S.I. No. 65/1983 - European Communities (Co-Insurance) Regulations, 1983.

S.I. No. 65 of 1983.

EUROPEAN COMMUNITIES (CO-INSURANCE) REGULATIONS, 1983.

I, FRANK CLUSKEY, Minister for Trade, Commerce and Tourism, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 , (No. 27 of 1972), and for the purpose of giving effect to Council Directive 78/473/EEC ¹, hereby make the following Regulations:

¹O.J. No. L151. 7.6.1978, pp. 25—27.

1. These Regulations may be cited as the European communities (Co-insurance) Regulations, 1983 and shall come into operation on the 31st day of March, 1983.

2. In these Regulations—

"authorisation" means an authorisation under the European Communities (Non-Life Insurance) Regulations, 1976 ( S.I. No. 115 of 1976 ), except where the context otherwise requires;

"Community co-insurance operation" has the meaning given to it by the Schedule to these Regulations;

"the Directive" means EEC Council Directive 78/473/EEC;

"leading insurer", in relation to a Community co-insurance operation, means an insurer who—

( a ) for the purpose of covering the risk concerned, is treated by the persons concerned as if he were the insurer covering the whole risk, and

( b ) fully assumes the leader's role in co-insurance practice and in particular determines the terms and conditions of insurance for the operation and rating;

"member State" means a State which is a member of the European Communities;

"the Minister" means the Minister for Trade, Commerce and Tourism;

"supervisory authority" means, in respect of any territory within the European Economic Community, the authority charged by law with the duty of supervising the activities of insurance undertakings in that territory;

"unit of account" has the same meaning as in the European Communities (Non-Life Insurance) (Amendment) Regulations, 1976 ( S.I. No. 276 of 1976 ).

3. These Regulations apply to Community co-insurance operations as defined in the Schedule to these Regulations.

4. (1) Notwithstanding anything to the contrary in the Insurance Acts, 1909 to 1981, or in the European Communities (Non-Life Insurance) Regulations, 1976, an insurer established in another member State may participate with a leading insurer who is the holder of an authorisation in a Community co-insurance operation in respect of a risk situated in the State, if the first-mentioned insurer is operating through a head office which is the holder of an authrorisation granted by the supervisory authority of another member State or through a branch which is the holder of an authorisation granted by the supervisory authority of another member State, the head office of which is also the holder of such an authorisation.

(2) Where the risk being covered falls into class 4, 5, 6, 7, 11 or 12 specified in the Schedule to the European Communities (Non-Life Insurance) Regulations, 1976, an insurer established in another member State which is operating through a head office which is the holder of an authorisation granted by the supervisory authority of another member State or an insurer established in another member State which is operating through a branch which is the holder of an authorisation granted by the supervisory authority of another member State the head office of which is also the holder of such an authorisation, may act as a leading insurer.

(3) A prosecution for an offence under these Regulations may be brought by the Minister.

5. (1) Subject to subarticle (2) of this Article, an insurer holding an authorisation shall, in respect of a liability arising under a Community co-insurance operation, establish and maintain technical reserves calculated in accordance with the method applied to direct insurance business in the State.

(2) In the case of an insurer who is not the leading insurer, that part of the technical reserves consisting of the provision for outstanding claims arising under a Community co-insurance operation shall be not less than the amount of the provision determined by the leading insurer, due regard being had to the proportion of the risk covered by the first-mentioned insurer.

(3) The technical reserves shall be represented by matching assets. Pending the introduction of matching rules, this shall mean that where an underwriting liability is expressed in a particular currency, assets representing that liability shall either be expressed in that currency or be directly realisable in that currency.

(4) Assets of an amount equivalent to the amount of the technical reserves shall be localised at the option of the insurer, either in the State in accordance with Regulations or in the member State in which the leading insurer is established.

6. An insurer holding an authorisation and participating in a Community co-insurance operation shall be required to furnish to the Minister annually, or at such more frequent intervals as the Minister may request, such information and in such form and manner as he may require for the purposes of the implementation of the Directive or these Regulations.

7. Subject to these Regulations, the provisions of the Insurance Acts, 1909 to 1981, and of the European Communities (Non-Life Insurance) Regulations, 1976, shall, where applicable and subject to any necessary modifications, apply to activities conducted under these Regulations.

8. (1) The provisions of Article 4 (6) of the European Communities (Non-Life Insurance) Regulations, 1976, are hereby amended to the extent that the requirements of notification and consent contained therein shall not apply to insurers other than the leading insurer participating in a Community co-insurance operation and relating to the classes of business covered by Article 4 (6) of the European Communities (Non-Life Insurance) Regulations, 1976.

(2) For the purposes of participating as the leading insurer in a Community co-insurance operation where the risk covered falls into class 4 specified in the Schedule to the European Communities (Non-Life Insurance) Regulations, 1976, the insurer referred to in Article 4 (2) of these Regulations may carry on insurance business in the State without an authorisation provided that the undertaking has notified the Minister of its intention to carry on such business in that manner and that the Minister has given his consent.

9. (1) A person who fails to comply with any provision of these Regulations shall be guilty of an offence and shall be liable on summary prosecution to a fine not exceeding £800.

(2) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of a director, manager, secretary or other officer of the body corporate, the director, manager, secretary or other officer or any person purporting to act in such capacity shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished accordingly.

SCHEDULE

1. An insurance operation is a Community co-insurance operation for the purposes of these Regulations if—

( a ) it relates to any of the classes specified in paragraph 2 of this Schedule, and

( b ) in the case of a risk situated in the State, it meets the criteria specified in paragraph 3 of this Schedule, and

( c ) it satisfies all the conditions specified in paragraph 4 of this Schedule.

2. The classes referred to in paragraph 1 (a) of this Schedule are—

class 4 (railway rolling stock),

class 5 (aircraft),

class 6 (ships),

class 7 (goods in transit),

class 8 (fire and natural forces),

class 9 (other damage to property),

class 11 (aircraft liability),

class 12 (liability for ships),

class 13 (general liability), excluding risks which concern damage arising from nuclear sources or from medicinal products,

class 16 (miscellaneous financial loss), as set out in Section A of Schedule 1 to the European Communities (Non-Life Insurance) Regulations, 1976.

3. The criteria referred to in paragraph 1(b) of this Schedule are:

—the policyholder pursues an independent occupation of a commercial, industrial or professional nature and the risk to be covered relates to that occupation;

—in the case of risks in classes 8, 9 and 16 referred to in paragraph 2 of this Schedule, the total sum insured under any one contract is not less than 50 million units of account;

—in the case of risks in class 13 referred to in paragraph 2 of this Schedule, the turnover of the insured in respect of the activities giving rise to the cover is not less than 200 million units of account;

—in the case of risks in the classes 4, 5, 6, 7, 11 and 12 referred to in paragraph 2 of this Schedule and for such time as Article 4 (6) of the European Communities (Non-Life Insurance) Regulations, 1976, as at the time of these Regulations, remains in force, there shall be no restriction on the nature or the size of a risk which may be the subject of a Community co-insurance operation.

4. The conditions referred to in paragraph 1(c) of this Schedule are—

( a ) that the risk is covered by a single contract at an overall premium and for the same period by two or more co-insurers each for his own part, one of whom shall be the leading insurer;

( b ) that the risk is situated (within the meaning of paragraph 5 of this Schedule) within a member State;

( c ) that at least one of the co-insurers participating in the contract does so through a head office agency or branch established in a member State, other than that in which the leading insurer's head office (or if the leading insurer is participating through an agency or branch, that agency or branch) is established.

5. For the purposes of paragraph (4) (b) of this Schedule, a risk is situated in a member State—

( a ) in the case of insurance relating to immovable property, if the property is situated in that member State,

( b ) in the case of insurance relating to a registered vessel, aircraft or vehicle (including railway rolling stock), if the vessel, aircraft or vehicle is registered in that member State, and

( c ) in any other case, if the policyholder is incorporated or has his habitual residence in that member State.

GIVEN under my Official Seal this 3rd day of March, 1983.

FRANK CLUSKEY,

Minister for Trade, Commerce

and Tourism.

EXPLANATORY NOTE.

These Regulations give effect to the Council Directive of the European Communities of 30th May, 1978, (78/473/EEC).

The Regulations apply to all non-life insurance undertakings established in the State or who hold an authorisation granted by the supervisory authority of a member State in respect of the classes of business covered by this instrument and whose head offices are situated in a member State. Its purpose it to amend the European Communities (Non-Life Insurance) Regulations, 1976 so as to allow non-established insurers based in the EEC to participate in the coverage of certain risks in Ireland in association with authorised insurers in accordance with the EEC Directive on Community Co-insurance.