The Solvency ii
Directive
CHAPTER
X
SUBSIDIARIES OF INSURANCE AND REINSURANCE UNDERTAKINGS
GOVERNED BY THE LAWS OF A THIRD COUNTRY AND ACQUISITIONS OF HOLDINGS
BY SUCH UNDERTAKINGS
Article 174
Information from
Member States to the Commission
The supervisory authorities
of the Member States shall inform the Commission and the supervisory
authorities of the other Member States of any authorisation of a
direct or indirect subsidiary, one or more of whose parent
undertakings are governed by the laws of a third country.
That information shall also contain an indication of the
structure of the group concerned.
Whenever an undertaking
governed by the law of a third country acquires a holding in an
insurance or reinsurance undertaking authorised in the Community
which would turn that insurance or reinsurance undertaking into a
subsidiary of that third country undertaking the supervisory
authorities of the home Member State shall inform the Commission and
the supervisory authorities of the other Member
States.
Article 175
Third-country treatment of
Community insurance and reinsurance undertakings
1. Member
States shall inform the Commission of any general difficulties
encountered by their insurance or reinsurance undertakings in
establishing themselves and operating in a third country or carrying
on activities in a third country.
2. The Commission shall,
periodically, submit a report to the Council examining the treatment
accorded, in third countries, to insurance or reinsurance
undertakings authorised in the Community, as regards the following:
(a) the establishment in third countries of insurance or
reinsurance undertakings authorised in the Community;
(b) the
acquisition of holdings in third-country insurance or reinsurance
undertakings;
(c) the carrying on of insurance or reinsurance
activities by such established undertakings;
(d) the
cross-border provision of insurance or reinsurance activities from
the Community to third countries.
The Commission shall submit
those reports to the Council, together with any appropriate
proposals or recommendations.
TITLE II
SPECIFIC
PROVISIONS FOR INSURANCE AND REINSURANCE
CHAPTER
I
APPLICABLE LAW AND CONDITIONS OF DIRECT INSURANCE
CONTRACTS
SECTION 1 - APPLICABLE LAW
Article
176
Applicable Law
Any Member State not subject to
the application of Regulation (EC) No 593/2008 shall apply the
provisions of that Regulation in order to determine the law
applicable to insurance contracts falling within the scope of
Article 7 of that Regulation.
SECTION 2 – COMPULSORY
INSURANCE
Article 177
Related
obligations
1. Non-life insurance undertakings may offer and
conclude compulsory insurance contracts under the conditions set out
in this Article.
2. When a Member State imposes an obligation
to take out insurance, an insurance contract shall not satisfy that
obligation unless it complies with the specific provisions relating
to that insurance laid down by that Member State.
3. Where a
Member State imposes compulsory insurance and the insurance
undertaking is required to notify the supervisory authorities of any
cessation of cover, such cessation may be invoked against injured
third parties only in the circumstances laid down by that Member
State.
4. Each Member State shall communicate to the
Commission the risks against which insurance is compulsory under its
legislation, stating the following:
(a) the specific legal
provisions relating to that insurance;
(b) the particulars
which must be given in the certificate which a non life insurance
undertaking must issue to an insured person where that Member State
requires proof that the obligation to take out insurance has been
complied with. A Member State may require that those particulars
include a declaration by the insurance undertaking to the effect
that the contract complies with the specific provisions relating to
that insurance.
The Commission shall publish the particulars
referred to in the first subparagraph in the Official Journal of the
European Union.
SECTION 3 - GENERAL
GOOD
Article 178
General good
The Member State
in which a risk is situated, or the Member State of the commitment
shall not prevent a policyholder from concluding a contract with an
insurance undertaking authorised under the conditions of Article 14
as long as that conclusion of contract does not conflict with legal
provisions protecting the general good in the Member State in which
the risk is situated, or in the Member State of the
commitment.
SECTION 4 - CONDITIONS OF INSURANCE CONTRACTS
AND SCALES OF PREMIUMS
Article 179
Non-life
insurance
1. Member States shall not require the prior
approval or systematic notification of general and special policy
conditions, scales of premiums, or forms and other printed documents
which an insurance undertaking intends to use in its dealings with
policyholders.
Member States may only require non-systematic
notification of those policy conditions and other documents for the
purpose of verifying compliance with national provisions concerning
insurance contracts. Those requirements may not constitute a prior
condition for an insurance undertaking to carry on
business.
2. A Member State which makes insurance compulsory
may require that insurance undertakings communicate to its
supervisory authority the general and special conditions of such
insurance before circulating them.
3. Member States may not
retain or introduce an obligation of prior notification or approval
of proposed increases in premium rates except as part of general
price-control systems.
Article 180
Life
insurance
Member States shall not require the prior approval
or systematic notification of general and special policy conditions,
scales of premiums, technical bases used in particular for
calculating scales of premiums and technical provisions or forms and
other printed documents which a life insurance undertaking intends
to use in its dealings with policyholders.
However, the home
Member State may, for the sole purpose of verifying compliance with
national provisions concerning actuarial principles, require
systematic communication of the technical bases used in particular
for calculating scales of premiums and technical provisions.. Those
requirements may not constitute a prior condition for an insurance
undertaking to carry on business.
SECTION 5 -
INFORMATION FOR POLICYHOLDERS
SUBSECTION 1 - NON-LIFE
INSURANCE
Article 181
General Information for
policyholders
1. Before a non-life insurance contract is
concluded the non-life insurance undertaking shall inform the
policyholder of the following:
(a) the law applicable to the
contract, where the parties do not have a free choice;
(b)
the fact that the parties are free to choose the law applicable and
the law the insurer proposes to choose.
The insurance
undertaking shall also inform the policyholder of the arrangements
for handling complaints of policyholders concerning contracts
including, where appropriate, the existence of a complaints body,
without prejudice to the right of the policyholder to take legal
proceedings.
2. The obligations referred to in paragraph 1
shall apply only where the policyholder is a natural
person.
3. The detailed rules for implementing paragraphs 1
and 2 shall be laid down by the Member State in which the risk is
situated.
Article 182
Additional information in
the case of non-life insurance offered under the right of
establishment or the freedom to provide services
1. Where
non-life insurance is offered under the right of establishment or
the freedom to provide services, the policyholder shall, before any
commitment is entered into, be informed of the Member State in which
the head office or, where appropriate, the branch with which the
contract is to be concluded is situated.
Any documents issued
to the policyholder must convey the information referred to in the
first subparagraph.
The obligations imposed in the first and
second subparagraphs of this paragraph shall not apply to large
risks ▌.
2. The contract or any other document granting
cover, together with the insurance proposal where it is binding upon
the policyholder, shall state the address of the head office, or,
where appropriate, of the branch of the non-life insurance
undertaking which grants the cover.
The Member States may
require that the name and address of the representative of the
non-life insurance undertaking referred to in point (a) of Article
146(2) also appear in the documents referred to in the first
subparagraph of this paragraph.
SUBSECTION 2 - LIFE
INSURANCE
Article 183
Information for
policyholders
1. Before the life insurance contract is
concluded, at least the information set out in paragraphs 2, 3 and
3a shall be communicated to the policyholder.
2. The
following information about the life insurance undertaking shall be
communicated:
(a) the name of the undertaking and its legal
form;
(b) the name of the Member State in which the head
office and, where appropriate, the branch concluding the contract is
situated;
(c) the address of the head office and, where
appropriate, of the branch concluding the contract;
(ca) a
concrete reference to the report on the solvency and financial
condition as laid down in Article 50, allowing the policyholder easy
access to this information.
3. The following information
about the commitment shall be communicated:
(a) definition
of each benefit and each option;
(b) term of the
contract;
(c) means of terminating the contract;
(d)
means of payment of premiums and duration of payments;
(e)
means of calculation and distribution of bonuses;
(f)
indication of surrender and paid-up values and the extent to which
they are guaranteed;
(g) information on the premiums for each
benefit, both main benefits and supplementary benefits, where
appropriate;
(h) for unit-linked policies, definition of the
units to which the benefits are linked;
(i) indication of the
nature of the underlying assets for unit-linked policies;
(j)
arrangements for application of the cooling-off period;
(k)
general information on the tax arrangements applicable to the type
of policy;
(l) the arrangements for handling complaints
concerning contracts by policyholders, lives assured or
beneficiaries under contracts including, where appropriate, the
existence of a complaints body, without prejudice to the right to
take legal proceedings;
(m) law applicable to the contract
where the parties do not have a free choice or, where the parties
are free to choose the law applicable, the law the assurer proposes
to choose.
3a. In addition, specific information shall be
supplied in order to provide a proper understanding of the risks
underlying the contract which are assumed by the
policyholder.
4. The policyholder shall be kept informed
throughout the term of the contract of any change concerning the
following information:
(a) the policy conditions, both
general and special;
(b) the name of the life insurance
undertaking, its legal form or the address of its head office and,
where appropriate, of the branch which concluded the
contract;
(c) all the information listed in points (d) to (j)
of paragraph 3 in the event of a change in the policy conditions or
amendment of the law applicable to the contract;
(d) every
year, information on the state of bonuses;
(da) where, in
connection with an offer for or conclusion of a life assurance, the
insurer provides figures relating to the amount of potential
payments above and beyond the contractually agreed payments, he must
provide the policyholder with a specimen calculation whereby the
potential maturity payment is set out applying the basis for the
premium calculation using three different rates of interest. This
shall not apply to term insurances and contracts. The insurer must
inform the policyholder in a clear and comprehensible manner that
the specimen calculation is only a model of computation based on
notional assumptions, and that the policyholder may not derive any
contractual claims from the specimen calculation;
(db) in the
case of insurances with profit participation, the insurer must
inform the policyholder annually in writing of the status of his
claims, incorporating the profit participation. Furthermore, where
the insurer has provided figures about the potential future
development of the profit participation, he must inform the
policyholder of differences between the actual development and the
initial data.
5. The information referred to in paragraphs 2,
3, 3a and 4 shall be provided in a clear and accurate manner, in
writing, in an official language of the Member State of the
commitment.
However, such information may be in another
language if the policyholder so requests and the law of the Member
State so permits or the policyholder is free to choose the law
applicable.
6. The Member State of the commitment may require
life insurance undertakings to furnish information in addition to
that listed in paragraphs 2, 3, 3a and 4 only if it is necessary for
a proper understanding by the policyholder of the essential elements
of the commitment.
7. The detailed rules for implementing
paragraphs 1 to 6 shall be laid down by the Member State of the
commitment.
Article 184
Cancellation
period
1. Member States shall prescribe that policyholders
who conclude individual life insurance contracts shall have a period
of between 14 and 30 days from the time when they were informed that
the contract had been concluded within which to cancel the
contract.
The giving of notice of cancellation by the
policyholders shall have the effect of releasing them from any
future obligation arising from the contract.
The other legal
effects and the conditions of cancellation shall be determined by
the law applicable to the contract, notably as regards the
arrangements for informing the policyholder that the contract has
been concluded.
2. The Member States may choose not to apply
paragraph 1 in the following cases:
(a) where a contract has
a duration of six months or less;
(b) where, because of the
status of the policyholder or the circumstances in which the
contract is concluded, the policyholder does not need special
protection.
Where Member States make use of the option set
out in the first subparagraph they shall specify that fact in their
law.
CHAPTER II
PROVISIONS SPECIFIC TO NON-LIFE
INSURANCE
SECTION 1 - GENERAL PROVISIONS
Article
185
Policy Conditions
General and special policy
conditions shall not include any conditions intended to meet, in an
individual case, the particular circumstances of the risk to be
covered.
Article 186
Abolition of
monopolies
Member States shall ensure that monopolies in
respect of the taking up of the business of certain classes of
insurance, granted to bodies established within their territories
and referred to in Article 8, are abolished.
Article
187
Participation in national guarantee schemes
Host
Member States may require non-life insurance undertakings to join
and participate, on the same terms as non-life insurance
undertakings authorised in their territories, in any scheme designed
to guarantee the payment of insurance claims to insured persons and
injured third parties.
SECTION 2 - COMMUNITY
CO-INSURANCE
Article 188
Community co-insurance
operations
1. This Section shall apply to Community
co-insurance operations which shall be those co-insurance operations
which relate to one or more risks classified in classes 3 to 16 of
point A of Annex I and which satisfy the following
conditions:
(a) the risk is a large risk;
(b) the
risk is covered by a single contract at an overall premium and for
the same period by two or more insurance undertakings each for its
own part as 'co-insurers', one of them being the leading insurance
undertaking ;
(c) the risk is situated within the
Community;
(d) for the purpose of covering the risk, the
leading insurance undertaking is treated as if it were the insurance
undertaking covering the whole risk;
(e) at least one of the
co-insurers participates in the contract through a head office or a
branch established in a Member State other than that of the leading
insurance undertaking;
(f) the leading insurance undertaking
fully assumes the leader's role in co-insurance practice and in
particular determines the terms and conditions of insurance and
rating.
3. Articles 145 to 150 shall apply only to the
leading insurance undertaking.
4. Co-insurance operations
which do not satisfy the conditions set out in paragraph 1 shall
remain subject to the provisions of this Directive except those of
this Section.
Article 189
Participation in
Community co-insurance
The right of insurance undertakings to
participate in Community co-insurance shall not be made subject to
any provisions other than those of this Section.
Article
190
Technical provisions
The amount of the technical
provisions shall be determined by the different co-insurers
according to the rules fixed by their home Member State or, in the
absence of such rules, according to customary practice in that
State.
However, the technical provisions shall be at least
equal to those determined by the leading insurer according to the
rules of its home Member State.
Article
191
Statistical data
Home Member States shall ensure
that co-insurers keep statistical data showing the extent of
Community co-insurance operations in which they participate and the
Member States concerned.
Article 192
Treatment of
co-insurance contracts in winding up proceedings
In the event
of an insurance undertaking being wound up, liabilities arising from
participation in Community co-insurance contracts shall be met in
the same way as those arising under the other insurance contracts of
that undertaking without distinction as to the nationality of the
insured and of the beneficiaries.
Article
193
Exchange of information between supervisory
authorities
For the purposes of the implementation of this
Section the supervisory authorities of the Member States shall, in
the framework of the cooperation referred to in Title I, Chapter IV,
Section 5, provide each other with all the information
necessary.
Article 194
Cooperation on
implementation
The Commission and the supervisory authorities
of the Member States shall cooperate closely for the purposes of
examining any difficulties which might arise in implementing this
Section.
In the course of this cooperation they shall examine
in particular any practices which might indicate that the leading
insurance undertaking does not assume the role of the leader in
co-insurance practice or that the risks clearly do not require the
participation of two or more insurers for their
coverage.
SECTION 3 - ASSISTANCE
Article
195
Activities similar to tourist assistance
Member
States may make the provision of assistance to persons who get into
difficulties in circumstances other than those referred to in
Article 2 (2) subject to this Directive.
If a Member State
makes use of this possibility it shall treat such activity as if it
were classified in class 18 in point A of Annex I.
The second
paragraph shall in no way affect the possibilities for
classification laid down in Annex I for activities which obviously
come under other classes.
SECTION 4 – LEGAL EXPENSES
INSURANCE
Article 196
Scope of this Section
1.
This Section shall apply to legal expenses insurance referred to in
class 17 in point A of Annex I whereby an insurance undertaking
promises, against the payment of a premium, to bear the costs of
legal proceedings and to provide other services directly linked to
insurance cover, in particular with a view to the
following:
(a) securing compensation for the loss, damage or
injury suffered by the insured person, by settlement out of court or
through civil or criminal proceedings;
(b) defending or
representing the insured person in civil, criminal, administrative
or other proceedings or in respect of any claim made against that
person.
2. This Section shall not apply to any of the
following:
(a) legal expenses insurance where such insurance
concerns disputes or risks arising out of, or in connection with,
the use of sea-going vessels;
(b) the activity pursued by an
insurance undertaking providing civil liability cover for the
purpose of defending or representing the insured person in any
inquiry or proceedings if that activity is at the same time pursued
in the own interest of that insurance undertaking under such
cover;
(c) where a Member State so chooses, the activity of
legal expenses insurance undertaken by an assistance insurer which
complies with the following conditions:
(i) the activity is
carried out in a Member State other than the one the habitual
residence of the insured person is situated;
(ii) the
activity forms part of a contract covering solely the assistance
provided for persons who fall into difficulties while travelling,
while away from home or while away from their permanent
residence.
In the case referred to in point (c) of the first
subparagraph the contract shall clearly state that the cover
concerned is limited to the circumstances referred to in that point
and is ancillary to the assistance.
Article
197
Separate contracts
Legal expenses cover shall be
the subject of a contract separate from that drawn up for the other
classes of insurance or shall be dealt with in a separate section of
a single policy in which the nature of the legal expenses cover and,
should the Member State so request, the amount of the relevant
premium are specified.
Article 198
Management of
claims
1. The home Member State shall ensure that insurance
undertakings adopt, in accordance with the option chosen by the
Member State, or at their own choice, if the Member State so agrees,
at least one of the methods for the management of claims set out in
paragraphs 2, 3 and 4.
Whichever solution is adopted, the
interest of persons having legal expenses cover shall be regarded as
safeguarded in an equivalent manner under this Section.
2
Insurance undertakings shall ensure that no member of the staff who
is concerned with the management of legal expenses claims or with
legal advice in respect thereof carries on at the same time a
similar activity in another undertaking having financial, commercial
or administrative links with the first insurance undertaking and
carrying on one or more of the other classes of insurance set out in
Annex I.
Composite insurance undertakings shall ensure that
no member of the staff who is concerned with the management of legal
expenses claims or with legal advice in respect thereof carries on
at the same time a similar activity for another class transacted by
them.
3. The insurance undertaking shall entrust the
management of claims in respect of legal expenses insurance to an
undertaking having separate legal personality. That undertaking
shall be mentioned in the separate contract or separate section
referred to in Article 197.
If the undertaking having
separate legal personality has links with an insurance undertaking
which carries on one or more of the classes of insurance referred to
in point A of Annex I, members of the staff of the undertaking
having separate legal personality who are concerned with the
management of claims or with legal advice connected with such
management may not pursue the same or a similar activity in the
other insurance undertaking at the same time. Member States may
impose the same requirements on the members of the administrative or
management body.
4. In the contract, the insurance
undertaking shall grant the insured persons the right to entrust the
defence of their interests, from the moment that they have the right
to claim from their insurer under the policy, to a lawyer of their
choice or, to the extent that national law so permits, any other
appropriately qualified person.
Article 199
Free
choice of lawyer
1. Any contract of legal expenses insurance
shall expressly provide the following:
(a) that, where
recourse is had to a lawyer or other person appropriately qualified
according to national law in order to defend, represent or serve the
interests of the insured person in any inquiry or proceedings, that
insured person shall be free to choose such lawyer or other
person;
(b) that the insured persons shall be free to choose
a lawyer or, if they so prefer and to the extent that national law
so permits, any other appropriately qualified person, to serve their
interests whenever a conflict of interests arises.
2. For the
purposes of this Section "lawyer" means any person entitled to
pursue his professional activities under one of the denominations
laid down in Council Directive 77/249/EEC of 22 March 1977 to
facilitate the effective exercise by lawyers of freedom to provide
services .
Article 200
Exception to the free
choice of lawyer
1. Member States may provide exemption from
Article 199(1) for legal expenses insurance if all the following
conditions are fulfilled:
(a) the insurance is limited to
cases arising from the use of road vehicles in the territory of the
Member State concerned;
(b) the insurance is connected to a
contract to provide assistance in the event of accident or breakdown
involving a road vehicle;
(c) neither the legal expenses
insurance undertaking nor the assistance insurer carries out any
class of liability insurance;
(d) measures are taken so that
the legal counsel and representation of each of the parties to a
dispute is effected by completely independent lawyers when these
parties are insured for legal expenses by the same insurance
undertaking.
2. An exemption granted pursuant to paragraph 1
shall not affect the application of Article 198.
Article
201
Arbitration
Member States shall, for the
settlement of any dispute between the legal expenses insurance
undertaking and the insured and without prejudice to any right of
appeal to a judicial body which might be provided for by national
law, provide for an arbitration or other procedure offering
comparable guarantees of objectivity.
The insurance contract
shall provide for the right of the insured person to have recourse
to such a procedure.
Article 202
Conflict of
interest
Whenever a conflict of interests arises or there is
disagreement over the settlement of the dispute, the legal expenses
insurer or, where appropriate, the claims settlement office shall
inform the person insured of the right referred to in Article 199(1)
- the possibility of having recourse to the procedure referred to in
Article 201.
Article 203
Abolition of
specialisation of legal expenses insurance
Member States
shall abolish all provisions which prohibit an insurance undertaking
from carrying on within their territory legal expenses insurance and
other classes of insurance at the same
time.
  
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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