come to the attention of the Dutch Competition Directorate as 
being  potentially  restrictive  of  competition,  resulting  in  the  development  of  a  market 
protocol for self-assessment by each such intermediary-led pool in the Netherlands. This 
so-called  "Dutch  Protocol"40  of  December  2010  (developed  by  the  Association  of 
Insurers in cooperation with insurance undertakings) has not been formally endorsed by 
the Dutch  Competition Directorate, but  is  recognised as  a viable market solution.  The 
Protocol  determines  that  self-assessment  under  EU  competition  law  is  necessary 
whenever  an  insurance  pool  holds  a  share  equal  to  or  greater  than  5%  in  the  relevant 
market, and/or if the pool covers non-standard risks. Standard risks are defined as being 
easily  placed  by  an  “average  intermediary”  with  an  insurer  other  than  one  of  the 
members  of  the  pool,  without  the  need  of  co-insurance.  According  to  the  Protocol, 
participating  insurers  are  not  permitted  to  consult  one  other  with  regard  to  terms  and 
pricing. Instead, all such communication must take place between the broker/authorised 
agent,  and  the  individual  insurers.  In  addition,  pool  agreements  are  limited  to  a 
maximum  duration  of  one  year,  and  cannot  continue  by  tacit  agreement,  but  must  be 
renewed  expressly.  Compliance  with  the  protocol  must  be  recorded  both  in  the  pool 
agreement, and in the agreement between intermediary and insurer.  

(116) The  Dutch  NCA  commissioned  the  Tilburg  Law  &  Economics  Center  (TILEC)  to 
conduct a survey into the co-insurance market, which was finalised in October 2011.41 
The study included an attached memorandum where the authority discussed the results 
of the TILEC study. TILEC investigated a) under which conditions co-insurance results 
in  a  lower  premium  than  a  100%  cover  by  a  single  insurer  and,  b)  how  the  different 
tendering procedures work. As regards the cover by an insurance  pool versus a single 
insurer,  it  was  concluded  that  under  certain  conditions  co-insurance  results  in  a  lower 
premium  for  the  policyholder  than  100%  cover.  The  Dutch  Competition  Authority 
found that if the following conditions are met, they result in cost savings for the insurer 
and the policyholder: a) an open tendering procedure is carried out; b) the broker acts in 
the interests of the policyholder; c) insurers are risk-averse; and d) there is no alignment 
between insurers (i.e. no tacit collusion).  

(117) The  Dutch  NCA  adopted  a  commitments  decision  on  30  December  2010  against  four 
insurance  pools  which  jointly  provide  professional  liability  insurance  for  liberal 

40  
41  

https://www.acm.nl/en/publications/publication/6289/NMa-more-competition-among-insurers/ 

https://www.europadecentraal.nl/wp-content/uploads/2013/01/Notitie-MFS-co-assurantie.pdf 

26 

 
 
                                                      
professions (notaries, lawyers, accountants, insurance intermediaries and brokers)42. The 
pool for notaries accounted for 60% of the market for a long time and only one other 
insurer  offered  the  same  type  of  insurance.  As  for  the  relevant  market  definition,  the 
Dutch  NCA  explicitly  followed  the  German  Appeal  Court's  broad  product  market 
definition,  that  is  "the  market  for  liability  insurance  for  notaries,  lawyers  accountants, 
tax  consultants,  estate  agents  and  financial  service  providers  who  mediate  or  act  as 
authorised agents or sub-agents in insurance matters". In the case at hand, the notaries' 
pool  committed to respecting the market share threshold of 20%  in the IBER. Similar 
commitments were voluntarily offered by the other three pools under investigation. 

5.2.5.2.4  Spain 
(118) In 2009 The Spanish Competition Authority (CNMC)43 adopted a decision concerning 
information  exchange  between  six  insurers  and  reinsurers  with  regard  to  building 
damage  insurance.  The  CNMC  took  the  view  that  the  undertakings  concerned  had 
agreed  on  minimum  commercial  premiums  and  standard  policy  conditions,  neither  of 
which  is  protected  under  the  IBER,  whereas  the  undertakings  were  of  the  opposite 
opinion. The CNMC decided to fine the undertakings in November 200944.  

(119) In January 201345, the Spanish Appeal Court (Audiencia Nacional), quashed the CNMC 
decision,  finding  that  the  objective  of  the  exchange  of  information  between  the 
undertakings  concerned  was  not  anti-competitive  as  it  related  to  the  calculation  of 
product costs, and that therefore the behaviour did not fall within the ambit of Article 
101(1) TFEU. 

(120) The CNMC appealed to the Spanish Supreme Court (Tribunal Supremo). The Supreme 
Court held that the conduct did fall within the meaning of Article 101(1) TFEU, and that 
it  was  not  covered  by  the  IBER.  In  May  201546,  it  set  aside  the  appealed  judgment, 
ordering the CNMC to impose a final fine47 and redressing the erroneous interpretation 
of the IBER adopted by the Spanish Appeal Court. 

42  
43  

44  

45  

46  

47  

Decision of the Governing Board of the Dutch Competition Authority, 5998/546.BT55. 

Previously  and  until  September  2013,  CNC  ("Comisión  Nacional  de  la  Competencia").  Currently  and 
from October 2013, CNMC ("Comisión Nacional de los Mercados y de la Competencia"). 

Resolución  de  la  Comisión  Nacional  de  la  Competencia  de  12  de  noviembre  de  2009  (Expediente 
S/0037/08 Compañías de Seguro Decenal). 

Sentencia  de  fecha  4  de  enero  de  2013  dictada  por  la  Sección  Sexta  de  la  Sala  de  lo  Contencioso 
Administrativo de la Audiencia Nacional, en el recurso número 864/2009. 

Recurso  Casación  Nums.  481/2013  y  483/2013  de  la  Sección  Tercera  de  la  Sala  de  lo  Contencioso-
Administrativo del Tribunal Supremo.  

The  Commission  decided  to  intervene  as  an  amicus  curiae  in  six  separate  appeals  brought  before  the 
Spanish Supreme Court by the Spanish CNMC against six judgements rendered by the Spanish Appeal 
Court. 

27 

 
 
                                                      
5.2.5.3 Conclusions 

(121) The above NCAs practice shows that the boundaries of the pools exemption are unclear 
to  them,  notably  taking  into  account  the  very  heterogeneous  forms  of  coinsurance 
currently  available  on  the  market.  Consequently,  the  efficacy  of  the  IBER  in  terms  of 
legal certainty and intended pro-competitive effects is adversely affected by this lack of 
clarity. 

(122) Furthermore,  it  appears  that  the  NCAs  are  well  placed  to  assess  both  the  traditional 
pools as well as any new forms of cooperation and to establish best suited conditions to 
promote  effective  competition  in  their  unique  national  economic  environment.  This  is 
exemplified  by  the  development  of  particular  self-assessment  frameworks  that 
determine  how  coinsurance  arrangements  not  covered  by  the  IBER,  having  regard  to 
their particular national features, should be addressed under the EU competition rules. 
For  instance,  the  Dutch  Protocol  applied  by  the  industry  to  cooperation  outside  the 
IBER sets stricter compatibility conditions than the IBER itself. 

(123) Finally, the NCAs practice also appears to indicate that the concepts related to the IBER 
exemption on information exchange are difficult to interpret, considering the diverging 
views between the NCAs and the national courts in certain cases.  

(124) In  sum,  harmonisation  in  the  form  of  a  BER,  in  an  area  specially  marked  by  a  wide 
variety  of  cooperation  arrangements  rather  than  a  homogenous  format,  appears  to  be 
liable to substantially hinder the NCAs, as well as the national courts, in the effective 
application of EU competition rules. 

6 

ASSESSMENT 

(125) In  the  Report  to  the  European  Parliament  and  the  Council,  the  Commission  has  to 
express its preliminary views on the future of the IBER in the light of the information 
available  at  this  stage  of  the  Impact  Assessment  process,  which  is  described  in 
Section 5. 

(126) Against  this  factual  background,  in  order  to  determine  whether  and  to  what  extent  to 
renew the IBER, the Commission has proposed to answer the following two consecutive 
and related questions: Is the insurance sector still characterised by distinct features that 
present an enhanced need of cooperation in those fields in which the remaining IBER 
exemptions apply?, and if this is the case, is an exceptional instrument such as a BER 
still needed in order to protect that enhanced need for cooperation? 

6.1  Enhanced cooperation need 

6.1.1 Exemption for Compilations, Tables and Studies  

(127) As far as the exemption for information exchange is concerned, the evidence gathered 
shows  that  for  the  purpose  of  pricing  risks,  insurers  seek  to  reduce  the  dispersal 
between, on the one hand, the real value of claims and, on the other, the premiums that 
the  insured  pay.  Insurance  is  a  product  that  covers  future  risks,  the  cost  of  which  is 

28 

 
 
unknown at the time the insurance contract is concluded. Consequently, the availability 
of adequate and accurate past statistical information on the actual cost of risk classes is 
fundamental  to  the  carrying  out  of  operations  in  various  segments  of  the  insurance 
business.  Currently  no  insurer  alone  appears  to  be  in  the  possession  of  sufficient 
statistical  risk  data  to  carry  out  those  calculations  accurately.  By  exchanging 
information  in  the  form  of  joint  compilations,  tables  and  studies,  insurers  are  able  to 
collate  more  reliable  statistics  and  develop  a  better  understanding  of  the  evolution  of 
insured risks. This understanding allows them to rate risks more reliably and, as a result, 
to  reduce  mark-ups  and  ultimately  the  prices  paid  by  consumers.  This  also  makes  the 
exchange  of  past  statistical  data  crucial  to  the  efficient  functioning  of  the  insurance 
sector.  Furthermore,  by  undertaking  those  studies  jointly,  insurers  improve  the 
knowledge of the future development of the risks in question.  

(128) Moreover, the implementation of the Solvency II Directive, which sets out stricter risk 
capital  requirements  and  obliges  (re)insurers  to  calculate  best  estimates  of  liabilities, 
reinforces  the  need  for  insurers  to  maintain  more  precise  and  accurate  information  on 
risks in order to calculate sufficient reserves in their balance sheets.  

(129) However, there is at present a category of information exchange covered by the IBER 
for  which  the  insurance  sector  does  not  possess  distinct  characteristics  setting  it  apart 
from  other  sectors.  The in-depth  analysis  of  the current  provisions  of  the  exchange  of 
information exemption shows that one of the categories of agreements exempted under 
this header, which refers to “the carrying out of studies on the profitability of different 
types  of  investments  (made  by  insurers)”48,  is  at  odds  not  only  with  the  powers 
conferred  by  the  1991  Empowering  Regulation,  but  also  with  the  justification  put 
forward  by  the  IBER  itself  for  exempting  the  exchange  of  information.  The  1991 
Empowering  Regulation  allows  the  Commission  to  adopt  an  exemption  in  this  field 
only with respect to agreements on “the establishment of common risk premium tariffs 
based on collectively ascertained statistics or the number of claims”49.  

(130) For  its  part,  the  IBER  justifies  “the  collaboration  …  allowing  the  calculation  of  the 
average cost of covering a specified risk in the past … to improve the knowledge of the 
risks  and  facilitate  the  rating  of  risks  for  individual  companies”50.  The  profitability  of 
the  future  investments  an  insurer  could  make  is  an  element  of  the  forward-looking 
financial decisions it has to adopt, which are entirely unrelated to the knowledge of an 
insured  risk  or  to  the  formulation  of  risks  premium  tariffs.  In  fact,  the  process  of 
identifying, evaluating and selecting between investment opportunities for the free cash-
flows a company generates is not exclusive to the insurance sector but common to all 
undertakings regardless of the sector in which they operate. Furthermore, such decisions 

48  
49  
50  

Article 2 (b), last sentence, of the IBER. 

Article 1, 1(a) of Council Regulation 1534/1991. 

Recital (9) of the 2010 IBER. 

29 

 
 
                                                      
should  be  made  independently;  one  of  the  most  important  pillars  of  the  competitive 
edge of any undertaking lies in making better investment decisions than its competitors. 
For  these  reasons,  it  does  not  appear  at  this  stage  that  the  insurance  sector  presents 
characteristics inherently different from other sectors as to create an enhanced need for 
cooperation  between  market  participants  in  the  field  of  studies  on  the  profitability  of 
their different types of investment. The adoption by the Commission of a sector-specific 
exemption in the field of profitability studies appears irrelevant.  

6.1.2 Common coverage of certain types of risks (Pools)  

(131) As far as the exemption for pools is concerned, the evidence gathered under the Review 
confirms that insurers often need to cooperate in order to cover certain large risks. This 
is the case for large risks, such as terrorism, environmental disasters or nuclear, where 
risk size and probability dispersion render them  more difficult or  impossible to  insure 
individually. This is opposed to smaller, conventional and more easily predictable risk 
classes,  such  as  motor  vehicle  and  life  insurance,  where  insurers  usually  underwrite 
risks independently. In case the nature of the risk is such that one insurer alone cannot 
provide the necessary capacity, co(re)insurance offers a solution by allowing insurers to 
cover a sufficient number of risks so that the risk profile of the portfolio corresponds to 
the totality of the relevant risk category.  

(132) Nevertheless, so far indications are that, over the last decade, the insurance market has 
developed  more  competitive  ways 
to  co(re)insure  risks,  such  as  broker-led 
co(re)insurance  or  line  slips.  These  are  viable  alternatives  to  the  institutionalised 
co(re)insurance  pools  that  the  IBER  exempts.  In  addition,  insurance  is  not  the  only 
sector  where  undertakings  tend  to  cooperate  on  specific  large  projects  to  spread  the 
costs  and  risks  involved  (e.g.  for  large  construction  projects).  However,  in  sum,  this 
finding  may  not  entirely  negate  the  existence  of  a  more  general  enhanced  need  to 
cooperate in order to cover large, unconventional risk categories in the insurance sector. 

6.1.3 Conclusion 

(133) Accordingly,  on  the  basis  of  the  evidence  before  the  Commission,  it  appears  at  this 
stage  that,  in  the  two  areas  covered  by  the  IBER  exemptions:  information  exchange 
(with  the  exception  of  the  joint  carrying  out  of  studies  on  profitability)  and  joint 
co(re)insurance, the insurance sector presents characteristics different from other sectors 
such that they lead to an enhanced need for cooperation between market participants.  

(134) Therefore, the question whether there are objective reasons to keep these exemptions in 
place  finally  depends  on  whether  they  need  to  be  protected  by  an  exceptional  legal 
instrument such as a BER, or if appropriate guidance would suffice.  

30 

 
 
6.2  Necessity of a BER 

6.2.1 Exemption for Compilations, Tables and Studies 

(135) Concerning  the  exchange  of  information  on  risks  between  (re)insurers,  after  the  entry 
into  force  of  the  IBER  the  Commission  adopted  new  Horizontal  Guidelines  with  a 
specific  chapter  on  information  exchange  agreements.  Although  this  chapter  does  not 
contain concrete examples for the insurance sector, the principles set out therein provide 
a good basis to carry out a self-assessment of the admissibility of the joint creation and 
distribution  of  compilations,  tables  and  studies.  The  Horizontal  Guidelines  explicitly 
recognise  that:  “Exchanges  of  genuinely  aggregated  data,  where  the  recognition  of 
individualized company level information is sufficiently difficult, are much less likely 
to lead to restrictive effects on competition than exchanges of company level data”51.  

(136) Furthermore, the Horizontal Guidelines also explain that: “Collection and publication of 
aggregated market data (such as sales data, data on capacities or data on costs of inputs 
and  components)  by  a  trade  organisation  or  market  intelligence  firm  may  benefit 
suppliers and customers alike by allowing them to get a clearer picture of the economic 
situation of a sector. Such data collection and publication may allow market participants 
to make better-informed individual choices in order to adapt efficiently their strategy to 
the  market  conditions.  More  generally,  unless  it  takes  place  in  a  tight  oligopoly,  the 
exchange  of  aggregated  data  is  unlikely  to  give  rise  to  restrictive  effects  on 
competition”52. 

(137) In addition, the Horizontal Guidelines acknowledge that: “Exchange of consumer data 
between companies in markets with asymmetric information about consumers can also 
give rise to efficiencies. For instance, keeping track of the past behaviour of customers 
in terms of accidents or credit default provides an incentive for consumers to limit their 
risk exposure. It also makes it possible to detect which consumers carry a lower risk and 
should benefit from lower prices. In this context, information exchange can also reduce 
consumer lock-in, thereby inducing stronger competition. This is because information is 
generally specific to a relationship and consumers would otherwise lose the benefit from 
that information when switching to another company. Examples of such efficiencies are 
found  in  the  banking  and  insurance  sectors,  which  are  characterised  by  frequent 
exchanges of information about consumer defaults and risk characteristics”53.  

(138) These  principles mirror those in  the IBER  for exempting the exchange of information 
between insurers. Therefore, in case the IBER lapses, the Commission has already made 
public  equivalent  general  principles  capable  of  guiding  insurers  in  self-assessing  the 
admissibility  of  their  cooperation;  guidance  that  the  Commission  could  complement 

51  
52  
53  

Paragraph 89 of the Horizontal Guidelines. 

Paragraph 89 of the Horizontal Guidelines. 

Paragraph 97 of the Horizontal Guidelines. 

31 

 
 
                                                      
where  necessary.  For  the  same  reason,  a  compliance  assessment  by  the  national 
insurance  federations,  which  are  at  present  the  main  intermediaries  for  compiling  and 
disseminating  risk  data,  under  the  principle  of  the  Horizontal  Guidelines  should  not 
bring  about  a  significant  change  in  compliance  costs,  as  they  are  currently  already 
obliged  to  ensure  that  the  collection  and  dissemination  of  risk  data  in  the  form  of 
compilations, tables and studies complies with the same substantive provisions as those 
contained in the IBER.  

(139) Also,  in  terms  of  incentives,  the  alleged  risk  of  diminished  levels  of  collaboration  in 
joint  compilations,  tables  and  studies  in  the  event  that  the  exemption  is  not  renewed 
appears  to  be  very  low.  If  the  cooperation  in  this  area  is  as  indispensable  to  the 
insurance  industry  as  is  maintained  in  the  public  consultation  by  all  its  members,  it 
would  be  highly  unlikely  that  the  argued  essential  need  for  cooperation  would  be 
overridden  by  the  marginal  reduction  in  legal  certainty  that  the  removal  of  the 
exemption could effect.  

(140) Therefore, at present the continued existence of a BER for joint compilations, tables and 
studies  is questionable, notably when there are alternative guidance instruments (such 
as  a  communication)  that  could  be  used  to  complement  the  relevant  provisions  of  the 
Horizontal  Guidelines,  if  appropriate.  Consequently,  it  is  questionable  that  a  specific 
BER  is  still  the  most  efficient  means  of  ensuring  the  proper  functioning  of  the  sector 
and  fostering  certain  types  of  information  exchanges  which  provide  benefits  for  the 
consumer while ensuring effective protection of competition.  

6.2.2 Common coverage of certain types of risks (Pools)  

(141) The submissions on market trends collected during the Review indicate that cooperation 
between (re)insurers in order to co(re)insure risks is at present very heterogeneous and 
by no means reliant on the institutionalised pools exempted by the IBER. The Review 
shows  an  important,  and  growing,  market  trend  away  from  institutionalised  pools 
formed on the insurers’ own initiative, towards more competitive ways of cooperation 
between (re)insurers.  

(142) These 

are 

led 

frequently 

alternative 

arrangements 

co(re)insurance 

by 
intermediaries/brokers  that  on  their  own  initiative,  or  at  the  request  of  a  customer  or 
insurer, build customer-specific insurance lines or insurance packages, often by means 
of tendering. Unlike the traditional institutionalised pools, these more competitive ways 
of co(re)insuring are not covered by the IBER, although they are more likely to produce 
shared efficiencies on account of their characteristics. Such alternative co(re)insurance 
arrangements  put  insurers  in  competition  with  one  another  to  different  degrees 
the 
depending  on 
intermediary/broker  or  customer  in  the  course  of  the  negotiations.  By  contrast,  the 
current IBER pools’ exemption applies only to the most restrictive agreements, whereby 
competitors  agree  to  align  prices  or  important  components  thereof.  There  now  exist 

level  of  coordination  between 

insurers  permitted  by 

the 

32 

 
 
alternatives to the pools exempted by the IBER, and consequently their positive effects 
cannot be presumed in all cases.  

(143) Hence,  following  an  in-depth  assessment  of  the  information  gathered  in  the  course  of 
the Review, the pools' exemption may not be in line with the strict conditions required 
for  the  creation  of  an  exceptional  instrument  such  as  a  BER.  According  to  this 
restrictive approach, a BER for a certain category of agreements is only justified when it 
can be presumed with sufficient certainty that this category genuinely produces benefits 
that are shared in fair terms with consumers. The exempted restrictions also have to be 
indispensable,  meaning  that  it  would  be  impossible  to  achieve  the  objectives  of  the 
cooperation  in  a  manner  which  is  less  restrictive  of  competition.  This  delicate 
proportionality assessment can only be achieved by means of a thorough individual self-
assessment of the functioning of the pool, as well as of its effects.  

(144) Moreover, the Review also shows that there are serious concerns about the efficacy of 
adopting a BER for pools in the insurance sector. There is a rapid development in the 
insurance market of heterogeneous and complex forms of cooperation for co(re)insuring 
risks.  The  complexity  is  further  compounded  by  the  intrinsic  difficulties  of  defining 
relevant  markets  in  insurance  on  account  of  the  complicated  analysis  of  supply-side 
substitutability for intangible goods such as insurance. This has the effect of rendering 
any possible definition of scope for the exemption in terms of type of cooperation and 
delimitation  of  market  share  thresholds  ambiguous  and  uncertain.  Actually,  the 
observations  of  some  stakeholders  show  that  the  definition of  'pool'  is  ambiguous  and 
imprecise, or that it is unclear how to define the relevant markets in insurance. Adopting 
an  exemption  which  is  difficult  to  use  because  the  two  elements  that  are  decisive  for 
applying it are uncertain, raises serious doubts about its suitability and existence.  

(145) Furthermore, the evidence gathered in the Review so far indicates that  Member States 
authorities  are  experiencing  difficulties  in  enforcing  their  powers  in  the  areas  covered 
by the IBER exemptions. NCAs that act on the basis of their extensive experience and 
insight  into  the  competitive  environment  within  their  jurisdictions  are  finding  their 
decisions  annulled  by  the  national  courts  which  keep  referring  to  the  IBER. 
Furthermore, national courts also struggle to balance the legal and economic realities of 
any given case with the IBER provisions.  

(146) This  problem  mainly  originates  in  the  previously  discussed  intrinsic  difficulties  of 
developing  exemption  conditions  capable  of  encompassing  the  wide  variety  of 
nationally  prevailing  market  conditions  in  the  insurance  sector.  The  NCAs  are  well 
placed  to  evaluate  the  arrangements  operating  within  their  jurisdiction,  and  the 
effectiveness  of  their  assessment  would  be  greatly  enhanced  in  the  absence  of  an 
instrument as prescriptive and inflexible as a BER. 

(147) Consequently,  the  IBER  appears  to  hinder  the  national  authorities’  ability  to  fight 
agreements  in  the  insurance  sector  that  produce  adverse  effects  for  competition  and 
consumers. In the absence of an IBER, NCAs would gain the power to carry out a more 

33 

 
 
refined  self-assessment  of  individual  cases  within  their  jurisdictions  that  takes  into 
account the unique characteristics of the insurance sector in the relevant Member State. 
The  imposition  of  EU-wide  harmonisation  in  the  rigid  form  of  a  BER  is  possibly 
counterproductive.  

7 

CONCLUSIONS 

(148) Accordingly  for  the  reasons  set  out  above,  the  strict  conditions  for  the  creation  of  a 
sector-specific  BER  with  respect  to  the  compilation  and  distribution  of  joint 
calculations, tables and studies, and the co(re)insurance of certain specific types of risks 
seem no longer to be met, although there are indications that the insurance sector may 
have an enhanced need for collaboration in relation to these types of agreements.  

(149) With respect to the compilation and distribution of joint calculations, tables and studies, 
the Commission’s view at this stage is that the functioning of the insurance industry no 
longer  appears  to  necessitate  the  existence  of  an  IBER.  The  Horizontal  Guidelines 
already offer guidance for the purpose of self-assessing the admissibility of this type of 
cooperation. Likewise, the Commission can provide, if necessary, specific guidance to 
the insurance industry, which is an alternative and far more flexible instrument that can 
be more easily adapted to changing circumstances.  

(150) With  respect  to  co(re)insurance  pools,  it  is  questionable  whether  the  renewal  of  the 
IBER  is  justified  because  of  its  limited  use  and  relevance,  and  concrete  risks  of 
misapplication. In order for an exemption from competition rules of this kind to be put 
in  place  the  Commission  must  with  sufficient  certainty  presume  that  the  type  of 
cooperation covered by the exemption satisfies all the conditions necessary for a finding 
of  compatibility  with  the  internal  market,  especially  in  terms  of  effectiveness  and 
efficiency. At this stage that no longer seems to be the case since the insurance market 
currently  does  provide  a  heterogeneous  and  less  restrictive  set  of  alternatives  to  pools 
for the purpose of co(re)insuring risks, potentially at more competitive conditions. 

(151) Thus,  a  case-by-case  self-assessment  of  the  arrangements  for  the  setting-up  and  the 
functioning  of  each  individual  co(re)insurance  pool,  is  the  best  way  to  ensure  that 
co(re)insurance pools produce net positive effects for consumers and competition within 
the meaning of Article 101(3) TFEU, following the rules set in Horizontal Guidelines, 
which is the standard in other sectors.  

(152) It  should  be  noted  that  the  lapsing  of  the  exemption  for  pools  does  not  mean  that  the 
pools are prohibited, but just that their assessment under competition rules will be done 
according to the same standard rules applying to other sectors.  

(153) Furthermore,  both  the  exemption  on  information  exchange,  as  well  as  that  for  pools, 
appear to be at odds with the discontinuation of the notification system. Since 2004 the 
modernised  competition  enforcement  system  has  established  general  horizontal 
assessment frameworks, rather than relying on sector-specific rules.  

34 

 
 
(154) In the event that the IBER exemptions are not renewed, the Commission might decide 
to  adopt  a  new  guidance  (in  place  of  the  current  Communication,  which  will  become 
obsolete once the current IBER Regulation lapses) providing additional guidance on the 
principles  of  self-assessment  for  those  agreements  that  will  no  longer  benefit  from  a 
BER.  

(155) Following its publication, the Commission intends to organise a stakeholder discussion 

on the preliminary conclusions of this Report.  

(156) The  Commission  also  intends  to  publish  and  discuss  with  stakeholders,  where 
necessary,  the  conclusions  of  the  two  studies  on  a  series  of  issues  pertaining  to  the 
functioning of the IBER that are currently underway.  

35 

 
 
ANNEX I 
QUESTIONNAIRE TO NATIONAL 
COMPETITION AUTHORITIES 

QUESTIONNAIRE TO NCAS – REVIEW OF IBER 

I. Introduction 

Commission Regulation (EC) of 24 March 2010 on the application of Article 101(3) of the Treaty to 
certain categories of agreements, decisions and concerted practices in the insurance sector, OJ L 83, 
30.3.2010 (the "IBER") exempts certain types of agreements between insurers from the application of 
Article 101 (1) of the Treaty on the Functioning of the European Union ("TFEU") subject to certain 
conditions. The exemption covers two types of agreements: 

I. Agreements with respect to joint compilations, joint tables and studies; 
II. Common coverage of certain types of risks (co (re)insurance pools). 

As explained in the cover letter, the IBER expires on 31 March 2017 and therefore the Commission is 
now gathering views and market information that will enable it to carry out its review. We would be 
grateful if you could answer the below questions by sending an e-mail to: 

COMP-ECN-IBER-REVIEW@ec.europa.eu 

by 04 April 2014. 

In the communication with the Commission please use the following heading: 

"HT.4012 Insurance BER Review" 

If you have questions of an administrative nature, please contact the case secretary: 

Ms Tamires FERREIRA – DUTRA 
Tel.: +32.2.298.67.91 
E-mail: tamires.ferreira-dutra@ec.europa.eu 

If you have any further questions on the substance of this request, please contact: 

Ms Eva KLEIBER 
Tel: +32.2.295.00.10 
E-mail: eva-maria.kleiber@ec.europa.eu 

Ms Michalina ZIEBA 
Tel.: +32.2.297.24.38 
E-mail: michalina.zieba@ec.europa.eu 

Mr Ivan ZALOGUIN 
Tel.: +32 229-84603 
E-mail: ivan.zaloguin@ec.europa.eu 

1 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Your replies to the following questions as well as any other thoughts and information with regard to 
functioning of the insurance markets are of key importance to the IBER review exercise and would be 
extremely helpful. 
We would be grateful to receive as detailed feedback as possible and propose to correspond in English. 

II. Contact details 

Please  provide  name,  address,  telephone  and  fax  number  of  the  colleague  responsible  for  the 
preparation  of  this  answer  as  we  might  contact  this  person  for  further  clarifications  or  additional 
information. 

We would also welcome this colleague's participation in the ECN Subgroup on Insurance which we 
intend to hold in the second quarter in 2014. 

Contact person: 
Function: 
Telephone: 
Postal address: 
E-mail: 

III. Questions 

a) Application of the IBER in practice 

1. Did you have any cases (ex officio or complaints) where the application of the IBER has been an 
issue (for example as a defence)? 

2. Is there any relevant case law from the national courts applying the IBER? 

3.  In  your  experience,  which  of  the  below  mentioned  exemptions  are  applied  by  the  (re)insurance 
undertakings  or  their  associations  in  your  Member  State  in  their  daily  compliance  practice?  Please 
give specific case examples for each of the two types of block-exempted agreements: 

(i) Exemption of agreements with regard to joint compilations, joint tables and studies: 

(ii)  Exemption  of  agreements  with  regard  to  common  coverage  of  certain  types  of  risks 
["co(re)insurance pools"]: 

4. In your experience, in which way does the IBER promote consumers´ interests? Please reason your 
answer and give case-specific examples. 

5. Does the IBER simplify the application of the competition rules in your daily enforcement practice? 
Please reason your answer and give case-specific examples. 

6.  In  your  practical  experience,  does  the  IBER  provide  substantial  legal  certainty  to  (re)insurance 
undertakings in addition to the (directly applicable) exemption of Article 101(3)? Please reason your 
answer. 

7. Have you been presented with specific evidence confirming that the (re)insurers' cooperation in a 
given  pool  covered  by  the  BER  has  generated  substantial  benefits  for  the  consumer  welfare,  for 
example  by  facilitating  market  entry  of  small  and  medium  sized  (re)insurance  undertakings  or  the 
cross-border  or  cross-market  entry  of  (re)insurance  undertakings  or  by  leading  to  cost  savings  for 
either: 

2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(i) (re)insurers? 

(ii) consumers? 

Please reason your answer and provide examples and data, if available. 

8. In your experience, has cooperation in the compilation of information between (re)insurers covered 
by  the  IBER  proven  to  be  significantly  beneficial,  e.g.  by  improving  the  knowledge  of  risks,  by 
facilitating market entry, by leading to cost savings for: 

(i) (re)insurers? 

(ii) consumers? 

(iii) others (please specify) 

Please reason your answer. 

9.  In  your  view,  does  the  existence  of  the  IBER  produce  negative  effects  on  competition  and/or 
consumer welfare? Please reason your answer. 

10. Are you aware of situations where an allegedly block-exempted agreement or practice would have 
violated  one  or  more  conditions  for  exemption  set  out  in  Articles  3  and  7  IBER  (for  instance 
standardisation of products, information exchange or collusion on commercial premiums, allocation of 
markets and customers, limits to output or sales)? 

b)  Study  on  co  (re)-insurance  pools  and  on  ad-hoc  co  (re)-insurance  agreements  on  the 
subscription market 

on 

In 2013 the Commission published a study on co (re)-insurance pools and on ad-hoc co (re)-insurance 
agreements 
(http://bookshop.europa.eu/is-
bin/INTERSHOP.enfinity/WFS/EU-Bookshop-Site/en_GB/-/EUR/ViewPublication-
Start?PublicationKey=KD3113422). It provides among others an overview of co (re)-insurance pools 
after the adoption of the new BER. Following the study the Commission held a workshop in March 
2013 where the findings of the study were presented and discussed. 

subscription 

market 

the 

Below we present some of the findings of the study and the workshop concerning the BER and would 
appreciate your feedback on them: 

11. According to the study "Overall, awareness of the Insurance BER appeared mixed, though those 
pools that had reassessed their position since the issue of the new BER did not report a change in their 
compliance status". 

(i) In your view are the (re)insurance undertakings/ (re)insurance associations in your country familiar 
with the IBER? 

(ii) In your experience, is the IBER used as a blanket exemption? 

12. The study reports that "There are uncertainties as to definition, with a risk of mismatch between 
industry  perceptions  of  pools  and  the  intentions  of  the  BER,  which  may  indicate  a  need  for 
clarification: these affect both the identification of pools themselves and the definition of the relevant 
market. There are also questions as to the boundaries of the definition where pool-like arrangements 

3 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
are set up by parties other than insurers, particularly intermediaries, which may warrant study outside 
the scope of this report." 

Do you share this view and why? If so, how could the following be improved? 
(i) definition of "pools"; 

(ii) determination of the relevant market; 

(iii) calculation of the market shares. 

13. In the workshop some market participants took the view that the definition of "new risk" in the 
BER is too narrow1. 

-What are you views on this matter? 

c) Prospective assessment 

14.  Do  you  think  that  a  sector-specific  regulation  such  as  the  IBER  is  necessary  for  the  insurance 
sector?  Which  distinct  features  of  the  insurance  market  make  a  sector-specific  block  exemption 
regulation  necessary,  in  the  current  enforcement  system  where  the  exemption  of  Article  101(3)  is 
directly applicable by virtue of Article 1 of Council Regulation (EC) No 1/2003? Please explain. 

15.  Do  you  think  that  the  IBER  could  be  replaced  by  another  Commission  instrument  such  as 
guidelines, for example by incorporating the content in the  Guidelines on the applicability of Article 
101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, 
OJ C 11, 14.1.2011 or by a Communication? 

16. Which one of the following options do you think would be preferable and why: 

(i) renewal of the BER (in principle with the current content); 

(ii) only partial renewal (which exemption would you renew, which not?); 

(iii) non-renewal? 

Please provide reasons for your assessment. 

d) Other information/views 

17. Please include here any other information and views you consider relevant to the assessment of the 
functioning of the Regulation. Please attach here any relevant documents, e.g. complaints, decisions, 
market studies, feedback from market participants. 

Thank you for your co-operation! 

1 According to Article 1 point 6 of IBER "new risks" mean: 
(a) risks which did not previously exist, 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; or 
(b) in exceptional cases, risks the nature of which has, on the basis of an objective analysis, changed so materially that it is not possible to 
know in advance what subscription capacity is necessary in order to cover such a risk. 

4 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
ANNEX II 
PUBLIC CONSULTATION 
QUESTIONNAIRE 

Consultation on the Insurance Block Exemption Regulation 

1 Context 

1.1 Aim of the public consultation 

The  Insurance  Block  Exemption  Regulation[1]  ("IBER")  is  a  sector-specific  legal  instrument  that  allows 
(re)insurers  to  benefit  from  an  exemption  to  the  prohibition  of  anti-competitive  arrangements  laid  down  in 
Article  101  (1)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU).  At  present,  the  exemption 
covers two types of agreements between (re)insurance undertakings: 

1. Agreements with respect to joint compilations, joint tables and studies; and 
2. Common coverage of certain types of risks [co (re)insurance pools]. 

The  insurance  sector  is  one  of  three  sectors[2]  that  still  benefits  from  a  block  exemption  regulation,  since  the 
concept  of  the  direct  applicability  of  the  exemption  of  Article  101  (3)  TFEU  was  introduced  with  Council 
Regulation 1/2003. The IBER expires on 31 March 2017 and the Commission will consider whether any parts of 
it would merit a renewal. In this regard, the Commission is required to submit a report on the functioning and the 
future of the IBER to the European Parliament and the Council by March 2016. The Commission is therefore 
gathering views and market information to carry out its assessment. 

[1]  Commission  Regulation  (EU)  No  267/2010  of  24  March  2010  on  the  application  of  Article  101(3)  of  the 
Treaty on the Functioning of the European Union to certain categories of agreements, decisions and concerted 
http://eur-
practices 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:083:0001:0007:EN:PDF  

insurance,  OJ 

30.3.2010, 

available 

83, 

the 

in 

at 

p. 

1, 

L 

[2]  The  two  other  sectors  are  the  maritime  liner  shipping  and  the  motor  vehicle  distribution  sector,  cf. 
Commission  Regulation  (EC)  No  906/2009  of  28  September  2009  on  the  application  of  Article  81  (3)  of  the 
Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies 
(consortia) 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:256:0031:0034:EN:PDF,  OJ  L  256,  29.09.2009,  p. 
31, and Commission Regulation No 461/2010 of 27 May 2010 on the application of Article 101(3) of the Treaty 
on the Functioning of the European Union to categories of vertical agreements and concerted practices in the 
motor 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:129:0052:0057:EN:PDF OJ L 129, 
28.05.2010, p. 52 

available 

available 

vehicle 

sector 

at 

at 

1.2 Target audience of this public consultation 

To that purpose the Commission has drawn up the enclosed questionnaire and invites all stakeholders to submit 
all  relevant  information  on  the  functioning  of  the  IBER,  as  well  as  their  views  on  whether  the  Commission 
should renew any of the IBER provisions in a new block exemption regulation. Input from stakeholders will be a 
key  element  for  the  Commission's  assessment.  The  Commission  welcomes  comments  in  particular  from 
(re)insurance  undertakings,  industry  associations,  insurance  intermediaries,  public  authorities,  consumer 
organisations and customers, as well as competition practitioners, researchers and think tanks. Comments from 
other stakeholders who have direct experience with the application of the IBER are also welcome. 

1.3 Submission of the contribution 

You are invited to reply to this public consultation preferably by answering the online questionnaire. To facilitate 
the analysis of your replies we would kindly ask you to keep your answers concise and to the point - 

1 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Not  all  questions  need  to  be  answered.  You  may  include  documents  and  URLs  for  relevant  online  content  in 
your replies. 

Alternatively, you can send your contribution by post to the following address: 
European Commission 
Directorate-General for Competition 
(for the attention of the Antitrust Registry) 
1049 Bruxelles/Brussel 
BELGIQUE/BELGIË 

using the following reference : "HT.4012 Insurance BER Review". 

For your information, you have the possibility to save your questionnaire as "draft" and continue replying later. 
In order to do this you have to click on "Save as Draft" (see end of questionnaire) and save the new link that you 
will receive from the EUSurvey tool on your computer. Please note that without this new link you will not be 
able to access again and continue replying to your questionnaire. 

1.4 Confidentiality 

In the responses to this questionnaire the identity of the stakeholder should be clearly indicated in the "Profile" 
section. If available, the ID number of the EU Transparency Register should also be provided (For registration 
please follow this link http://ec.europa.eu/transparencyregister/info/homePage.do ). The responses received will 
be published by the Commission on the internet, unless they are claimed to be treated as "anonymous" or clearly 
labelled "confidential". In case a stakeholder claims anonymity or confidentiality, a non-confidential version of 
the response should be provided for publication. 

Protection of Personal Data http://ec.europa.eu/geninfo/legal_notices_en.htm#personaldata 

Privacy statement: 
Privacy statement.pdf 

1.5 Deadline 

The consultation runs from 5 August 2014 to 4 November 2014. 

Nothing in this questionnaire may be interpreted as stating an official position of the European Commission. 

2. Questionnaire 

2.1 Stakeholder Profile 

1. You are a/an: 

Insurance undertaking 
Reinsurance undertaking 
Industry association 
Insurance intermediary 
Consumer organisation 
Competition practitioner 
Public authority 
Researcher 
Citizen 
Insured entity 
Other 
Please specify briefly: 

2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2. Contact details 
Name: 
ID in the EU Transparency Register: 
Your identification number should be formed of 11 or 12 digits, followed by a dash and then 2 digits. 
Contact person: 
Telephone: 
Postal address: 
E-mail: 

3. Are you a Small or Medium sized Enterprise (SME)? 
Please note: The category of micro, small and medium-sized enterprises (SMEs) is made up of enterprises which employ fewer 
than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not 
exceeding EUR 43 million. 

For further information regarding the definition of enterprise, the calculation of staff headcount and the financial thresholds, please 
see the Commission Recommendation concerning the definition of micro, small and medium-sized enterprises.[3] 

[3] Commission Recommendation (EC) No 361/2003 of 6 May 2003 concerning the definition of micro, small and medium-sized 
enterprises, Council and Commission documents OJ L 124, 20.5.2003, p. 36, available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:124:0036:0041:EN:PDF  
Yes 
No 
N/A 

4.  Do  you  meet  the  requirements  of  Article  4  of  Directive  2009/138[4]  to  be  excluded  from  the  Solvency  II 
regime? 
[4] Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the 
business of Insurance and Reinsurance (Solvency II) OJ L 335, 17.12.2009, p. 1, available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:335:0001:0155:EN:PDF  
Yes 
No 
N/A 

5. Are you active in more than one State within the EU and/or the EEA? 
Yes 
No 
N/A 
Please specify in how many States and in which: 

6. Which services do you provide? 
a) Non-life insurance 
b) Life insurance 
c) Reinsurance 
d) Other 
Please Specify what other services: 

II 

Directive 

Please specify your services in non-life insurance (Classes of non-life insurance as indicated in Annex I of the 
Slovency 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:335:0001:0155:EN:PDF : 
Land vehicles 
Accident  
Ships 
Railway rolling stock  
Other damage to property 
Goods in transit   
Liability for ships 
Motor vehicle liability  
Suretyship 
General liability   
Assistance 
Miscellaneous financial loss  
Other information: 
Please specify your services in life insurance (Classes of life insurance as indicated in Annex II of the Slovency 
II Directive 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:335:0001:0155:EN:PDF%20) 

Sickness  
Aircraft   
Fire and natural forces  
Aircraft liability   
Credit    
Legal expenses    

http://eur-

3 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2.2 Market Developments 

7. How would you describe the current competitive situation in the (re) insurance markets with particular regard 
to the segments where you operate/are concerned with? What are the changes in market structure over the last 
ten years? Have there been any new entries? Are they greenfield? Have they been facilitated by the IBER? 
If you have any further information, please upload it here: 

8. Has there been any innovation or market development in the insurance sector in the last ten years that could 
have had an impact on the (re)insurers' cooperation in the area of joint studies, tables and compilations? 
If you have any further information, please upload it here: 

9. Has there been any innovation or market development in the insurance sector in the last ten years that could 
have had an impact on the (re)insurers' cooperation in the area of cooperation in (re)insurance pools? 
If you have any further information, please upload it here: 

10.  Has  your  business  strategy  or  the  way  you  compete  (on  price,  quality,  brand,  coverage,  etc)  in  the 
(re)insurance sector evolved in the last ten years and how? If you are not an (re)insurance undertaking: Are you 
aware  of  any  developments  in  the  conduct  of  (re)insurance  undertakings  during  the  last  ten  years  which  are 
relevant for the review of the IBER? Please describe and provide examples. 
If you have any further information, please upload it here: 

11. In your view, did the previous IBER[5] or does the current IBER contribute to the evolution described under 
question (10)? Please state the reasons for this. 
[5] Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain 
categories of agreements, decisions and concerted practices in the insurance sector (OJ L 53/8 of 28.2.2003) 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:053:0008:0016:EN:PDF%20  
If you have any further information, please upload it here: 

12. In your view, did the previous IBER[6] or does the current IBER hamper the evolution described under 
question (10)? Please state the reasons for this. 
[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 (OJ L 53/8 of 28.2.2003) 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:053:0008:0016:EN:PDF%20 
If you have any further information, please upload it here: 

13.  Do  you  consider  that  the  existence  of  the  IBER  has  improved  your  capability  to  accurately  price  risks  or 
allowed  you  to  enter  any  specific  insurance  segment  in  which  you  would  otherwise  not  be  active?  Has  the 
existence  of  the  IBER  provided  you  with  a  better  footing  to  penetrate  other  Member  States’  markets?  Please 
illustrate your reply with case-specific examples. 
If you have any further information, please upload it here: 

14. Are there in your view markets that would not exist without the exemptions foreseen in the IBER? 
Yes 
No 
Don't know 
Which ones? 
If you have any further information, please upload it here: 

15. Would premiums be appreciably higher without the IBER exemptions? 
Yes 
No 
Don't know 
Please reason your answer and provide examples and data to the extent available. 
If you have any further information, please upload it here: 

16. Would customer choice and supply diversity be appreciably reduced without the IBER exemptions? 
Yes 
No 
Don't know 

4 

 
 
 
 
 
 
 
 
 
 
 
 
Please reason your answer and provide examples and data to the extent available. 
If you have any further information, please upload it here: 

17. Do you consider that the IBER protects competition and effective innovation in the insurance sector or not? 
In your view, does the IBER succeed in creating/maintaining a level playing field? Please reason your answer 
and give case-specific examples if any. 
If you have any further information, please upload it here: 

18.  Do  the  recent  developments  in  competition  rules,  e.g.  the  Commission  Horizontal  Guidelines[7],  and  the 
recent  developments  in  the  relevant  national/EU  case-law  affect  your  commercial  behaviour?  Please  describe 
and give case-specific examples. 
[7] Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation 
agreements, Council and Commission documents OJ C 11, 14.01.2011, p. 1, available at 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:011:0001:0072:EN:PDF%20%20 
If you have any further information, please upload it here: 

2.3 Application of the IBER in practice 

19. Do you make use of the exemptions foreseen in the IBER? 
Yes 
No 
N/A 
Please specify whether it concerns: 
Exemption of agreements with regard to joint compilations, joint tables and studies 
Exemption  of  agreements  with  regard  to  common  coverage  of  certain  types  of  risks  ("co(re)insurance 
pools") 
Please give case- specific examples on how you make use of the respective exemptions. 
If you have any further information, please upload it here: 

20. Does the IBER affect the business conduct in your daily practice and how? Please describe and give case-
specific examples. 
If you have any further information, please upload it here: 

21. Have you been involved in litigation and/or competition investigations concerning the IBER? Please specify 
and provide any relevant decisions, reports or other relevant information. 
If you have any further information, please upload it here: 

on 

22. Study on co (re)-insurance pools and on ad-hoc co (re)-insurance agreements on the subscription market: 
In  2013  the  Commission  published  a  study  on  co  (re)-insurance  pools  and  on  ad-hoc  co  (re)-insurance 
2014 
agreements 
(http://ec.europa.eu/competition/sectors/financial_services/KD04147 
07ENN.pdf). It provides among other an overview of co (re)-insurance pools after the adoption of the new BER. 
Following  the  study  the  Commission  held  a  workshop  in  March  2013  where  the  findings  of  the  study  were 
presented and discussed. 

subscription 

edition 

market 

new 

and 

the 

in 

a 

Below  we  present  some  of  the  findings  of  the  study  and  the  workshop  concerning  the  IBER  and  would 
appreciate your feedback: 

The  study  reports  that  "There  are  uncertainties  as  to  definition,  with  a  risk  of  mismatch  between  industry 
perceptions of pools and the intentions of the BER, which may indicate a need for clarification: these affect both 
the identification of pools themselves and the definition of the relevant market. There are also questions as to the 
boundaries of the definition where pool-like arrangements are set up by parties other than insurers, particularly 
intermediaries, which may warrant study outside the scope of this report." 

Do you share this view or not? Please explain why and how the following could be improved? 

(i) definition of "pools"; 
(ii) determination of the relevant market. 

5 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
If you have any further information, please upload it here: 

23.  Do  you  encounter  any  difficulties  in  applying  the  IBER  rules?  Please  explain  and  provide  case-specific 
examples. 
If you have any further information, please upload it here: 

2.4 Policy options 

24. The IBER will expire on 31 March 2017. The Commission is considering the following options (the order 
does not reflect ranking or any preference): 

(i) Non-renewal of the IBER 
(ii) Partial renewal 
(iii) Renewal of the current IBER 

Which  one  of the  abovementioned  options is in  your view  justified for  objective  reasons  and  better  suited  for 
improving  the functioning of  the  insurance markets,  stimulating product innovation and increasing  consumer's 
choice in any specific insurance segment? 

Non-renewal 
Partial  renewal:  renewal  of  the  exemption  for  cooperation  in  the  area  of  joint  studies,  tables  and 
compilations 
Partial renewal: renewal of the exemption for cooperation in (re)insurance pools 
Do not have a view 
Please provide a detailed reasoned argumentation for your position. 
If you have any further information, please upload it here: 

25. Are there in your view other options which the Commission should consider? 
If you have any further information, please upload it here: 

26. The existence of a block exemption does not relieve undertakings from their obligation to carry out a self-
assessment on the admissibility of their cooperation under competition rules. 

If  the  Commission  would  not  renew  the  IBER,  insurers  would  have  to  carry  out  the  self-assessment  of  their 
cooperation  in  information  exchange  and  joint  commercialisation  under  the  principles  of  the  horizontal 
cooperation guidelines, instead of under the provisions of the IBER. 

Do  you  consider  that  sector-specific  regulation  such  as  the  IBER  is  necessary  for  the  insurance  sector?  If  so, 
which  distinct  features  of  the  insurance  market  would  make  a  sector-specific  block  exemption  regulation 
necessary  in  the  current  enforcement  system  where  Article  101  (3)  TFEU  is  directly  applicable  by  virtue  of 
Article  1  of  Council  Regulation  (EC)  No  1/2003  and  where  guidance  is  provided  by  means  of  appropriate 
horizontal instruments? 

Please reason your answer and give case-specific examples. 

If you have any further information, please upload it here: 

27.  Were  there  any  developments  over  the  last  years  that  affect  the  IBER  and  would  require  in  your  view  a 
change  in  the  rules?  What  are  these  developments  and  the  necessary  ensuing  changes?  Please  explain  and 
provide specific examples. 
If you have any further information, please upload it here: 

28.  Can  you  provide  examples  of  specific  conduct  of  undertakings  that  currently  fall  within  the  scope  of  the 
IBER but which in your view should no longer be subject to a block exemption? Please provide specific reasons 
for your answer. 
If you have any further information, please upload it here: 

29. Can you provide examples of behaviour that currently fall outside but which in your view should fall inside? 
Please provide specific reasons for your answer. 

6 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
If you have any further information, please upload it here: 

2.5 Impacts 

For  each  of  the  different  changes  in  your  conduct  and  ultimate  impacts  on  the  market  that  you  will 
identify in the answers to the questions contained in this section, please rate their importance according to 
the following scale: Slight, Moderate, Appreciable. 

30. In your view, does the IBER provide additional substantial legal certainty to (re)insurance undertakings on 
top of the (directly applicable) exemption of Article 101(3) TFEU and the guidance given by the Commission on 
horizontal cooperation agreements? 

Slight 
Moderate 
Appreciable 

Please reason your answer: 
If you have any further information, please upload it here: 

31. If the IBER was not renewed, would your compliance costs increase? 

Slight 
Moderate 
Appreciable 

Please  reason  your  answer  and  provide  a  detailed  description  of  such  costs  compared  with  those  you  already 
incur for your self-assessment, as well as an estimate of their value. 
If you have any further information, please upload it here: 

32. If the IBER was not renewed, would your compliance costs decrease? 

Slight 
Moderate 
Appreciable 

Please  reason  your  answer  and  provide  a  detailed  description  of  such  costs  compared  with  those  you  already 
incur for your self-assessment, as well as an estimate of their value. 
If you have any further information, please upload it here: 

33. What would be the changes in your conduct if the cooperation between insurers in joint compilation, tables 
and  studies  were  assessed  exclusively  under  the  provisions  on  information  exchange  of  the  Commission 
guidelines on horizontal co-operation agreements[8]? 
Please elaborate on the changes, using a separate box and rating per change you identify. 

[8]  Guidelines  on  the  applicability  of  Article  101  of  the  Treaty  on  the  Functioning  of  the  European  Union  to 
horizontal 
co-operation  agreements,  OJ  C  11,  14.01.2011,  p.  1,  available  at  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:011:0001:0072:EN:PDF%20  

Change 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Change 2 
Slight 

7 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Change 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

34.  What  would  be  the  changes  in  your  conduct  if  the  cooperation  between  insurers  in  pools  were  assessed 
exclusively under the provisions on commercialisation agreements of the Commission guidelines on horizontal 
co-operation  agreements[9]?  Please  elaborate  on  the  changes,  using  a  separate  box  and  rating  per  change  you 
identify. 

[9]  Guidelines  on  the  applicability  of  Article  101  of  the  Treaty  on  the  Functioning  of  the  European  Union  to 
co-operation  agreements,  OJ  C  11,  14.01.2011,  p.  1,  available  at  http://eur-
horizontal 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:011:0001:0072:EN:PDF%20  

Change 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Change 2 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Change 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

35. What would be the impacts on the relevant markets of the above-mentioned changes in your conduct if the 
cooperation  between  insurers  in  joint  compilation,  tables  and  studies  were  assessed  exclusively  under  the 
provisions on information exchange of the Commission guidelines on horizontal co-operation agreements[10]? 
Please elaborate on the impacts, using a separate box and rating per impact you identify. 

[10] Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to 
horizontal 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:011:0001:0072:EN:PDF%20 

co-operation  agreements,  OJ  C  11,  14.01.2011,  p.  1,  available  at  http://eur-

8 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Impact 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 2 
Slight 
Moderate 
Appreciable  

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

36. What would be the impacts on the relevant markets of the above-mentioned changes in your conduct if the 
cooperation  between  insurers  in  pools  were  assessed  exclusively  under  the  provisions  on  commercialisation 
agreements  of  the  Commission  guidelines  on  horizontal  co-operation  agreements[11]?  Please  elaborate  on  the 
impacts, using a separate box and rating per impact you identify. 

[11] Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to 
horizontal 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:011:0001:0072:EN:PDF%20 

co-operation  agreements,  OJ  C  11,  14.01.2011,  p.  1,  available  at  http://eur-

Impact 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 2 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 
9 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
37.  What  are  in  your  view  the  overall  likely  impacts  of  each  of  the  policy  options  mentioned  in  Section  "2.4 
Policy  options"  above?  Are  they  likely  to  induce  any  specific  changes  in  business  practices  or  impact 
consumers? 
Please  explain  the  likely  economic  effects  of  such  changes  in  terms  of  competition,  market  structure,  supply, 
entry  barriers,  competitiveness  of  smaller  insurers,  customers,  level  of  customer  mobility,  social  and 
environmental  impacts,  etc.  Please  elaborate  on  the  impacts,  using  a  separate  box  and  rating  per  impact  you 
identify. 

Non-renewal 

Impact 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 2 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

Partial renewal: renewal of the exemption for cooperation in the area of joint studies, tables and compilations 

Impact 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 2 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 3 
Slight 
Moderate 
Appreciable 

10 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

Partial renewal: renewal of the exemption for cooperation in the (re)insurance pools 

Impact 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 2 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

Renewal: 

Impact 1 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 2 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

Impact 3 
Slight 
Moderate 
Appreciable 

Please elaborate: 
If you wish to comment on more than 3 changes, please create a document and upload it. 

If you have any further information, please upload it here: 

11 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
38.  Please rate  the  importance  of  the  likely  overall  impact  of  each of  the  policy  options  mentioned  in  Section 
"2.4 Policy options". 

Non-renewal 
Slight 
Moderate 
Appreciable 

Partial renewal: renewal of the exemption for cooperation in the area of joint studies, tables and compilations 
Slight 
Moderate 
Appreciable 

Partial renewal: renewal of the exemption for cooperation in (re)insurance pools 
Slight 
Moderate 
Appreciable 

Renewal 
Slight 
Moderate 
Appreciable 

If you have any further information, please upload it here: 

2.6 Other information / views 

39. Please provide any other information and/or views which you consider relevant for the Commission´s review 
of  the  functioning  and  future  of  the  IBER.  Please  provide  any  relevant  documents,  e.g.  complaints,  decisions, 
market  studies,  administrative  practice,  court  cases  and/or  arbitration  awards,  scientific  research,  workshop 
reports, etc. 
If you have any further information, please upload it here: 

40.  Please  point  out  any  specific  competition  rules,  administrative  practice  or  jurisprudence  in  non-EU 
jurisdictions concerning the insurance sector which the Commission in your view should also consider. 
If you have any further information, please upload it here: 

12 

 
 
 
 
 
 
 
 
 
 
ANNEX III 
TARGETED 
QUESTIONNAIRES 

Questionnaire for Pools 

12 December 2014 

Article  5  of  the  IBER1
  exempts  the  setting-up  and  operation  of  pools  of  insurance  undertakings  and 
reinsurance undertakings to jointly cover certain types of risk under certain conditions. The scope of 
the cooperation cannot exceed the market share thresholds set out in Article 6. Furthermore, in order to 
benefit from the exemption, the relevant cooperation must also comply with the specific conditions set 
out in Article 7, which contains a blacklist of restrictions. 

I. Description of the pool 

Purpose / Main activity 

(1) What business does your pool undertake: direct insurance, re-insurance, retrocession? 

(2) What risk categories does your pool (re)insure? In what sectors of the economy? 

(3) Describe the legal form your pool takes: legal entity, contractual arrangement, other? 

(4) In what Member States is your pool active? 

(5)  Could you  please  provide  us  with  (a  list  of  your  customers)  customer  references?  (if  the  pool  is 
active in different members states, preferably with samples of customer in different member states) 

(6)  Please  provide  a  policy  sample  for  each  category  of  risk  covered  by  the  pool.  If  your  activity 
comprises both direct insurance and reinsurance, please provide at least one sample of the policy for 
each of these businesses. 

Composition 

(7) What are the conditions to become member of your pool? 

(8) Who are your members and what is their share in  the pool? Can your members be a member of 
another pool? Please indicate for each of your members the other pools in which they are involved. 

(9) Do your members provide risk cover outside the pool for the same classes of insurance? 

Functioning of the pool 

(10) What are the governing bodies/committees of your pool? What functions do they have and how 
do they operate? 

(11) How do insurable risks arrive at your pool? What, if any, role do underwriters, agents, brokers or 
other intermediaries play in relation to your pool? 

1 Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of the Treaty on the Functioning of 
the European Union to certain categories of agreements, decisions and concerted practices in the insurance sector (IBER), JO L 83, 1.  

1 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
(12) How are the capacity, scope of business and contractual conditions decided in your pool? How 
are claims dealt with (registration, handling, settlement)? On what basis are claims dealt with in this 
way? 

(13)  What  arrangements  do  you  have  with  other  pools  or  reinsurers  on  the  market  in  which  you 
operate?  Are  there  standard  arrangements  for  cooperation  between  pools  in  your  sector?  Please 
describe them and provide a copy. 

(14) Do Member State authorities intervene in the functioning of the pool? In what way? 

(15)  Could  you  please  provide  a  copy  of  the  pool's  articles  of  association,  bylaws,  shareholder  or 
membership agreements, and/or any management agreement? 

II. Relevant market 

(16) What is the position of your pool in the markets in which it operates? Is it the main participant? 
Who  are  your  main  competitors?  Has  there  been  any  important  innovation  or  development  in  your 
market in the last ten years that affects the way (re)insurers cooperate within pools? 

III. Impact of the IBER 

(17) Do you consider that your pool agreements fall outside the scope of article 101(1) TFEU? If so, 
why? 

(18) In what way do you make use of the exemptions provided by the IBER? 

(19) If not, why do you consider yourself in compliance with the conditions set out in Article 101(3)? 

(20) Do the members of your pool exchange information with insurance undertakings outside of the 
pool  under  the  IBER  exemption  for  joint  compilations,  joint  tables  and  studies?  Is  there  any 
information that is exchanged exclusively within the pool? If yes, is this information made available to 
unaffiliated insurance undertakings? Please also describe what this information consists of. 

(21) Do you encounter any difficulties in applying the IBER rules? In particular, do you encounter any 
difficulties in the application of the definition of "pools", determination of the relevant market, and/or 
the definition of "new risk"? If so, why? How could these difficulties be resolved? 

(22)  Do  you  foresee  your  continuing  reliance  on  the  IBER?  If  so,  why?  Are  there  any  market 
developments affecting the relevance and effectiveness of the IBER? In light of these developments, 
are there provisions in the IBER that should be amended? Which ones, and why? 

2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Questionnaire for Customers of coinsurance arrangements / Customers’ associations 

19 December 2014 

Article  5  of  the  IBER2
  exempts  the  setting-up  and  operation  of  groups  (  "pools")  of  insurance 
undertakings  and  reinsurance  undertakings  to  jointly  cover  certain  types  of  risk  under  certain 
conditions. 
The scope of the cooperation cannot exceed certain market share thresholds set out in Article 6. 
Furthermore, in order to benefit from the exemption the relevant cooperation must also comply with 
the specific conditions set out in Article 7 which contains a list of blacklisted restrictions. 
Adequate  insurance  cover  may  also  be  achieved  by  other  alternative  forms  of  cooperation  between 
insurers  with  or  without  the  intervention  of  insurance  intermediaries,  such  as  ad-hoc  agreements, 
brokerled arrangements, or line slips. 

I. Provision of insurance cover 

(1) Do you have risks insured that are not covered by a single insurer, but jointly by several insurers, 
e.g. in the form of a coinsurance pool, ad-hoc co(re)insurance arrangements, broker-led arrangements, 
line slips or other? Please describe these coinsurance arrangements that you or your members have in 
place to procure adequate insurance cover. 

(2) What procedure do you or your members follow to negotiate these arrangements? How are similar 
insurance needs to yours covered in other markets by comparable organizations? 

(3) Please specify for which type of risk you are using the above described co-insurance arrangements 
and provide us with concrete examples, e.g. name of risk carrier, name of involved broker etc. 

(4) Is the market for the insurance you or your members buy: national, EU-wide, or world-wide? 
Have you or your members tried to buy insurance cover in another Member State? For what reasons? 
If you cannot or did not succeed to buy such cover, could you please state the reasons? 

(5)  How  would  you  describe  the  current  competitive  situation  in  the  markets  where  you  or  your 
members buy insurance cover? 

(6) Is it necessary for insurers to cooperate to cover your insurance needs or those of your members? 
Why?  In  your  view,  do  individual  insurers  possess  sufficient  capacity  to  provide  insurance 
individually  in  the  markets  you  or  your  members  buy  insurance?  What  cooperation  frameworks  do 
insurers  use  in  these  markets:  pools,  ad-hoc  agreements,  intermediary-led  arrangements,  other?  For 
what purposes and to what effect? Is this cooperation in your view justified? Why? 

(7) What impact on your business does this cooperation between insurers have? Would you say that 
these  views  are  shared  by  other  market  participants  in  your  industry,  irrespective  of  scale  of 
operations? 

(8)  What  would  be  in  your  view  the  most  adequate  cooperation  framework  for  insurers  that  would 
produce in the market where you or your members buy insurance the best effects in terms of customer 
choice, supply, innovation, and premiums’ level? Why? 

II. Impacts of the IBER 

2 Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of the Treaty on the Functioning of 
the European Union to certain categories of agreements, decisions and concerted practices in the insurance sector (IBER), JO L 83, 1. 

3 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
(9) In the markets you or your members purchase insurance, does the cooperation exempted under the 
IBER promote or hinder the entrance of new players or the cross-border provision of insurance? Does 
it produce positive or negative effects on customer’s choice, supply diversity, innovation, or premium 
level? 

(10)  Does  the  current  IBER  exemption  for  insurance  pools  allow  appropriate  competition  in  the 
provision of the insurance you or your members buy? 

(11)  How  have  the  contractual  terms  and  premiums  for  the  insurance  you  or  your  members  buy 
evolved over time? Have efficiency gains, if any have occurred, been shared between the insurers and 
you/your members? 

(12)  What  changes  in  customer  choice,  supply  diversity,  innovation,  and  premium  level  would  take 
place if the pools’ exemption would not exist? How intense would these changes be: slight, moderate, 
appreciable? 

III. Outlook 

(13)  What  changes  in  the  IBER  provisions  on  cooperation  between  insurers  would  you  or  your 
members propose to enhance new entrance, cross-border provision of insurance, and a higher degree 
of innovation and competition? 

(14)  Should  the  relevant  provisions  distinguish  between:  larger  and  smaller  insurers,  insurance  and 
reinsurance markets, conventional or non-conventional/large risks? Should the provisions be different 
for different cooperation frameworks? How should these provisions be? 

4 

 
 
 
 
 
 
 
 
 
 
Questionnaire for Brokers 

19 December 2014 

This  year  the  European  Commission  has  conducted  an  initial  public  consultation  on  the  functioning 
and  future  of  the  Insurance  Block  Exemption  Regulation3
  (IBER).  The  IBER  exempts  from  the 
prohibition  of  restrictive  business  practices  under  Article  101  TFEU  certain  cooperation  agreements 
between  insurers,  among  others,  and  subject  to  certain  conditions,  co(re)insurance  pools  set  up  by 
insurance undertakings either directly or through brokers or authorised agents in order to jointly cover 
certain types of risks. 

The IBER defines 'co(re)insurance pools' as follows: 

- 'co-insurance pools' means groups set up by insurance undertakings either directly or through brokers 
or  authorised  agents,  with  the  exception  of  ad-hoc  co-insurance  agreements  on  the  subscription 
market, whereby a certain part of a given risk is covered by a lead insurer and the remaining part of the 
risk is covered by follow insurers who are invited to cover that remainder, which: 
(a)  agree  to  underwrite,  in  the  name  and  for  the  account  of  all  the  participants,  the  insurance  of  a 
specified risk category; or 
(b)  entrust  the  underwriting  and  management  of  the  insurance  of  a  specified  risk  category,  in  their 
name and on their behalf, to one of the insurance undertakings, to a common broker or to a common 
body set up for this purpose; 

-  'co-reinsurance  pools'  means  groups  set  up  by  insurance  undertakings  either  directly  or  through 
broker or authorised agents, possibly with the assistance of one or more reinsurance undertakings, with 
the exception of ad-hoc co-reinsurance agreements on the subscription market, whereby a certain part 
of a given risk  is covered  by a lead insurer and the  remaining  part of this risk is covered by follow 
insurers who are then invited to cover that remainder in order to: 
(a) reinsure mutually all or part of their liabilities in respect of a specified risk category; 
(b) incidentally accept, in the name and on behalf of all the participants, the reinsurance of the same 
category of risks. 

Several  respondents  to  the  initial  public  consultation  reported  the  emergence  of  'intermediary'  or 
'brokerled  pools'  as  a  significant  market  development  in  recent  years.  However,  the  European 
Commission has received a very limited feedback from intermediaries. This questionnaire intends to 
fill in this gap and understand the role of brokers in their interaction with pools. It is crucial for the 
European Commission to obtain relevant information in this field. The Impact Assessment that will be 
carried out in the review of the Insurance Block Exemption Regulation will have to determine how the 
IBER is being used in the EU insurance markets, whether the current regulation is still necessary, and 
if and how it needs to be amended. To this end a comprehensive picture of all relevant interactions on 
the markets served by pools is indispensable. 

I. Insurance Brokerage 

Main activity 

(1) Which industries, risk sizes and risk categories do you provide brokerage services for? 

(2) What is your geographical scope of operation? 

3 Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of the Treaty on the Functioning of 
the European Union to certain categories of agreements, decisions and concerted practices in the insurance sector (IBER), JO L 83, 1. 

5 

 
 
 
 
 
 
 
 
 
 
 
 
                                                      
(3) How do you acquire new business? 

(4) How do you procure sufficient coverage for any given risk? 

(5) Do you make use of standardised contracts? If yes: whose standard terms and conditions do you 
use? If not: have you drawn up your own standard terms and conditions? Could you please provide us 
with  a  copy  the  standard  terms  and  conditions  you  use?  If  you  do  not  use  standard  terms  and 
conditions, who drafts the tailored terms and conditions? 

(6) Could you describe the nature and extent of your interaction with insurers? 

(7) Could you describe the nature and extent of your interaction with pools? 

(8) On what basis do you compete with other brokers? 

(9) Do you have cooperation agreements with certain insurance holders? 

(10) Do you predominantly provide brokerage services for large, small or medium-sized clients? 

(11) Please describe your fee structure for insurance contracts brokered with regard to different types 
of  risks  or  clients.  On  what  basis  are  your  fees  calculated?  With  whom  are  they  negotiated,  and  by 
which party are they paid? 

Intermediary/broker-led pools 

(12) According to your understanding, do you engage in intermediary/broker-led pools? 

(13)  Please  describe  the  interaction  between  your  brokerage  and  insurers,  and  the  structure  of  these 
pools, e.g. were they set up by separate individual vertical agreements between the broker and each of 
the participating insurers? To what extent, if any, is there horizontal coordination between insurance 
undertakings in the context of their negotiations with you? 

(14)  If  you  elaborated  on  the  structure  of  intermediary/broker-led  pools:  Do  you  believe  that  the 
intermediary/broker-led pools you described fall within the current IBER definition (as quoted in the 
introduction)?  Please  provide  reasons.  If  you  do  not  believe  them  to  be  covered  by  this  definition, 
would you recommend subjecting them to the IBER? Please provide reasons. 

(15) Could you provide us with concrete examples of intermediary/broker-led pools? 

Market conditions 

(16) Apart from brokerage, how is insurance cover obtained in the risk market in which you operate? 

(17) Who are your main competitors (brokers or otherwise) in the market(s) in which you operate? 

(18) Are there any circumstances (economic, regulatory, market-specific, etc.) that would prevent you 
from placing a certain risk internationally (i.e. placing a risk from one Member State with an insurer in 
another)? Please describe what those are. 

(19) Are there any circumstances (economic, regulatory, market-specific, etc.) under which you would 
decline to procure coverage for a certain risk? Please describe what those are. 

(20) Are there any risk or geographic markets to which you have no or limited access? If so, what are 
they and for what reasons? 

6 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(21) Do Member State authorities intervene in the functioning of your brokerage? In what way? 

(22) Which format would you choose to cover new risks within the meaning of Art. 1(6) IBER (for 
example from cyber attacks or new energies)? 

(23) Under what circumstances would you choose to place a large risk with an  insurance pool rather 
than set up an ad-hoc coinsurance arrangement? 

(24) How frequently do you procure reinsurance cover for the same risk for which you also procure 
direct insurance? 

(25)  In  what  business  sectors  and  for  what  risk  types  do  you  rely  on  insurance  pools  to  cover  large 
risks? To what extent would the absence of insurance pools from the market influence your ability to 
find cover for new or large risks? 

(26)  When  placing  risks  with  insurance  pools,  which  organ  of  the  pool's  organisational  structure  is 
your negotiating/contracting partner? 

II. Impact of the IBER 

(27) To the best of your understanding, do (or should) intermediary/broker-led pools benefit from the 
IBER exemption? Please give reasons. 

(28) In the market(s) in which you arrange insurance cover, does the cooperation exempted under the 
IBER promote or hinder the entrance of new players, or the cross-border provision of insurance? 
Does  it  produce  positive  or  negative  effects  on  customer  choice,  supply  diversity,  innovation  or 
premium levels? 

(29)  Does  the  current  IBER  exemption  for  insurance  pools  allow  appropriate  competition  for  the 
insurance cover you seek to procure? Do you think that the current definition of pools is sufficient, or 
does it require adaptation? If yes, how? 

(30) What, if any, benefits do clients derive from taking their insurance needs to a broker rather than 
approaching a pool directly? 

(31)  What  changes  in  customer  choice,  supply  diversity,  innovation  and  premium  levels  would  take 
place if the pools’ exemption did not exist? How significant would these changes be: slight, moderate, 
appreciable? 

(32) Does the IBER have any effect on the range, size and type of insurers able to provide cover for 
the risks you are looking to place? Please explain. 

III. Outlook 

(33)  What  changes  in  the  IBER  provisions  on  cooperation  between  insurers  would  you  propose  in 
order  to  facilitate  market  entrance  and  the  cross-border  provision  of  insurance,  and  to  facilitate  a 
higher degree of innovation and competition? 

(34)  Should  the  relevant  provisions  distinguish  between:  larger  and  smaller  insurers,  insurance  and 
reinsurance  markets,  conventional  or  non-conventional/large  risks?  Should  the  provisions  differ  for 
different frameworks of cooperation? What should these provisions entail? 

7 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Questionnaire for mutual insurance associations 

19 December 2014 

The  European  Commission  has  run  this  year  an  initial  public  consultation  on  the  functioning  and 
future of the Insurance Block Exemption Regulation4
 (IBER). IBER exempts from the prohibition of 
restrictive  business  practices  under  Article  101  TFEU  certain  cooperation  agreements  between 
insurers, i.e. among others and subject to certain conditions co(re)-insurance pools that are set up by 
insurance undertakings either directly or through brokers or authorised agents to jointly cover certain 
types. 

"Co(re)insurance pools" are defined by IBER as follows 

-  "co-insurance  pools"  means  groups  set  up  by  insurance  undertakings  either  directly  or  through 
brokers  or  authorised  agents,  with  the  exception  of  ad-hoc  co-insurance  agreements  on  the 
subscription  market,  whereby  a  certain  part  of  a  given  risk  is  covered  by  a  lead  insurer  and  the 
remaining  part  of  the  risk  is  covered  by  follow  insurers  who  are  invited  to  cover  that  remainder, 
which: 
(a)  agree  to  underwrite,  in  the  name  and  for  the  account  of  all  the  participants,  the  insurance  of  a 
specified risk category; or 
(b)  entrust  the  underwriting  and  management  of  the  insurance  of  a  specified  risk  category,  in  their 
name and on their behalf, to one of the insurance undertakings, to a common broker or to a common 
body set up for this purpose; 

-  "co-reinsurance  pools"  means  groups  set  up  by  insurance  undertakings  either  directly  or  through 
broker or authorised agents, possibly with the assistance of one or more reinsurance undertakings, with 
the exception of ad-hoc co-reinsurance agreements on the subscription market, whereby a certain part 
of a given risk  is covered  by a lead insurer and the  remaining  part of this risk is covered by follow 
insurers who are then invited to cover that remainder in order to: 
(a) reinsure mutually all or part of their liabilities in respect of a specified risk category; 
(b) incidentally accept, in the name and on behalf of all the participants, the reinsurance of the same 
category of risks; 

During  the  initial  public  consultation,  the  European  Commission  did  not  receive  any  response  from 
mutual  insurance  associations  that  according  to  our  information  play  an  important  role  in  offering 
complementary or alternative insurance capacity in some sectors. This questionnaire intends to fill this 
information gap. 

I. Mutual insurance association’s operations 

Purpose / Main activity 

(1) What business does your entity undertake: direct insurance, re-insurance, retrocession? 

(2) What risk categories does your entity (re)insure? In what sectors of the economy? 

(3) For what reasons was your entity created? 

Composition 

4 Commission Regulation (EU) No 267/2010 of 24 March 2010 on the application of Article 101(3) of the Treaty on the Functioning of 
the European Union to certain categories of agreements, decisions and concerted practices in the insurance sector (IBER), JO L 83, 1. 

8 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
 
(4) What are the conditions to become member of your organization? Who are your members and 
what is their share in the mutual? 

(5) What are your main customers? Are all your members also policy holders of the mutual? 

Functioning of the mutual insurance association 

(6) On what basis and how does your entity decide the insurance cover it offers? 

(7) How does your mutual insurance undertaking function? Who is liable to the undertakings insured? 

II. Relevant market 

(8) What is the position of your entity in the markets in which it operates? Does your entity compete 
with  insurance  undertakings  or  (re)insurers’  groupings?  In  what  way?  Who  are  your  main 
competitors? Has there been any important innovation or development in the last ten years that affects 
the way (re)insurers cooperate for the provision of insurance in your sector? 

(9)  Do  you  know  other  mutual  insurance  associations  in  your  sector  or  in  other  sectors  of  the 
economy? What are they? 

III. Provision of insurance cover 

(10)  Is  your  offer  of  insurance  cover  complementary  or  alternative  to  that  offered  by  insurance 
undertakings or groupings of them? In what way? 

(11)  Please  explain  the  procedure,  process  and  interrelation  between  your  entity  and  insurance 
undertakings  and  their  groupings  to  compile  an  adequate  package  of  insurance  cover  for  your 
members. 

(12)  What  cooperation  frameworks  do  insurers  use:  Broker/Intermediary-led  insurance  line  slips, 
Adhoc arrangements, pools, other? 

(13) Is it necessary in your opinion for insurers to cooperate to cover the insurance needs or do you 
believe that individual insurers possess sufficient capacity to provide insurance individually? For what 
purposes and to what effect? Is this cooperation justified economically or socially? 

(14)  In  what  Member  States  are  you  active?  Have  you  tried  to  offer  insurance  cover  also  others 
Member States? For what reasons? If you did not succeed to offer such cover, could you please state 
the reasons? 

(15)  How  would  you  describe  the  current  competitive  situation  in  the  markets  where  you  offer 
insurance cover? 

(16) In the markets you offer insurance, does the cooperation  exempted  under the IBER promote or 
hinder the entrance of new players or the cross-border provision of insurance? Does it produce positive 
or negative effects on your activity? 

(17)  Does  this  cooperation  framework  between  insurers  have  an  impact  on  your  business?  If  yes, 
please explain. 

IV. Outlook 

9 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(18)  What  changes  in  the  IBER  provisions  on  cooperation  between  insurers  would  you  propose  to 
enhance  new  entrance,  cross-border  provision  of  insurance,  and  a  higher  degree  of  innovation  and 
competition? 

(19)  Should  the  relevant  provisions  distinguish  between:  larger  and  smaller  insurers,  insurance  and 
reinsurance markets, conventional or non-conventional/large risks? Should the provisions be different 
for different cooperation frameworks? How should these provisions be? 

10