CELEX: 51980PC0891
Language: en
Date: 1980-12-31
Title: PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING THE FIRST DIRECTIVE 73/239/CEE ON THE COORDINATION OF LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE TAKING-UP UND PURSUIT OF THE BUSINESS OF DIRECT INSURANCE OTHER THAN LIFE ASSURANCE, PARTICULARLY AS REGARDS TOURIST ASSISTANCE

10.3.81                           Official Journal of the European Communities                                No C 51/5
                                                           II
                                                    (Preparatory Acts)
                                              COMMISSION
             Proposal for a Council Directive amending the First Directive 73/239/EEC on the
             coordination of laws, regulations and administrative provisions relating to the taking-up
             and pursuit of the business of direct insurance other than life assurance, particularly as
                                                regards tourist assistance
                            (Submitted by the Commission to the Council on 13 January 1981)
THE COUNCIL OF THE EUROPEAN                                      by provisions which differ from one Member State to
COMMUNITIES,                                                     another; whereas those differences constitute a
                                                                 barrier to the exercise of the right of establishment;
Having regard to the Treaty establishing the
European Economic Community, and in particular
                                                                 Whereas in order to eliminate the abovementioned
Article 57 (2) thereof,
                                                                 barrier to the right of establishment it should be
                                                                 specified that an activity is not excluded from the
Having regard to the proposal from the Commission,               application of Directive 73/239/EEC for the simple
                                                                 reason that it constitutes a benefit in kind solely or
                                                                 one for which the person providing it uses his own
Having regard to the opinion of the European Par-                staff or equipment only;
liament,
                                                                 Whereas a new class of insurance consisting of
Having regard to the opinion of the Economic and                 assistance should be included in the above Directive;
Social Committee,                                                whereas certain forms of assistance which are
                                                                 provided most frequently in a number of Member
Whereas First Council Directive 73/239/EEC of                    States by motoring clubs and similar organizations
24 July 1973 on the coordination of laws, regulations            should be excluded from the application of that
 and administrative provisions relating to the                   Directive;
 taking-up and pursuit of the business of direct
 insurance other than life assurance ('), as amended by          Whereas an undertaking engaged in the business of
 Directive 76/580/EEC of June 1976 (2), eliminated               assistance insurance must possess the means necessary
 certain divergencies betweeen the laws of Member                for it to provide the benefits in kind which it proposes
 States in order to facilitate the taking up and pursuit         within an appropriate period of time; whereas special
 of the above business;                                          provisions should be laid down for calculating the
                                                                 solvency margin and the minimum amount of the
 Whereas considerable progress has been achieved in              guarantee fund which such undertaking must possess;
 that area of business involving the provisions of
 benefits in kind; whereas such benefits are governed            Whereas certain transitional provisions are necessary
                                                                 in order to permit undertakings engaging solely in
                                                                 assistance insurance to adapt themselves to the
 (') OJNo L228, 16. 8. 1973.                                     application of the provisions of Directive 73/239/
 (2) OJ No L 189,, 13. 7. 1976.                                  EEC;
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Whereas it is necessary to keep up to date the                                          Article 4
provisions of that Directive concerning the legal
forms which insurance undertakings may assume;               In point A of the Annex to the First Directive the
whereas certain       provisions of the         Directive    following is inserted between the words 'Legal
concerning the rules applicable to agencies or               expenses and costs of litigation' and the last sentence:
branches established within the Community and
belonging to undertakings whose head offices are
                                                                 18. Assistance
outside the Community should be amended in order
to make them more consistent,                                   — assistance for persons who get into difficulties
                                                                     while travelling or while away from home,
                                                                — assistance in other circumstances.
HAS ADOPTED THIS DIRECTIVE:
                                                                                        Articles 5
                        Article 1
                                                             Article 2 (2) of the First Directive is supplemented as
In this Directive the words 'First Directive' mean First    follows:
Council Directive 73/239/EEC of 24 July 1973 on
the     coordination    of    laws,   regulations    and
                                                                (e) operations of assistance to persons who are not
administrative provisions relating to the taking-up
                                                                     holders of an assistance contract at the moment
and pursuit of the business of direct insurance other
                                                                     of the happening of the chance event or who
than life assurance.
                                                                     are holders of a contract not concerning such
                                                                     an event.
                        Article 2
                                                                (f) assistance provided in the event of an accident
Article 1 of the First Directive is replaced by the
                                                                     involving the breakdown of a road vehicle and
following:
                                                                     consisting solely of
   1.    This Directive concerns the taking-up and                   — a roadside breakdown service for which the
   pursuit of the self-employed activity of direct                       organization providing the service uses, in
   insurance carried on by insurance undertakings                        most circumstances, its own staff and
   which are established in a Member State or which                      equipment;
   wish to become established there.
                                                                     — the conveyance of the vehicle to the nearest
                                                                         and most practical location at which repairs
   2.    An activity shall not be excluded from the                      may be carried out; and
   application of the Directive for the simple reason
   that the benefits are supplied in kind only or that               — the conveyance of the driver and passengers
   the person providing them uses his own staff or                       to the nearest place from which they may
   equipment only. This applies especially to under-                     conveniently continue their journey by
   takings entered into, subject to the prior payment                    other means;
   of a fixed sum, to make a material aid immediately
   available to the holder of an assistance contract           However, this Directive applies to the above
   where the latter is in difficulties following the           operations if they are carried out in close
   happening of a chance event in the cases and                conjunction with the other operations referred to in
   conditions set out in the contract. Assistance does         the first indent of No 18 of point A of the Annex,
   not cover servicing and maintenance, nor after              provided:
   sales service.
                                                               — the same staff, equipment or other means are
                                                                    used or may be used in order to comply with
    3.   The classes of insurance referred to in
                                                                    requests for assistance covered by one or other
   paragraph 1 above are listed in the Annex to this
                                                                     category of operations; or
    Directive.
                                                                — the same operations are covered by the same
                        Article 3                                    contract as other operations to which this
                                                                     directive applies.
Article 4 of the First Directive is supplemented as
follows:
                                                                                        Article 6
   (f) In Denmark
                                                             In Articles 9 and 11(1) of the First Directive the
       De Danske Redningskorps Faellesforbund.               following paragraph is inserted immediately before
 ---pagebreak--- 10.3.81                            Official Journal of the European Communities                             No C 51/7
the words 'and in addition, for the first three financial        operations, of its financial situation, solvency and,
years':                                                          as regards cover for risks listed under No 18 of
                                                                 point A of the Annex, other resources available to
   (ee) where the risks to be covered are classified             them for meeting their liabilities.
         under No 18 of point A of the Annex, the
         resources available" to it for providing
         assistance.                                             2.    Member States shall require undertakings
                                                                 operating in their territory to render periodically
                                                                 the returns, together with statistical documents,
                         Article 7                               which are necessary for the purposes of supervision
                                                                 and, as regards cover for risks listed under No 18
                                                                 of point A of the Annex, to indicate the resources
Article 13 of the First Directive is replaced by the
                                                                 available to them for meeting their liabilities. The
following:
                                                                 competent supervisory authorities shall furnish each
                                                                 other with the documents and information
   Member States shall collaborate closely with one              necessary for exercising supervision.
   another in supervising the financial position of
   authorized undertakings. Should the undertakings
   in question be authorized to cover the risks set out
   in the category listed under No 18 of point A of                                   Article 11
   the Annex, Member States shall also collaborate in
   supervising the resources available to those under-
                                                              In the eighth indent of Article 8 (a) of the First
   takings for carrying out the assistance operations
                                                              Directive the words 'cooperatieve vereniging' are
   they have undertaken to perform.
                                                              deleted.
                         Article 8                                                    Article 12
Article 16 (3) of the First Directive is supplemented as      Article 26 of the First Directive is replaced by the
follows:                                                      following:
   In the event of the risks listed under No 18 of               1.    'Undertakings which have sought or obtained
   point A of the Annex, the amount of claims paid               an authorization from two or more Member States
   used to calculate the second result shall be the costs        may apply for the following advantages which may
   borne by the undertaking in respect of claims for             only be granted jointly:
   assistance. Such costs shall be calculated on the             (a) that the solvency margin referred to in Article
   basis laid down by the supervisory authority of the               25 be calculated in relation to the entire
   Member State in whose territory the head office of                business which they undertake within the
   the undertaking is situated.                                      Community; in such case, account shall be
                                                                     taken only of the business effected by all the
                                                                     agencies or branches established within the
                         Article 9                                   Community for that calculation;
In Article 17 of the First Directive, the second indent          (b) that the deposit referred to in Article 23 (2) (e)
of paragraph 2 (a) is replaced by the following:                     be lodged in one of those States only;
                                                                 (c) that the assets representing the guarantee fund
  — 300 000 units of account in the case where all                   shall be kept in any one of the Member States
       or some of the risks included in one of the                   in which they carry on business.
       classes listed in point A of the Annex under
       Nos 1, 2, 3, 4, 5, 6, 7, 8, 16 and 18 are                 2.    An application for the advantages provided
       covered.                                                  for in paragraph 1 shall be submitted to the
                                                                 competent authorities of all the Member States
                                                                 from which the undertaking in question has sought
                        Article 10                               or obtained an authorization. The application shall
                                                                 indicate the authority responsible for verifying in
Article 19 of the First Directive is replaced by the             the future the solvency of agencies or branches
following:                                                       established within the Community with respect to
                                                                 their entire business. The choice of authority made
    1.   Each Member State shall require every under-            by the undertaking shall set out the reasons on
   taking whose head office is situated in its territory         which it is based. The deposit shall be lodged with
   to produce an annual account covering all types of            the corresponding Member State.
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   3.    The advantages provided for in paragraph 1             3.    Any undertaking referred to in paragraph 1
   shall be granted only with the consent of the                which wishes to extend its business within the
   competent authorities of all the Member States to            meaning of Article 8 (2) or Article 10 of the First
   which an application has been submitted. They                Directive may do so only on conditions that it
   shall take effect on the date on which the                   complies forthwith with the rules of the Directive in
   supervisory authority selected has undertaken, vis-          question.
   a-vis the other supervisory authorities, to verify the
   solvency of the agencies or branches established in
   the Community with respect to their entire                   4.    Any undertaking referred to in paragraph 1
   business. The supervisory authority selected shall           having a structure different form those referred to in
   obtain from the other Member States the infor-              Article 8 of the First Coordination Directive may
   mation necessary for verifying the overall solvency          continue for a period of three years from the date of
   of the agencies or branches established in their             adoption of this Directive to carry its existing business
   territory.                                                   in the legal form in which it exists on that date.
   4.    The advantages conferred pursuant to this
   Article shall, on the initiative of one or more of the                              Article 15
   Member States concerned, be withdrawn simul-
   taneously by all the Member States concerned.                Member States shall allow agencies and branches
                                                                referred to in Title III of the First Directive which
                                                               provide in their territories assistance insurance only a
                         Article 13                             maximum period of five years commencing on the
                                                                date of adoption of this Directive in order to comply
The second paragraph of Article 27 of the First                with the requirements of Article 25 of the First
Directive js replaced by the following:                         Directive provided such agencies or branches do not
                                                                extend their business pursuant to Article 10 (2) of the
   As regards the application of Article 20, where an           First Directive.
   undertaking qualifies for the advantages provided
   for in Article 26 (1) above, the authority
   responsible for verifying the solvency of agencies or
   branches established within the Community with
   respect to their entire business shall be the                                    Final provisions
   authority of the State in which the head office of
   the Community undertaking is situated.                                              Article 16
                                                               Member States shall amend their national provisions
                  Transitional provisions                      in order to comply with this Directive before
                                                               31 December 1982 and shall notify the Commission
                        Article 14                             thereof forthwith. The provisions thus amended shall,
                                                               subject to Articles 12 and 13 above, be brought into
1.    Member States shall allow undertakings which             force before 31 December 1983.
do not carry on insurance in their territories in any
class other than assistance a period of five years,
commencing on the date of adoption of this                                             Article 17
Directive, in order to comply with the requirements
of Articles 16 and 17 of the First Directive.
                                                               Upon notification of this Directive, Member States
                                                               shall forward to the Commission the texts of the main
2.    Furthermore, Member States may allow any                 provisions laid down by law, regulation or
undertakings referred to in paragraph 1, which upon            administrative provision which they adopt in the field
the expiry of the five-year period have not fully              covered by this Directive.
established the margin of solvency, a further period
not exceeding two years in which to do so provided
that such undertakings have, in accordance with
Article 20 of the First Directive, submitted for the                                   Article 18
approval of the supervisory authority the measures
which they propose to take for such purpose.                   This Directive is addressed to the Member States.