CELEX: 51982PC0255
Language: en
Date: 1982-05-12
Title: AMENDMENT TO THE PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING, AS REGARDS CREDIT INSURANCE, 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 INSURANCE

No C 5/2                            Official Journal of the European Communities                               7. 1. 83
                                                           II
                                                    (Preparatory Acts)
                                             COMMISSION
              Amendment to the proposal for a Council Directive amending, as regards credit
              insurance, 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 insurance (*)
              (Submitted by the Commission to the Council pursuant to the second paragraph of Article
                                        149 of the EEC Treaty on 17 May 1982)
                    ORIGINAL PROPOSAL                                             AMENDED PROPOSAL
Proposal for a Council Directive amending, as regards           Proposal for a Council Directive amending, as regards
credit insurance, First Directive 73/239/EEC on the             credit insurance and suretyship insurance, First
coordination of laws, regulations and administrative            Directive 73/239/EEC on the coordination of laws,
provisions relating to the taking-up and pursuit of the         regulations and administrative provisions relating to
 business of direct insurance other than life insurance.        the taking up and pursuit of the business of direct
                                                                          insurance other than life insurance.
THE COUNCIL OF THE EUROPEAN                                     THE COUNCIL OF THE EUROPEAN
COMMUNITIES,                                                    COMMUNITIES,
Having regard to the Treaty establishing the                    Unchanged
European Economic Community, and in particular
Article 57 (2) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European
Parliament,
Having regard to the opinion of the Economic and
Social Committee,
Whereas the First Council Directive 73/239/EEC of               Unchanged
24 July 1973 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 (2), as amended by
Directive 76/580/EEC (3), eliminated a number of
divergencies in the laws of the Member States in
order to facilitate the taking up and pursuit of that
business;
Whereas however the said Directive states in Article 2          Unchanged
(2) (d) that it does not apply, 'pending further
(') OJ N o C 245, 29. 9. 1979, p. 7.
(2) OJ N o L 228, 16. 8. 1973, p. 3.
(J) OJ N o L 189, 13. 7. 1976, p. 13.
 ---pagebreak---  7. 1.83                          Official Journal of the European Communities                            No C 5/3
                    ORIGINAL PROPOSAL                                           AMENDED PROPOSAL
 coordination, which shall be implemented within four
 years of notification of this Directive', to 'export
 credit insurance operations for the account of or with
 the support of the State';
 Whereas, since the protection of insured persons            Whereas — as regards export credit insurance
 normally provided by the Directive is provided by the       operations — free competition should be guaranteed
 State itself where export credit insurance operations       between public and private sector undertakings;
 are carried out for the account of or with the
 guarantee of the State, such operations should              Whereas the risks covered by export credit insurance
 continue to be excluded from the scope of the said          in trade relations within the Community are not of a
 Directive;                                                  different economic kind from those covered by credit
                                                             insurance for transactions within the domestic market
                                                             of a Member State;
                                                             Whereas, therefore, in this case credit insurance
                                                             operations for the account of, or guaranteed by, the
                                                             State should be included within the scope of this
                                                             Directive;
                                                             Whereas — as regards export credit insurance
                                                             operations in the context of trade relations between
                                                             Member States and third countries — further coordi-
                                                             nation of national provisions is required to achieve a
                                                             common export policy which is essential to the
                                                             common commercial policy;
Whereas the said Directive states in Article 7 (2) (c)       Unchanged
that 'pending further coordination, which must be
implemented within four years of notification of this
Directive, the Federal Republic of Germany may
maintain the provision prohibiting the simultaneous
undertaking in its territory of health insurance, credit
and surety insurance or insurance in respect of
recourse against third parties and legal defence, either
with one another or with other classes'; whereas it
follows from this that there are barriers to the
establishment under normal conditions of competition
of agencies and branches transacting credit and
suretyship insurance; whereas the present Directive is
intended to remedy this situation;
Whereas the interests of insured persons are                 Unchanged
sufficiently safeguarded, as regards suretyship
insurance, by the provisions of the said Directive;
whereas the prohibition in the Federal Republic of
Germany on the simultaneous undertaking of
suretyship insurance and other classes is therefore not
justified and should be lifted;
Whereas in view of the cyclical nature of claims in          Unchanged
credit insurance, the latter should, for the purposes of
calculating the average burden of claims within the
meaning of Article 16 (2) of the said Directive, be
treated on the same basis as insurance against storm,
hail and from risks;
Whereas the nature of the risk in credit insurance is        Unchanged
such that undertakings which transact such business
 ---pagebreak---  No C 5/4                            Official Journal of the European Communities                                7. 1.83
                   ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
ought to form a higher guarantee fund than is at
present provided for in Directive 73/239/EEC;
Whereas credit insurance undertakings require an              Whereas insurance undertakings whose credit
equalization reserve which does not form part of the          insurance business amounts to more than a small pro-
solvency margin and which is not liable to tax;               portion of their total business require an equalization
                                                              reserve which does not form part of the solvency
                                                              margin and which is not liable to tax;
Whereas moreover certain provisions are necessary as          Unchanged
regards the accounts undertakings which carry on
credit insurance business;
Whereas however certain obligations imposed upon               Unchanged
undertakings which carry on credit insurance business
are not necessary for undertakings whose operations
do not exceed a certain volume; whereas it is appro-
priate to grant them a period of three years to meet
these obligations from the time when they exceed
such volume; whereas it is also appropriate to grant
to undertakings whose operations exceed such
volume at the date of notification of this Directive a
period of three years to meet those obligations;
Whereas, in view of the provisions laid down in                Unchanged
respect of credit insurance, the maintenance by the
 Federal Republic of Germany of the prohibition of
the simultaneous undertaking of credit insurance and
other classes is no longer justified, and such
prohibition should therefore be removed,
HAS ADOPTED THIS DIRECTIVE:                                   HAS ADOPTED THIS DIRECTIVE:
                        Article 1                                                      Article 1
Council Directive 73/239/EEC      is hereby amended as        Council Directive 73/239/EEC is hereby amended as
follows:                                                      follows:
1. Article 2 (2) (d), shall be replaced          by the       1. Article 2 (2) (d) shall be replaced by the following:
   following:
                                                                 '(d)    pending further coordination, export credit
   'Export credit insurance operations for the account                   insurance operations for the account of or
   of or with the guarantee of the State.'                               guaranteed by the State, where the customer
                                                                         of the insured is a national of a non-member
                                                                         State.'
                                                              2. Unchanged.
                         Article 2
    1.   Undertakings shall set up an equalization            3. The following Article 15a shall           be   inserted
   reserve for the class of insurance listed under No            between Article 15 and Article 16:
    14 in Point A of the Annex to Directive
   73/239/EEC (hereafter referred to as 'credit                   'Article 15a
   insurance'). Such reserve shall each year receive
   75 % of the technical surplus, if any, of that                 1.    In respect of the risks included in the class of
   financial year. The amount involved may not,                  insurance listed in point A of the Annex under No
   however, exceed 12 % of the net premiums or                    14 (hereafter referred to as 'credit insurance'), the
   contributions for the same financial year. Such               undertaking shall set up an equalization reserve to
   transfer shall no longer be obligatory when the               which shall be charged any technical deficit arising
   reserves have reached 150 % of the highest annual             in that class for a financial year.
 ---pagebreak--- 7. 1. 83                           Official Journal of the European Communities                               No C 5/5
                    ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
   amount of net premiums or contributions paid in
   during the last five financial years.
   2.    Any technical deficit which may occur for a              2.     Such reserve shall in each financial year
   given financial year in credit insurance shall be              receive 75 % of any technical surplus arising on
   charged to each equalization reserve.                          credit insurance business, subject to a limit of 12 %
                                                                  of the net premiums or contributions, until the
                                                                  reserve has reached 150 % of the highest annual
                                                                  amount of net premiums or contributions received
                                                                  during the previous five financial years.
   3.     Such equalization reserve, up to the amount             3.     Such equalization reserve up to the amount
   referre4 to in paragraph 1 shall be disregarded for            referred to in paragraph 2 shall be disregarded for
   purposes of calculating the solvency margin and                purposes of calculating the solvency margin and
   shall be under exemption from any liability to tax.            any liability to tax shall be suspended.
                                                                  4.     The obligation to set up an equalization
                                                                  reserve for credit insurance business shall not apply
                                                                  to undertakings where the premiums or contri-
                                                                  butions receivable in respect of credit insurance are
                                                                  less than 5 % of the total premiums or contri-
                                                                  butions receivable by the undertaking.'
                                                              Former Article 1 (3) becomes point 4; otherwise
                                                              unchanged.
                                                              Former Article 1 (4) becomes point 5; otherwise
                                                              unchanged.
Article 1
5. The following subparagraph (d) shall be added to           6. The following subparagraph (d) shall be added to
   Article 17(2):                                                 Article 17(2):
   '(d) Where an undertaking carrying on credit                   '(d) where an undertaking carrying on credit
         insurance is required to raise the fund                        insurance is required to increase the fund
         referred to in subparagraph (a) to 1 000 000                   referred to in subparagraph (a), first indent,
         units of account, the Member State concerned                   to 1 000 000 units of account, the Member
         shall allow such undertaking a period of three                 State concerned shall allow such undertaking
         years in which to carry out such increase.                     a period of three years in which to carry out
                                                                        such increase; such increase shall be
         The three-year period shall run from the date                  implemented progressively.
         on which the first indent of subparagraph (a)
         becomes applicable to the undertaking. The                     The three-year period shall run from the date
         Member States shall determine the manner in                    on which the first indent of paragraph (a)
         which this increase is to be carried out.'                     becomes applicable to the undertaking.'
                                                                        (16 words deleted)
                         Article 3                             7. The following paragraph 2 shall be inserted after
                                                                   Article 19(1):
The technical reserves for credit insurance shall be
shown separately. The accounts of the undertaking                  '2.     In respect of credit insurance, the accounts
must be so drawn up that the results of credit                     of the undertaking shall show separately both the
insurance business can be distinguished.                           results and the technical reserves.'
                                                                   Article 19 (2) becomes Article 19 (3).
                                                              Former Article 2 becomes Article 1 (3).
                                                              Former Article 3 becomes Article 1 (7).
 ---pagebreak--- No C 5/6                             Official Journal of the European Communities                                  7. 1. 83
                    ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
                         Article 4                                                           Article 2
Member States shall amend their national provisions                 Member States shall adopt the measures necessary to
to comply with this Directive within 12 months of its               comply with this Directive by 31 December 1983.
notification   and shall forthwith            inform      the       They shall inform           the Commission     thereof
Commission thereof. They shall apply such amended                   immediately.
provisions following a period of 18 months from the
date of such notification.                                          They shall apply such measures from 1 July 1984.
                                                                    Former Article 5 becomes Article 3.
                                                                    Former Article 6 becomes Article 4.
                                                            ANNEX
                                          Draft of letter to the European Parliament
             Sir,
             On 17 October 1980 the European Parliament gave its opinion on the proposal for a Council
             Directive amending, as regards credit insurance, 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, which the Commission had submitted to the Council
             on 13 September 1979 (').
             I have the honour to inform you that the Commission has now submitted to the Council an
             amended proposal (enclosed) in accordance with the second paragraph of Article 149 of the EEC
             Treaty. The amended proposal incorporates most of the amendments suggested by the European
             Parliament.
             O OJ No C 245, 29. 9. 1979, p. 7.