European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations, 1991

• Jurisdiction: Ireland
• Citation: IR SI 142/1991

S.I. No. 142 of 1991.

EUROPEAN COMMUNITIES (NON-LIFE INSURANCE) (AMENDMENT) (NO. 2) REGULATIONS, 1991.

I, DESMOND O'MALLEY, Minister for Industry and Commerce, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purposes of giving effect to Council Directive No. 88/357/EEC of 22 June, 1988, hereby make the following Regulations: 1. (1) These Regulations may be cited as the European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations, 1991, and shall come into operation on the 17th June, 1991.

(2) These Regulations shall be construed as one with the Principal Regulations, as amended. 2. In these Regulations:

"Insurance Regulations" means the Insurance Acts 1909 to 1990, regulations relating to insurance business made under those Acts and Regulations made under the European Communities Act, 1972 , including these Regulations;

"the Principal Regulations" means the European Communities (Non-Life Insurance) Regulations 1976 (S.I. 115 of 1976). 3. Article 2(1) of the Principal Regulations is hereby amended by the substitution for the definition of "authorisation" of the following:

" 'authorisation' except where the context otherwise requires means—

(i) authorisation granted by the Minister under these Regulations,

(ii) authorisation granted by the authority charged by law with the duty of supervising the activities of insurance undertakings in a State which is a member of the European Communities in accordance with Article 6 of the First Directive;

and references to authorisation, in relation to non-life insurance in the Insurance Act, 1989 , shall be construed accordingly;". 4. (1) Article 2(1) of the Principal Regulations is hereby amended by the addition of the following definitions—

"the first Directive" means EEC Council Directive 73/239/EEC(1)

"the second Directive" means EEC Council Directive 88/357/EEC(2)

"undertaking", except where the context otherwise requires, means—

(i) for the purposes of carrying on non-life insurance in the State from an establishment in the State:

the holder of an authorisation under Article 6 or Article 23 of the first Directive;

(ii) for the purposes of carrying on non-life insurance by way of services into the State from an establishment in another member State:

the holder of an authorisation under Article 6 of the first Directive;

"establishment" means the head office, agency or branch of an undertaking subject to Article 3 of the second Directive;

"member State where the risk is situated" means:

(i) the member State in which the property is situated, where the insurance relates either to buildings or to buildings and their contents, in so far as the contents are covered by the same insurance policy,

(1)O.J. No. L 228, 16.8.1973, p.3.

(2)O.J. No. L 172, 4.7.1988, p.1.

(ii) the member State of registration, where the insurance relates to vehicles of any type,

(iii) the member State where the policyholder took out the policy in the case of policies of a duration of four months or less covering travel or holiday risks, whatever the class concerned,

(iv) the member State where the policyholder has his habitual residence, or, if the policyholder is a legal person, the member State where the latter's establishment, to which the contract relates, is situated, in all cases not explicitly covered by the foregoing subparagraphs;

"member State of establishment" means the member State in which the establishment covering the risk is situated;

"member State of provision of services" means the member State in which the risk is situated when it is covered by an establishment situated in another member State;

"large risks" has the meaning assigned to it by Article 3A of the Principal Regulations, inserted by Article 5 of these Regulations.

(2) Article 2 of the Principal Regulations is hereby amended by the substitution, for subarticle (2), of the following:

"(2) In these Regulations any word or phrase to which a meaning is assigned by the first Directive or by the second Directive has that meaning.". 5. The Principal Regulations are hereby amended by the addition of the following Articles:

"3A. (1) For the purposes of these Regulations 'large risks' means:

( a ) risks classified under classes 4, 5, 6, 7, 11 and 12 of the Annex;

( b ) risks classified under classes 14 and 15 of the Annex, where the policyholder is engaged in an industrial, commercial or professional activity and the risks relate to such activity;

( c ) risks classified under classes 8, 9, 13 and 16 of the Annex in so far as the policyholder exceeds the limits of at least two of the following three criteria:

first stage: until 31 December, 1992:

balance sheet total: 12.4 million ECU;

net turnover: 24 million ECU;

average number of employees during the financial year: 500

second stage: from 1 January 1993:

balance sheet total: 6.2 million ECU;

net turnover: 12.8 million ECU;

average number of employees during the financial year: 250.

(2) Where the policyholder belongs to a group of undertakings for which consolidated accounts within the meaning of Council Directive 83/349/EEC(3) are drawn up, the criteria specified in paragraph (c), subarticle (1) of this Article shall be applied on the basis of consolidated accounts.

(3) Risks insured for professional associations, joint ventures or temporary groupings shall also be classified as large risks where they comply with the criteria under paragraph (c) of subarticle (1) of this article.".

"3B. For the purposes of the Principal Regulations general and special policy conditions shall not include specific conditions to meet, in an individual case, the particular circumstances of the risk to be covered.". 6. (1) Article 4 of the Principal Regulations is hereby amended by the addition of the following after Article 4, subarticle (2) (b):

(3)O.J. No. L193, 18.7.1983, p.I.

"(2A) For the purpose of these Regulations any permanent presence of an insurance undertaking in a member State shall shall be regarded as an agency or branch, even if that presence does not take the form of a branch or agency but consists merely of an office managed by the insurance undertaking's own staff or by a person who is independent but has permanent authority to act for the insurance undertaking in the same way as an agency."

(2) Article 4 of the Principal Regulations is hereby amended by the substitution, for subarticle (6), of the following:

"(6) ( a ) An undertaking which has its head office in another member State and is the holder of an authorisation granted by the supervisory authorities of that member State in respect of the carrying on of insurance business in the classes of the Annex to which the second Directive applies shall be deemed to be carrying on insurance business in the State where through an establishment situated in another member State it covers a risk situated in the State, notwithstanding subarticle (1) of this Article.

( b ) An undertaking which has its head office in another member State and is the holder of an authorisation granted by the supervisory authorities of another member State in respect of the carrying on of insurance business in the classes of the Annex to which the second Directive applies may, notwithstanding subarticle (1) of this Article, carry on in the State insurance business, subject to Article 13 of the second Directive in the classes of the Annex to which the second Directive applies from an establishment in another member State provided that the undertaking concerned complies with the appropriate provisions of these Regulations.

( c ) An undertaking whose head office is situated in a State which is not a member of the European Communities and which is the holder of an authorisation granted by the supervisory authorities of that State or which is the holder of an authorisation granted by the supervisory authorities of a member State under Article 23 of the first Directive in respect of the carrying on of business in insurance of a class to which these Regulations apply may, notwithstanding subarticle (1) of this Article, carry on in the State insurance business by way of services in the following classes of the Annex, namely, 4, 5, 6, 7, 11 and 12 and in classes 1 and 10 in so far as they relate to the insurance of passengers in marine and aviation vehicles and carrier's liability insurance, respectively, provided that the undertaking complies with the provisions of these Regulations relating to large risks and such business shall be deemed to be insurance business carried on in the State." 7. Article 5 of the Principal Regulations is hereby amended by the substitution for subarticle (3) of the following:

"(3) Subject to these Regulations, the Insurance Regulations shall, subject to any necessary modifications, apply to all undertakings to which these Regulations relate.". 8. Article 14 of the Principal Regulations is hereby amended by the substitution of the following for subarticle 14 (5):

"(5) For the purposes of applying the first subparagraph of Article 15 (2) and Article 24 of the first Directive, assets representing an underwriting liability shall be determined in accordance with Section E of the Annex (inserted by amendment Regulations of 1991) relating to matching rules." 9. The Principal Regulations are hereby amended by the insertion of the following Article:

"21A. The Minister may take any measures in accordance with the Insurance Regulations with regard to an undertaking which is established in the State to ensure that the activities of the undertaking remain in conformity with the laws, regulations and administrative provisions with which the undertaking has to comply in another member State.". 10. (1) The Principal Regulations are hereby amended by the substitution for Article 22 of the following Article:

"Assignment of Policies

22. (1)...