The Solvency ii
Directive
CHAPTER
VIII
RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE
SERVICES
SECTION 1 - ESTABLISHMENT BY INSURANCE
UNDERTAKINGS
Article 143
Conditions for branch
establishment
1. Member States shall ensure that an insurance
undertaking which proposes to establish a branch within the
territory of another Member State notifies the supervisory
authorities of its home Member State.
Any permanent presence
of an undertaking in the territory of a Member State shall be
treated in the same way as a branch, even if that presence does not
take the form of a branch, but consists merely of an office managed
by the own staff of the undertaking or by a person who is
independent but has permanent authority to act for the undertaking
as an agency would.
2. Member States shall require every
insurance undertaking that proposes to establish a branch within the
territory of another Member State to provide the following
information when effecting the notification provided for in
paragraph 1:
(a) the Member State within the territory of
which it proposes to establish a branch;
(b) a scheme of
operations setting out, at least, the types of business envisaged
and the structural organisation of the branch;
(c) the name
of a person who possesses sufficient powers to bind, in relation to
third parties, the insurance undertaking or, in the case of Lloyd's,
the underwriters concerned and to represent it or them in relations
with the authorities and courts of the host Member State
(hereinafter "authorised agent");
(d) the address in the
host Member State from which documents may be obtained and to which
they may be delivered, including all communications to the
authorised agent;
with regard to Lloyd's, in the event of any
litigation in the host Member State arising out of underwritten
commitments, the insured persons must not be treated less favourably
than if the litigation had been brought against businesses of a
conventional type.
3. Where a non-life insurance undertaking
intends its branch to cover risks in class 10 in point A of Annex I,
not including carrier's liability, it must produce a declaration
that it has become a member of the national bureau and the national
guarantee fund of the host Member State.
4. In the event of a
change in any of the particulars communicated under points (b), (c)
or (d) of paragraph 2, an insurance undertaking shall give written
notice of the change to the supervisory authorities of the home
Member State and of the Member State where that branch is situated
at least one month before making the change so that the supervisory
authorities of the home Member State and the supervisory authorities
of the Member State where that branch is situated may fulfil their
respective roles under Article 144 (1), (2) and subparagraph 1 of
paragraph (3).
Article 144
Communication of
information
1. Unless the supervisory authorities of the home
Member State have reason to doubt the adequacy of the governance
system or the financial situation of the insurance undertaking or
the fit and proper requirements according to Article 42 of the
authorised agent, taking into account the business planned, they
shall, within three months of receiving all the information referred
to in Article 143(2), communicate that information to the
supervisory authorities of the host Member State and shall inform
the insurance undertaking concerned thereof.
The supervisory
authorities of the home Member State shall also attest
that the
insurance undertaking covers the Solvency Capital Requirement and
the Minimum Capital Requirement calculated in accordance with
Articles 100 and 127.
2. Where the supervisory authorities of
the home Member State refuse to communicate the information referred
to in Article 143(2) to the supervisory authorities of the host
Member State they shall give reasons for their refusal to the
insurance undertaking concerned within three months of receiving all
the information in question.
That refusal or failure to act
may be subject to a right to apply to the courts in the home Member
State.
3. Before the branch of an insurance undertaking
starts business, the supervisory authorities of the host Member
State shall, where applicable, within two months of receiving the
information referred to in paragraph 1, inform the supervisory
authority of the home Member State, of the conditions under which,
in the interest of the general good, that business must be carried
on in the host Member State.
The supervisory authority of the home
Member State shall communicate this information to the insurance
undertaking concerned.
SECTION 2 - FREEDOM TO
PROVIDE SERVICES: BY INSURANCE UNDERTAKINGS
SUBSECTION 1 -
GENERAL PROVISIONS
Article 145
Prior notification to
the home Member State
Any insurance undertaking that intends
to carry on business for the first time in one or more Member States
under the freedom to provide services shall first notify the
supervisory authorities of the home Member State, indicating the
nature of the risks or commitments it proposes to
cover.
Article 146
Notification by the home Member
State
1. Within one month of the notification provided for in
Article 145, the supervisory authorities of the home Member State
shall communicate the following to the Member State or States within
the territories of which an insurance undertaking intends to carry
on business under the freedom to provide services:
(a) a
certificate attesting that the insurance undertaking covers the
Solvency Capital Requirement and Minimum Capital Requirement
calculated in accordance with Articles 100 and 127 ;
(b) the
classes of insurance which the insurance undertaking has been
authorised to offer;
(c) the nature of the risks or
commitments which the insurance undertaking proposes to cover in the
host Member State.
At the same time, the supervisory
authorities of the home Member State shall inform the insurance
undertaking concerned of that communication.
2. Member States
within the territory of which a non-life insurance undertaking
intends, under the freedom to provide services, to cover risks in
class 10 in point A of Annex I other than carrier's liability may
require that insurance undertaking to submit the
following:
(a) the name and address of the representative
referred to in point (h) of Article 18(1);
(b) a declaration
that it has become a member of the national bureau and national
guarantee fund of the host Member State.
3. Where the
supervisory authorities of the home Member State do not communicate
the information referred to in paragraph 1 within the period laid
down therein, they shall give the reasons for their refusal to the
insurance undertaking within that same period.
That refusal
or failure to act shall be subject to a right to apply to the courts
in the home Member State.
4. The insurance undertaking may
start business as from the date on which it is informed of the
communication provided for in the first subparagraph of paragraph
1.
Article 147
Changes in the nature of the risks
or commitments
Any change which an insurance undertaking
intends to make to the information referred to in Article 145 shall
be subject to the procedure provided for in Articles 145 and
146.
SUBSECTION 2 - THIRD PARTY MOTOR VEHICLE
LIABILITY
Article 148
Compulsory insurance on third
party motor vehicle liability
1. Where a non-life insurance
undertaking, through an establishment situated in one Member State,
covers a risk, other than carrier's liability, classified under
class 10 in point A of Annex I which is situated in another Member
State, the host Member State shall require that undertaking to
become a member of and participate in the financing of its national
bureau and its national guarantee fund.
2. The financial
contribution referred to in paragraph 1 shall only be made in
relation to risks, other than carrier's liability, in class 10 point
A of Annex I covered by way of provision of services. That
contribution shall be calculated on the same basis as for non-life
insurance undertakings covering those risks, through an
establishment situated in that Member State.
The calculation
shall be made by reference to the insurance undertakings’ premium
income from that class in the host Member State or the number of
risks in that class covered there.
3. The host Member State
may require an insurance undertaking providing services to comply
with the rules in that Member State concerning the cover of
aggravated risks, insofar as they apply to non-life insurance
undertakings established in that State.
Article
149
Non-discrimination of persons pursuing claims
The
host Member State shall require the non-life insurance undertaking
to ensure that persons pursuing claims arising out of events
occurring in its territory are not placed in a less favourable
situation as a result of the fact that the undertaking is covering a
risk, other than carrier's liability, in class 10 in point A of
Annex I by way of provision of services rather than through an
establishment situated in that State.
Article
150
Representative
1. For the purposes referred to in
Article 149, the host Member State shall require the non-life
insurance undertaking to appoint a representative resident or
established in its territory who shall collect all necessary
information in relation to claims, and shall possess sufficient
powers to represent the undertaking in relation to persons suffering
damage who could pursue claims, including the payment of such
claims, and to represent it or, where necessary, to have it
represented before the courts and authorities of that Member State
in relation to these claims.
The representative may also be
required to represent the non-life insurance undertaking before the
supervisory authorities of the host Member State with regard to
checking the existence and validity of motor vehicle liability
insurance policies.
2. The host Member State may not require
that representative to undertake activities on behalf of the
non-life insurance undertaking which appointed him other than those
set out in paragraph 1.
3. The appointment of the
representative shall not in itself constitute the opening of a
branch for the purpose of Article 143.
4. If the insurance
undertaking has failed to appoint a representative, Member States
may give their approval to the claims representative appointed in
accordance with Article 4 of Directive 2000/26/EC║ to assume the
function of the representative referred to in paragraph 1 of this
Article.
SECTION 3 - COMPETENCIES OF THE SUPERVISORY
AUTHORITIES OF THE HOST MEMBER STATE
SUBSECTION 1 -
INSURANCE
Article 151
Language
The supervisory
authorities of the host Member State may require the information
which they are authorised to request with regard to the business of
insurance undertakings operating in the territory of that Member
State to be supplied to them in the official language or languages
of that State.
Article 152
Prior notification and
prior approval
1 The host Member State shall not adopt
provisions requiring the prior approval or systematic notification
of general and special policy conditions, scales of premiums, or, in
the case of life insurance, the technical bases used in particular
for calculating scales of premiums and technical provisions, or the
forms and other documents which an insurance undertaking intends to
use in its dealings with policyholders.
2. The
host Member
State may only require an insurance undertaking that proposes to
carry on insurance business within its territory to effect
non-systematic notification of policy conditions and other documents
for the purpose of verifying compliance with its national provisions
concerning insurance contracts, and that requirement may not
constitute a prior condition for an insurance undertaking to carry
on its business.
3. The host Member State may not retain or
introduce prior notification or approval of proposed increases in
premium rates except as part of general price-control
systems.
Article 153
Insurance undertakings not
complying with the legal provisions
1. If the supervisory
authorities of a host Member State establish that an insurance
undertaking with a branch or carrying on business under the freedom
to provide services in its territory is not complying with the legal
provisions applicable to it in that Member State, they shall require
the insurance undertaking concerned to remedy that irregular
situation.
2. If the insurance undertaking concerned fails to
take the necessary action, the supervisory authorities of the Member
State concerned shall inform the supervisory authorities of the
home
Member State accordingly.
The supervisory authorities of the
home Member State shall, at the earliest opportunity, take all
appropriate measures to ensure that the insurance undertaking
concerned remedies that irregular situation.
The supervisory
authorities of the home Member State shall inform the supervisory
authorities of the host Member State of the measures
taken.
3. If, despite the measures taken by the home Member
State or because those measures prove to be inadequate or are
lacking in that State, the insurance undertaking persists in
violating the legal provisions in force in the host Member State or
because those measures prove inadequate, the supervisory authorities
of the host Member State may, after informing the supervisory
authorities of the home Member State, take appropriate measures to
prevent or penalise further irregularities, including, in so far as
is strictly necessary, preventing that undertaking from continuing
to conclude new insurance contracts within territory of the host
Member State.
Member States shall ensure that in their
territories it is possible to serve the legal documents necessary
for such measures on insurance undertakings.
4. Paragraphs 1,
2 and 3 shall not affect the power of the Member States concerned to
take appropriate emergency measures to prevent or penalise
irregularities within their territories. That power shall include
the possibility of preventing insurance undertakings from continuing
to conclude new insurance contracts within their
territories.
5. Paragraphs 1, 2 and 3 shall not affect the
power of the Member States to penalise infringements within their
territories.
6. If an insurance undertaking which has
committed an infringement has an establishment or possesses property
in the Member State concerned, the supervisory authorities of that
Member State may, in accordance with national law, apply the
national administrative penalties prescribed for that infringement
by way of enforcement against that establishment or
property.
7. Any measure adopted under paragraphs 2 to 6
involving restrictions on the conduct of insurance business must be
properly reasoned and communicated to the insurance undertaking
concerned.
8. Insurance undertakings shall submit to the
supervisory authorities of the host Member State at their request
all documents requested of them for the purposes of paragraphs 1 to
7 to the extent that insurance undertakings the head office of which
is in that Member States are also obliged to do so.
9. Member
States shall inform the Commission of the number and types of cases
which led to refusals under Articles 144 and 146 in which measures
have been taken under paragraph 4.
On the basis of that
information the Commission shall inform the European Insurance and
Occupational Pensions Committee ,every two years.
Article
154
Advertising
Insurance undertakings with head
offices in Member States may advertise their services, through all
available means of communication, in the host Member State, subject
to the rules governing the form and content of such advertising
adopted in the interest of the general good.
Article
155
Taxes on premiums
1. Without prejudice to any
subsequent harmonisation, every insurance contract shall be subject
exclusively to the indirect taxes and parafiscal charges on
insurance premiums in the Member State in which the risk is situated
or the commitment is covered.
For the purposes of the first
subparagraph, moveable property contained in a building situated
within the territory of a Member State, except for goods in
commercial transit, shall be considered as a risk situated in that
Member State, even if the building and its contents are not covered
by the same insurance policy.
In the case of Spain, an
insurance contract shall also be subject to the surcharges legally
established in favour of the Spanish "Consorcio de Compensación de
Seguros" for the performance of its functions relating to the
compensation of losses arising from extraordinary events occurring
in that Member State.
2. The law applicable to the contract
under Article 176 and Regulation (EC) No 593/2008 shall not affect
the fiscal arrangements applicable.
3. Each Member State
shall apply its own national provisions to those insurance
undertakings which cover risks or commitments situated within its
territory for measures to ensure the collection of indirect taxes
and parafiscal charges due under paragraph 1.
SUBSECTION
2 - REINSURANCE
Article 156
Reinsurance undertakings
not complying with the legal provisions
1. If the supervisory
authorities of a Member State establish that a reinsurance
undertaking with a branch or carrying on business under the freedom
to provide services within its territory is
not complying with the
legal provisions applicable to it in that Member State, they shall
require the reinsurance undertaking concerned to remedy that
irregular situation.
At the same time, they
shall refer those
findings to the supervisory authority of the home Member
State.
2. If, despite the measures taken by the home Member
State, the reinsurance undertaking persists in violating the legal
provisions applicable to it in the host Member State or because such
measures prove inadequate, the supervisory authorities of the host
Member State may, after informing the supervisory authority of the
home Member State, take appropriate measures to prevent or penalise
further irregularities, including, insofar as is strictly necessary,
preventing that reinsurance undertaking from continuing to conclude
new reinsurance contracts within the territory of the host Member
State.
Member States shall ensure that within their
territories it is possible to serve the legal documents necessary
for such measures on reinsurance undertakings.
3. Any measure
adopted under paragraphs 1 and 2 involving sanctions or restrictions
on the conduct of reinsurance business shall be properly reasoned
and communicated to the reinsurance undertaking
concerned.
SECTION 4 - STATISTICAL
INFORMATION
Article 157
Statistical information on
cross-border activities
Every insurance undertaking shall
inform the competent supervisory authority of its home Member State,
separately in respect of transactions carried out under the right of
establishment and those carried out under the freedom to provide
services, of the amount of the premiums, claims and commissions,
without deduction of reinsurance, by Member State and as
follows:
(a) for non-life insurance by group of classes as
set out in point B of Annex I;
(b) for life insurance by
each of classes I to IX, as set out in Annex II.
As regards
class 10 in point A of Annex I, not including carrier's liability,
the undertaking concerned shall also inform that supervisory
authority of the frequency and average cost of claims.
The
supervisory authority of the home Member State shall forward the
information referred to in the first and second subparagraphs within
a reasonable time and in aggregate form to the supervisory
authorities of each of the Member States concerned upon their
request.
SECTION 5 - TREATMENT OF CONTRACTS OF BRANCHES
IN WINDING-UP PROCEEDINGS
Article 158
Winding-up of
insurance undertakings
Where an insurance undertaking is
wound up, commitments arising out of contracts underwritten through
a branch or under the freedom to provide services shall be met in
the same way as those arising out of the other insurance contract of
that undertaking, without distinction as to nationality as far as
the persons insured and the beneficiaries are
concerned.
Article 159
Winding-up of reinsurance
undertakings
Where a reinsurance undertaking is wound up,
commitments arising out of contracts underwritten through a branch
or under the freedom to provide services shall be met in the same
way as those arising out of the other reinsurance contracts of that
undertaking.
 
Return to Index
Solvency ii Introduction (1) to (10)
Solvency ii Introduction (11) to (20)
Solvency ii Introduction (21) to (30)
Solvency ii Introduction (31) to (40)
Solvency ii Introduction (41) to (50)
Solvency ii Introduction (51) to (60)
Solvency ii Introduction (61) to (70)
Solvency ii Introduction (71) to (80)
Solvency ii Introduction (81) to (95)
Solvency ii Articles 1 to 10
Solvency ii Articles 11 to 20
Solvency ii Articles 21 to 30
Solvency ii Articles 31 to 39
Solvency ii Articles 40 to 49
Solvency ii Articles 50 to 62
Solvency ii Articles 63 to 71
Solvency ii Articles 72 to 85
Solvency ii Articles 86 to 99
Solvency ii Articles 100 to 125
Solvency ii Articles 126 to 142
Solvency ii Articles 143 to 159
Solvency ii Articles 160 to 173
Solvency ii Articles 174 to 203
Solvency ii Articles 204 to 215
Solvency ii Articles 216 to 233
Solvency ii Articles 234 to
262
Solvency ii Articles 263 to 298
Solvency ii Articles 300 to 313
Solvency ii ANNEX 1 to 3
Solvency ii ANNEX 4 to 5
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