CELEX: 51979PC0459
Language: en
Date: 1979-09-06
Title: 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

29. 9. 79                              Official Journal of the European Communities                                  N o C 245/7
               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 on 13 September 1979)
THE COUNCIL OF THE EUROPEAN                                          Whereas the interests of insured persons are
COMMUNITIES,                                                         sufficiently safeguarded, as regards suretyship
Having regard to the Treaty establishing the                         insurance, by the provisions of the said Directive;
European Economic Community, and in particular                       whereas the prohibition in the Federal Republic of
Article 57 (2) thereof,                                              Germany on the simultaneous undertaking of
                                                                     suretyship insurance and other classes is therefore not
Having regard to the proposal from the Commission,                   justified, and should be lifted;
Having regard to the opinion of the European                         Whereas in view of the cyclical nature of claims in
Parliament,                                                          credit insurance, the latter should for the purposes of
Having regard to the opinion of the Economic and                     calculating the average burden of claims within the
Social Committee,                                                    meaning of Article 16 (2) of the said Directive, be
Whereas the First Council Directive 7 3 / 2 3 9 / E E C of           treated on the same basis as insurance against storm,
24 July 1973 on the coordination of laws, regulations                hail and frost risks;
and administrative provisions relating to the                        Whereas the nature of the risk in credit insurance is
taking-up and pursuit of the business of direct                      such that undertakings which transact such business
insurance other than life assurance ('), as amended by               ought to form a higher guarantee fund than is at
Directive 7 6 / 5 8 0 / E E C ( 2 ), eliminated a number of          present provided for in Directive 7 3 / 2 3 9 / E E C ;
divergencies in the laws of the Member States in
                                                                     Whereas credit insurance undertakings require an
order to facilitate the taking up and pursuit of that
                                                                     equalization reserve which does not form part of the
business;
                                                                     solvency margin and which is not liable to tax;
Whereas however the said Directive states in Article 2               Whereas moreover certain provisions are necessary as
(2) (d) that it does not apply, 'pending further coordi-             regards the accounts undertakings which carry on
nation, which shall be implemented within four years                 credit insurance business;
of notification of this Directive', to 'export credit
insurance operations for the account of or with the                  Whereas however certain obligations imposed upon
support of the State'; whereas, since the protection of              undertakings which carry on credit insurance business
insured persons normally provided by the Directive is                are not necessary for undertakings whose operations
provided by the State itself where export credit                     do not exceed a certain volume; whereas it is appro-
insurance operations are carried out for the account                 priate to grant them a period of three years to meet
of or with the guarantee of the State, such operations               these obligations from the time when they exceed
should continue to be excluded from the scope of the                 such volume; whereas it is also appropriate to grant
said Directive;                                                      to undertakings whose operations exceed such
                                                                    volume at the date of notification of this Directive a
Whereas the said Directive states in Article 7 (2) (c)               period of three years to meet those obligations;
that 'pending further coordination, which must be                    Whereas, in view of the provisions laid down in
implemented within four years of notification of this                respect of credit insurance, the maintenance by the
Directive, the Federal Republic of Germany may                       Federal Republic of Germany of the prohibition of
maintain the provision prohibiting the simultaneous                  the simultaneous undertaking of credit insurance and
undertaking in its territory of health insurance, credit             other classes is no longer justified, and such
and surety insurance or insurance in respect of                      prohibition should therefore be removed,
recourse against third parties and legal defence, either
with one another or with other classes'; whereas it                  HAS ADOPTED THIS DIRECTIVE:
follows from this that there are barriers to the                                              Article 1
establishment under normal conditions of competition
of agencies and branches transacting credit and                      Council Directive 7 3 / 2 3 9 / E E C is hereby amended as
suretyship insurance; whereas the present Directive is               follows:
intended to remedy this situation;
                                                                     1. Article 2 (2)      (d),   shall be     replaced    by the
                                                                        following:
(') OJ No L 228, 16. 8. 1973, p. 3.                                        'Export credit insurance operations for the
O OJ No L 189, 13. 7. 1976, p. 13.                                         account of or with the guarantee of the State.'
 ---pagebreak--- N o C 245/8                              Official Journal of the E u r o p e a n Communities                         29. 9. 79
2. In Article 7 (2) (c), the words               'credit and                                  Article 2
   suretyship insurance' shall be deleted.
                                                                  1.       Undertakings shall set up an equalization
                                                                  reserve for the class of insurance listed under N o 14
3. In Article 16 (2), the text of the second sentence             in Point A of the Annex to Directive 7 3 / 2 3 9 / E E C
   shall be replaced by the following text:                       (hereafter referred to as 'credit insurance'). Such
                                                                  reserve shall each year receive 75 % of the technical
      'In the case, however, of undertakings which
                                                                  surplus, if any, of that financial year. T h e a m o u n t
      essentially underwrite only one or more of the
                                                                  involved may not, however, exceed 12 % of the net
      risks of credit, storm, hail, frost, the last seven
                                                                  premiums or contributions for the same financial
      years shall be taken as the period of reference
                                                                  year. Such transfer shall no longer be obligatory
      for the average burden of claims.'
                                                                  when the reserves have reached 150 % of the highest
                                                                  annual a m o u n t of net premiums or contributions paid
4. Article 17       (2)  (a)   shall  be  replaced    by  the     in during the last five financial years.
   following:
                                                                  2.       Any technical deficit which may occur f o r a
      '(a) T h e guarantee f u n d may not, however, be           given financial year in credit insurance shall be
            less than:                                            charged to each equalization reserve.
            — 1 000 000 units of account in the case
                                                                  3.       Such equalization reserve, up to the a m o u n t
                 where all or some of the risks included
                                                                  referred to in P a r a g r a p h 1 shall be disregarded f o r
                 in the class listed in point A of the
                                                                  purposes of calculating the solvency margin and shall
                 Annex u n d e r N o 14 are covered,
                                                                  be under exemption f r o m any liability to tax.
                 this class for each of the last three
                 financial years exceeded 1 000 000 units
                 of account or 5 % of the total a m o u n t                                   Article 3
                 of premiums or contributions receivable
                                                                  T h e technical reserves for credit insurance shall be
                 by the undertaking concerned,
                                                                  shown separately. T h e accounts of the undertaking
            — 400 000 units of account in the case                must be so drawn up that the results of credit
                 where all or some of the risks included          insurance business can be distinguished.
                 in one of the classes listed in point A of
                 the Annex under N o s 10, 11, 12, 13, 14
                 in so far as the first indent does not                                        Article 4
                 apply, and 15.'
                                                                   M e m b e r States shall amend their national provisions
            — (Remainder unchanged).                               to comply with this Directive within 12 months of its
                                                                   notification      and    shall     forthwith  inform    the
5. T h e following subparagraph (d) shall be added to              Commission thereof. T h e y shall apply such amended
    Article 17 (2):                                                provisions following a period of 18 months f r o m the
                                                                   date of such notification.
       '(d) W h e r e an undertaking carrying on credit
            insurance is required to raise the f u n d
            referred to in subparagraph (a) to 1 000 000                                      Articles 5
            units of account, the M e m b e r State
            concerned shall allow such undertaking a               U p o n notification of this Directive, M e m b e r States
            period of three years in which to carry out            shall ensure that the texts of the main laws, regu-
            such increase.                                         lations and administrative provisions which they
                                                                   adopt in the field governed by this directive are
            T h e three-year period shall run f r o m the          communicated to the Commission.
             date on which the first indent of subpara-
             graph (a) becomes applicable to the under-
            taking. T h e M e m b e r States shall determine                                   Article 6
            the manner in which this increase is to be
            carried out.'                                          This Directive is addressed to the M e m b e r States.