Insurance Act, 1989

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Number 3 of 1989

INSURANCE ACT, 1989

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

PART II

Supervision of Insurers

PART III

Payment of Commissions by Insurers

PART IV

Regulation of Insurance Intermediaries

PART V

Miscellaneous

FIRST SCHEDULE

Enactments Repealed

SECOND SCHEDULE

Increase of Penalties

Number 3 of 1989

INSURANCE ACT, 1989

AN ACT TO AMEND AND EXTEND THE INSURANCE ACTS, 1909 TO 1985. [15th March, 1989]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary and General

Short title, collective citation, construction and commencement.

1.—(1) This Act may be cited as the Insurance Act, 1989.

(2) The Insurance Acts, 1909 to 1985, and this Act may be cited together as the Insurance Acts, 1909 to 1989, and shall be construed together as one Act.

(3) This Act shall come into operation on such day or days as may be appointed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so appointed for different purposes and different provisions of this Act.

Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“authorisation” means an authorisation issued by the Minister under the Regulations of 1976 or the Regulations of 1984 to carry on a specified class or description of insurance business;

“authorised agent” in relation to an undertaking means the person designated as authorised agent of the undertaking under the Regulations of 1976 or the Regulations of 1984;

“business” means assurance or insurance business;

“client” means a person who requests an insurance intermediary to arrange insurance on his behalf;

“commission payment” has the meaning given to it by subsection (3);

“the Companies Acts” means the Companies Act, 1963 , and any enactment which is to be construed together with it;

“contravention” in relation to any provision of this Act includes failure to comply with any requirement imposed by or under that provision and “contravene” shall be construed accordingly;

“Council Directive” means a Directive of the Council of the European Communities;

“the Court” means the High Court;

“insurance” includes assurance;

“the Insurance Acts” means the Insurance Acts, 1909 to 1989, and regulations relating to insurance business made under the European Communities Act, 1972;

“insurance agent” means any person who holds an appointment in writing from an insurer enabling him to place insurance business with that insurer, but does not include an insurance broker or an employee of an insurer when the employee is acting for that insurer;

“insurance broker” means a person who, acting with the freedom of choice described in section 44 (1) (b), brings together, with a view to the insurance of risks, persons seeking insurance and insurance undertakings, and carries out work preparatory to the conclusion of contracts of insurance, but does not include an insurance agent or an employee of an insurer when the employee is acting for that insurer;

“insurance intermediary” or “intermediary” means an insurance agent or an insurance broker;

“insurer” means the holder of an authorisation under the Regulations of 1976 or the Regulations of 1984;

“life assurance” means assurance of a class specified in Schedule 1 to the Regulations of 1984;

“non-life insurance” means insurance of a class specified in Schedule 1 to the Regulations of 1976;

“the Minister” means the Minister for Industry and Commerce;

“prescribe” means prescribe by regulations made under this Act;

“regulations” means regulations made under the Insurance Acts, 1909 to 1989, and regulations relating to insurance business made under the European Communities Act, 1972;

“the Regulations of 1976” means the European Communities (Non-Life Insurance) Regulations, 1976 ( S.I. No. 115 of 1976 );

“the Regulations of 1984” means the European Communities (Life Assurance) Regulations, 1984 ( S.I. No. 57 of 1984 );

“solvency certificate” means a certificate issued by the Minister to an undertaking attesting its compliance with the solvency requirements specified in the Regulations of 1976 or the Regulations of 1984 as appropriate;

“supervisory authority” means, in respect of any territory, the authority charged by law with the duty of supervising the activities of insurance undertakings in that territory;

“undertaking” means the holder of an authorisation.

(2) References in the Insurance Acts, 1909 to 1989, to “assurance company” or “insurance company” shall be construed as references to the holder of an authorisation, and references to “licence” shall be construed as references to “authorisation”.

(3) (a) A commission payment, for the purpose of this Act, is a payment, including a commission or other remuneration, reward or benefit in kind, paid or payable by or on behalf of the holder of an authorisation to an insurance intermediary in connection with the insurance business of the holder and includes the time allowed by the holder to the intermediary for the payment by the intermediary to the holder of premiums received by the intermediary for the holder for contracts of insurance entered into by the holder.

(b) The value of the time allowed by an intermediary for the payment of a commission is to be taken into account in the calculation of the value of the time so allowed by the holder.

(4) In this Act a reference to a Part, section or Schedule is to a Part or section of this Act or to a Schedule to this Act, unless it is indicated that reference to some other enactment is intended.

(5) In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

Offences and penalties.

3.— (1) Every person who contravenes a provision of this Act shall be guilty of an offence.

(2) Every person who is guilty of an offence under this Act shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or imprisonment for a term not exceeding six months or both;

(b) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding three years or both.

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

(4) A person convicted of an offence for which a penalty is provided in a provision, mentioned in column (2) of the Second Schedule , of an Act specified in column (1) of that Schedule, shall, in lieu of being liable to the penalty provided in that provision, be liable to the penalty specified in column (3) of that Schedule opposite the mention of that provision in column (2).

(5) If any person in any return, report, certificate or other document required for the purpose of any provision of this Act, or in any application to the Minister for an authorisation, wilfully makes a statement false in any material particular, knowing it to be false, he shall be guilty of an offence.

(6) The provisions of this section are without prejudice to section 109 of the Insurance Act, 1936 (which as adapted by section 2 (2) of this Act relates to offences by the holder of an authorisation) and references to “this Act” in subsections (1) and (4) of the said section 109 shall be construed as references to the Insurance Acts.

Service of documents.

4.—Any notice, requisition, direction or other document which is required or authorised to be served on a person by this Act may be served—

(a) in the case of a company incorporated or society registered in the State, by leaving it at, or sending it by pre-paid ordinary post to, the registered office of the company or society,

(b) in the case of a company incorporated outside the State but having a place of business in the State, by leaving it with, or sending it by pre-paid ordinary post to, the person notified to the Minister under the Insurance Acts as the authorised agent in the State of the company or, if no such person has been notified to the Minister, by the method specified in section 356 of the Companies Act, 1963 ,

(c) in the case of a foreign registered society with a place of business in the State, by leaving it with, or sending it by pre-paid ordinary post to, the person notified to the Minister under the Insurance Acts as the authorised agent in the State of the society or, if no such person has been notified to the Minister, by leaving it at or sending it in the manner aforesaid to the place of business of the society in the State,

(d) in the case of Lloyd's, by leaving it with, or sending it by pre-paid ordinary post to, the person notified to the Minister under the Insurance Acts as the authorised agent of Lloyd's in the State,

(e) in the case of any other person, by leaving it at, or sending it by pre-paid ordinary post to, that person's last known address.

Power to make regulations.

5.—(1) The Minister may make regulations for enabling this Act to have full effect.

(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be expedient for any purpose of this Act.

Orders.

6.—The Minister may by order revoke or amend any order made by him under any provision of this Act other than an order made under section 1 (3).

Fees.

7.—(1) The Minister, with the consent of the Minister for Finance, may by order provide for fees—

(a) to be paid to him annually by the holders of authorisations,

(b) to be paid to him in respect of the issue of a solvency certificate.

(2) The fee for inspection of the register kept under section 21 of the Insurance Act, 1936 shall be such fee not exceeding ten pounds as the Minister with the consent of the Minister for Finance shall from time to time direct and subsection (5) of that section is hereby amended accordingly.

(3) The fees to be paid under this Act shall be collected in money and taken in such manner as the Minister for Finance may from time to time direct, and shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of that Minister.

(4) The Public Offices Fees Act, 1879 shall not apply in respect of fees under this Act.

Laying of orders and regulations before Houses of Oireachtas.

8.—Every order or regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next twenty-one days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Repeals.

9.—Each enactment mentioned in column (2) of the First Schedule is repealed to the extent specified in column (3) of that Schedule opposite the mention of that enactment in column (2).

Expenses.

10.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II

Supervision of Insurers

Submission and publication of returns and documents by insurers.

11.—(1) The Minister may by regulation—

(a) prescribe the returns and documents to be submitted by holders of authorisations,

(b) require any return or document submitted to him to be attested by a person of professional standing specified by the Minister, and by directors and such officers of the company as he may prescribe,

(c) require that any such return or document shall be published in such manner as the Minister sees fit and that any return or document shall be laid before each House of the Oireachtas.

(2) The Minister shall have the right to disclose any such return or document to the supervisory authority of another Member State of the European Communities, where such disclosure is required or authorised by law.

Regulations regarding reserves liabilities, valuation of assets, reinsurance cessions and solvency certificates.

12.—The Minister may make regulations for the proper exercise of his functions under the Insurance Acts in respect of the following—

(a) the calculation of technical or mathematical reserves representing underwriting liabilities,

(b) the valuation of assets of an insurance undertaking,

(c) the nature and spread of assets representing underwriting liabilities and the localisation and matching of such assets,

(d) the calculation of underwriting liabilities,

(e) reinsurance cessions of authorised undertakings including information which undertakings must supply in respect of their reinsurance arrangements,

(f) the procedure, conditions and forms to be involved in the issue of a solvency certificate,

(g) the prohibition or limitation of investments of a specified class or description,

(h) the percentage of distributed surplus allocated to policyholders.

Keeping of records by undertakings.

13.—An undertaking shall maintain at its registered office or place of business in the State proper records of all business carried on by the undertaking in the State under its authorisation.

Separation of assets and liabilities attributable to life assurance business.

14.—(1) Every undertaking authorised to carry on life assurance business—

(a) shall maintain an account in respect of that business and the receipts of that business shall be entered in the account maintained for that purpose and shall be carried to and form the life assurance fund, and

(b) shall maintain such accounting and other records as are necessary for identifying—

(i) the assets representing the fund maintained by the undertaking under paragraph (a) of this subsection, and

(ii) the liabilities attributable to that business.

(2) The provisions of subsection (1) are without prejudice to the obligations of an undertaking to maintain such records as are necessary for the preparation and submission to the Minister of separate accounts and statements for any class or part of a class of business as required from time to time by the Insurance Acts.

Application of assets of undertaking transacting life assurance business.

15.—(1) The assets representing the fund maintained by an undertaking in accordance with section 14 (1)—

(a) shall be applied for the purposes of that business, and

(b) shall not be transferred so as to be available for other purposes of the undertaking except where the transfer constitutes reimbursement of expenditure borne by other assets (in the same or the last preceding financial year) in discharging liabilities wholly or partly attributable to life assurance business.

(2) Where the value of the assets mentioned in subsection (1) is shown, by an investigation to which Article 5 of the European Communities (Life Assurance Accounts, Statements and Valuations) Regulations, 1986 (S.I. No. 437 of 1986) applies or which is made in pursuance of a requirement imposed under section 16 or 17 to exceed the amount of the liability attributable to the undertaking's life assurance business the restriction imposed by that subsection shall not apply to so much of those assets as represents the excess.

(3) Subsection (2) shall not authorise a transfer or other application of assets by reference to an actuarial investigation at any time after the date when the abstract of the actuary's report of the investigation has been deposited with the Minister in accordance with Article 9 (1) of the said Regulations of 1986.

(4) Nothing in subsection (1) shall preclude an undertaking from exchanging, at fair market value, assets representing the fund maintained by the undertaking in respect of its life assurance business for other assets of the undertaking.

(5) A mortgage or charge shall be void to the extent to which it contravenes subsection (1).

(6) Money from the fund maintained by an undertaking in respect of its life assurance business shall not be used for the purposes of any business of the undertaking which is not life assurance business notwithstanding any arrangement for its subsequent repayment out of the receipts of that other business.

(7) No undertaking to which this section applies shall declare a dividend at any time when the value of the assets representing the fund or the solvency margin, as determined in accordance with any applicable valuation regulations, is—

(a) in the case of the fund, less than the amount of the liabilities attributable to that business as so determined, or

(b) in the case of the solvency margin, less than the amount required by the Regulations of 1984.

(8) In this section a reference to “the fund” is to the total fund of assets maintained by an undertaking in respect of its life assurance business, not being shareholders' assets.

General powers to require information.

16.—(1) Whenever the Minister considers it necessary in order to satisfy himself whether an undertaking is complying with its obligations under the Insurance Acts he may require the undertaking to prepare and submit to him—

(a) returns and accounts in the form prescribed by the Insurance Acts made up to such date as the Minister may direct;

(b) such other information (including information derived from an actuarial investigation) as he may specify in relation to the undertaking itself;

(c) such other information as the Minister may specify in relation to any connected body of the undertaking which the undertaking may reasonably be expected to provide.

(2) The Minister may require that such returns, accounts or information be certified or attested as to their correctness by any person nominated by him.

(3) For the purpose of this section a connected body shall include—

(a) any connected body within the meaning of section 4 (4), paragraphs (a), (b) and (d) of the Insurance (No. 2) Act, 1983 ,

(b) any body in which the undertaking, either alone or with any associate or associates, is entitled to exercise or control the exercise of one-fifth or more of the voting rights at any general meeting of that body,

(c) any body which, either alone or with any associate or associates, is entitled to exercise or control the exercise of one-fifth or more of the voting rights at any general meeting of the undertaking,

(d) any body which is a fellow subsidiary of the undertaking within the meaning of the Companies Acts, and

(e) any body which is connected to a connected body within the meaning of this section.

(4) For the purposes of subsection (3) “body” means a body corporate or an unincorporated body of persons.

(5) A requisition under subsection (1) may specify a date by which it must be met and if it is not met by the specified date the Minister may suspend or revoke the authorisation of the undertaking in any class or part of a class of business in accordance with the procedures provided for in section 58 .

(6) The Minister may by order prescribe a lower figure than that mentioned in subsection (3), paragraph (b) or (c).

Investigations.

17.—(1) Whenever the Minister considers it necessary in order to satisfy himself whether an undertaking is complying, or has the ability to continue to comply, with its obligations under the Insurance Acts, the Minister may direct an investigation of the business of the undertaking or of any aspect of such business.

(2) Where the Minister directs such investigation he may require the undertaking to furnish to him, by a specified date any return, document or account, whether in relation to the undertaking itself or any connected body which the Minister may specify, necessary for the conduct of the investigation, and he may also require the undertaking to furnish to him returns and accounts duly certified, or any document duly attested, necessary to satisfy him as to the financial state of the undertaking.

(3) For the purposes of this section “connected body” has the meaning given to it by section 16 .

(4) If the undertaking fails to comply with subsection (2), the Minister may suspend or revoke its authorisation in any class or part of a class of business in accordance with the procedures provided for in section 58 .

Powers to intervene in cases of doubtful solvency.

18.—(1) If the Minister has reason to believe—

(a) that an undertaking is or may be unable to meet its liabilities, or

(b) that an undertaking whose head office is in the State is or may be unable to provide the required solvency margin,

the Minister may direct the undertaking to take, by a specified date, such one or more of the following measures as he deems appropriate, either indefinitely or for a specified period:

(i) to refrain from taking on new business, or new business of a specified type or class,

(ii) to limit its premium income to a specified amount,

(iii) to refrain from making investments of a specified class or description,

(iv) to realise, within a specified period, investments of a specified class or description,

(v) to maintain in the State assets of a value equal to the whole or a specified proportion of the amount of its liabilities in respect of business carried on in the State,

(vi) to take such further measures as may be specified in the direction.

(2) The powers in subsection (1), paragraphs (i) to (vi), may also be exercisable by the Minister on any of the following grounds:

(a) if the undertaking has failed to comply with a provision of the Insurance Acts,

(b) if the Minister is not satisfied that adequate arrangements are in force or will be made for the reinsurance of risks against which persons are insured by the undertaking in the course of carrying on business, being risks of a class in the case of which he considers that such arrangements are required,

(c) if there exists a ground on which the Minister would be prohibited from issuing an authorisation to the undertaking if it were applied for,

(d) if it appears to the Minister that there has been a substantial departure from any proposal or forecast submitted to him and on the basis of which an authorisation was issued to the undertaking.

(3) In the case of an undertaking whose head office is in another Member State of the Community the Minister shall, before issuing a direction under this section, notify the supervisory authority of the Member State in which the head office is situated.

(4) If the undertaking does not comply with a direction under this section the Minister may suspend or revoke its authorisation in any class or part of a class of business in accordance with the procedures provided for in section 58 .

(5) The Minister may apply to the Court for an order confirming a direction under this section or for an order confirming and extending the period of operation of such a direction for such time as the Court may, having regard to all the circumstances, consider appropriate, and the Court may grant such an order.

(6) The Court may, in addition to or in lieu of making an order under subsection (5), make such order in relation to the matter as may appear to it to be necessary.

(7) The whole or part of proceedings under this section or of an appeal in relation thereto may be heard in chambers.

(8) An undertaking to which a direction is given under this section may apply to the Court for an order setting aside the direction and the Court may grant such an order.

(9) The Minister may from time to time vary or revoke a direction given under this section.

Prior notice and display of policy terms and premium rates.

19.—(1) The Minister may require an undertaking authorised in the State or an insurance undertaking which, while not authorised in the State, issues cover from abroad for a risk arising in the State and is legally entitled to do so, to furnish particulars to him at any time of the general and specific policy conditions and premium rates attaching to specified types of contracts of insurance and he may require such particulars to be furnished before any such insurance contracts are issued.

(2) The Minister may require similar information from persons seeking an authorisation to establish within the State.

(3) The Minister may require insurers carrying on insurance of any specified class or description to display or provide information on their policy conditions and rates in such manner as he may prescribe.

Qualifications of directors, managers and authorised agent.

20.—(1) The Minister may require an insurer to submit to him such information as he may require concerning the qualifications and experience of its directors and of the holders of such managerial posts as he may specify, or of the insurer's authorised agent in the State.

(2) Where it appears to the Minister that a person holding a position as director, manager or authorised agent is not a person suitably qualified or experienced to hold that position (“a qualified person”) he may direct that, as long as that person holds the position, the insurer shall take such one or more of the measures specified in section 18 (1) as the Minister deems appropriate and the insurer shall comply with that direction and that section shall have effect accordingly.

(3) Every proposal to appoint a director, chief executive or authorised agent of the insurer shall be notified to the Minister and shall not be made if the Minister objects to the proposal on the ground that the person proposed to be appointed is not a qualified person.

(4) (a) An applicant for an authorisation shall supply the Minister with such information as he may require concerning the qualifications and experience of any person proposed to be a director of the undertaking and of each person proposed to be the chief executive or to hold any other management position of responsibility in the undertaking, or of the person who is proposed to be the authorised agent of the undertaking.

(b) The Minister shall not grant an authorisation if it appears to him that such person is not a qualified person.

(5) In the case of an undertaking whose head office is not situated in the State this section shall apply only to persons carrying on functions of the undertaking in the State.

(6) No claim shall lie against the Minister for any loss of office arising directly or indirectly from any of the provisions of this section.

(7) An undertaking may appeal to the Court against a direction or objection of the Minister under this section. The appeal may be heard in chambers.

Revocation of authorisation where no business is being done.

21.— (1) Subject to the provisions of this section, the Minister may—

(a) revoke an authorisation in any class or part of a class of life or non-life insurance if he is satisfied that no business has been carried on under the authorisation for the last two consecutive years, or if the holder of an authorisation has reduced the scale of its business in a class or part of a class of life or non-life insurance so as to amount in effect to a cessation of the carrying on of business in that class or part of a class;

(b) suspend an authorisation in any class or part of a class of life or non-life insurance if he is satisfied that business has ceased temporarily or if the undertaking has so reduced the scale of its business in that class or part of a class of business as to amount in effect to a temporary cessation of the carrying on of such business, and he may lay down conditions for the removal of the suspension of the authorisation.

(2) For the purpose of this section the carrying on of insurance business shall be taken to mean the issue in the State of policies of insurance.

(3) Subsection (1) shall not apply to cessation or reduction of business or revocation or suspension of authorisations required by direction of the Minister under section 18 .

(4) The revocation or suspension of an authorisation under this section shall be carried out in accordance with the procedures provided for in section 58 .

Reinsurance.

22.—(1) It shall not be lawful for any person to carry on from or at a place of business or an establishment in the State the business of reinsuring business of a class to which the Insurance Acts apply unless—

(a) in the case of an undertaking which holds an authorisation to carry on business in one or more classes, the authorisation extends to those classes of business in which reinsurance is being accepted, or

(b) in the case of a person not holding an authorisation, that person has notified the Minister in such form as the Minister may prescribe that it carries on the business of reinsurance, and files with the registrar of companies its accounts in such form as the Minister may specify.

(2) Nothing in this section shall prevent an undertaking from accepting reinsurance in a class or classes to which its authorisation does not extend, where the business of such class or classes is ancillary to the main reinsurance business being accepted, provided always that—

(a) in the case of an undertaking which holds an authorisation under the Regulations of 1976, the class or classes of business in which reinsurance is being accepted is confined to insurance of a class or classes specified in Schedule 1 to the said Regulations, or

(b) in the case of an undertaking which holds an authorisation under the Regulations of 1984, the class or classes of business in which reinsurance is being accepted is confined to assurance of a class or classes specified in Schedule 1 to the said Regulations.

(3) Reinsurance acceptances by an undertaking shall be subject to the provisions of the Insurance Acts.

Minimum share capital requirements.

23.—(1) The Minister shall not grant an authorisation unless—

(a) in the case of a company incorporated in the State under the Companies Acts, the paid up share capital of the company is not less than £500,000, and

(b) in the case of a society registered under the Industrial and Provident Societies Acts, 1893 to 1978, the paid up share capital is not less than £500,000 and such share capital is not withdrawable by, or repayable to, members of the society.

(2) The Minister may make regulations concerning the form in which share capital may be issued by the bodies referred to in subsection (1) and may by order amend the requirements as to the required value of paid up share capital referred to in that subsection.

Power to attach conditions to authorisations.

24.—(1) Where the Minister considers it expedient in the public interest or in the interest of policyholders, he may, at the time of the issue of an authorisation or at any other time, require the holder of an authorisation to give undertakings by a specific date as to the manner in which its business shall be conducted, and such holder shall give and shall comply with the undertakings so required.

(2) The holder of an authorisation shall furnish to the Minister annually or at such more frequent intervals as the Minister may request such returns and documents or other information in such form and manner as he may require as are necessary to enable the Minister to verify that the undertakings mentioned in subsection (1) are being complied with.

(3) Where the holder of an authorisation fails to comply with subsections (1) or (2) the Minister may suspend or revoke the authorisation in any class or part of a class of business in accordance with the procedures provided for in section 58 .

Industrial assurance business.

25.—(1) Notwithstanding anything to the contrary in the Assurance Companies Act, 1909 , or the Insurance Act, 1936 , the industrial assurance and life assurance funds maintained by an insurer before the commencement of this section may be amalgamated and the combined fund shall be liable for any contracts of the insurer for which any of the funds would previously have been liable.

(2) In the case of contracts of industrial assurance business, the obligation to collect premiums, whether arising from contracts, expressly or impliedly, or by statutory implication, and whether such contracts existed at or were entered into after the commencement of this section, shall be satisfied if collection is effected not less frequently than once every two months.

(3) (a) Section 50 (5) of the Insurance Act, 1936 , is hereby amended by the substitution of “£1,200” for “twenty-five pounds”.

(b) Section 51 (2) of the Insurance Act, 1936 (maximum sums which can be assured on the lives of children under 10 years) is hereby amended by the substitution of “£1,000” for “twenty pounds” (inserted by the Credit Union Act, 1966 ) and of “£1,000” for “thirty pounds” (inserted by the Credit Union Act, 1966 ).

(c) The Minister may by order alter the provisions of this subsection regarding sums assured under policies of industrial assurance.

Insurance of unnamed persons.

26.—(1) Section 2 of the Life Assurance Act, 1774 , as applied by the Life Insurance (Ireland) Act, 1866 , shall not invalidate a policy of insurance for the benefit of unnamed persons from time to time falling within a specified class or description if the class or description is stated in the policy with sufficient particularity to make it possible to establish the identity of all persons who, at any given time, are entitled to benefit under the policy.

(2) This section shall apply to all policies effected whether before or after the commencement of this section.

Application of Act of 1978.

27.— The Insurance (Amendment) Act, 1978 , is hereby amended by the substitution, for section 2, of the following section:

“2.— (1) This Act applies to any bond or any contract of suretyship or guarantee which is given, or is entered into, as surety or guarantor by—

(a) a licensee in the course of his banking business, or

(b) Industrial Credit Corporation Public Limited Company in the course of its business, or

(c) Fóir Teoranta in the course of its business,

or which is in the course of his banking business given or entered into, as surety or guarantor, by a person resident outside the State to satisfy, and only for the purposes of, a requirement which is both—

(i) a requirement of a licensee or Industrial Credit Corporation Public Limited Company or Fóir Teoranta, and

(ii) made solely for the purposes of securing financial facilities to be made available by that licensee, or Industrial Credit Corporation Public Limited Company or Fóir Teoranta.

(2) For the purposes of this section—

‘banking business’ has the meaning assigned to it by section 2 of the Central Bank Act, 1971 ;

‘licensee’ means the holder of a licence granted under the Central Bank Act, 1971 .”.

Amendment of Friendly Societies Act, 1896.

28.—The Friendly Societies Act, 1896 , is hereby amended by the insertion of the following section after section 8:

“Restrictions on registration.

8A. Notwithstanding section 8 of this Act:

(1) No society shall be registered under this Act for any of the purposes referred to in section 8 (1) (a) or section 8 (1) (e) of this Act unless the registrar of friendly societies is satisfied that the society is a society to which Article 2.2 (b), Article 2.2 (c) or Article 3 of Council Directive 73/239/EEC¹ refers.

(2) No society shall be registered under this Act for any of the purposes referred to in section 8 (1) (b) or section 8 (1) (d) of this Act unless the registrar of friendly societies is satisfied that the society is a society to which Article 2.2, Article 2.3 or Article 3 of Council Directive 79/267/EEC ² refers, or is a society in respect of which the Minister for Industry and Commerce has indicated that he will issue an authorisation under the European Communities (Life Assurance) Regulations, 1984.

(3) No society registered under this Act shall be authorised to carry on any insurance business falling under the description of insurance of Class III, IV or VII of Schedule 1 to the European Communities (Life Assurance) Regulations, 1984, unless it has obtained an authorisation under those Regulations for that purpose.”.

Application of exemptions in the 1976 and 1984 Regulations on life and non-life insurance.

29.—It is hereby declared for the avoidance of doubt that—

(a) the provisions of Regulation 3 (2) (b) of the Regulations of 1976 and Regulation 3 (2) (b) of the Regulations of 1984 apply only in relation to the operations mentioned in the said subparagraphs where such operations are carried out by a body registered under the Acts relating to friendly societies or trade unions, and

(b) the reference in Regulation 3 (2) (c) of the Regulations of 1976 to mutual associations and the reference in Regulation 3 (2) (c) of the Regulations of 1984 to organisations and mutual associations are references to mutual associations and organisations registered under the Acts relating to friendly societies or trade unions.

Winding up of insurers.

30.—Where a petition for the winding up of an undertaking is presented by a person other than the Minister, a copy of the petition shall be served on the Minister and he shall be entitled to be heard on the petition.

Insurance Compensation Fund.

31.—(1) Subsection (1A) (inserted by the Act of 1983) of section 3 of the Insurance Act, 1964 , shall not apply to the liquidator of an insurer (within the meaning of the Act of 1983) the winding up of which is commenced by the Court after the commencement of this section.

(2) Section 3 of the Insurance Act, 1964 , is hereby amended by the insertion of the following subsections after subsection (1A):

“(1B) (a) Subject to the provisions of this section, there may, with the approval of the High Court, be paid out of the Fund to the liquidator of an insolvent insurer (including an insurer whose authorisation has been revoked by the Minister) the winding up of which has been commenced by the High Court after the commencement of section 31 of the Insurance Act, 1989, such amount or amounts (subject to the limit provided for in paragraph (b)) as the Court may from time to time authorise in respect of any sum (other than a sum payable in respect of the refund of a premium) due to a person under a policy issued by the insurer in the State in respect of a risk situated in the State, together with the costs and expenses (if any) necessarily and reasonably incurred by the person in endeavouring to secure payment of the sum.

(b) The total amount which may be paid out of the Fund under paragraph (a) in respect of any sum due to a person under a policy shall not exceed (whether as one payment or as the total of a series of payments) sixty-five per cent. (or six hundred and fifty thousand pounds, whichever is the less) of such sum.

(1C) Where any sum referred to in subsection (1B) relates to the liability of the insured to a third party, the limitation prescribed by that subsection on payment out of the Fund applies to the sum required to meet the liability of the insured to that third party.

(1D) Subsection (1B) does not apply to any sum due to a body corporate or unincorporated body of persons unless the sum is due in respect of the liability of such body to an individual or in respect of the liability of an individual to such body.

(1E) Where any amount is paid out of the Fund to a liquidator under subsection (1B) the liquidator shall pay such amount to the person in respect of whom it is due.”.

(3) Subsection (2B) (inserted by the Act of 1983) of the said section 3 shall not apply to the administrator of an insurer (within the meaning aforesaid) the administration of which is commenced after the commencement of this section.

(4) Section 3 of the Insurance Act, 1964 , is hereby amended—

(a) by the deletion from subsection (2C) (b) (inserted by section 9 of the Act of 1983) of “the Minister may at any time waive all or any part of the said debt on behalf of the Fund” and the substitution of “the Minister may with the consent of the Minister for Finance at any time waive all or any part of the said debt on behalf of the Fund”; and

(b) by the substitution of the following subsection for subsection (2A) (inserted by section 9 of the Act of 1983):

“(2A) Where an amount is paid out of the Fund to the liquidator of an insurer under subsection (1A) or (1B) of this section in respect of a sum due under a policy issued by the insurer and the costs and expenses (if any) incurred in relation to the sum, or, where subsection (1A) applies, in respect of a refund of a premium, the Accountant shall, as respects the amount paid out of the Fund, be a creditor of the insurer, and that amount shall be admitted in the proceedings for the winding up as a proved debt of the insurer having priority to any sum remaining due under the policy or in respect of the refund of the premium, as the case may be.”.

(5) Section 6 (2) (d) of the Insurance Act, 1964 (inserted by section 10 of the Act of 1983) is hereby amended by the deletion of the definition of “aggregate income” and the substitution of the following definition:

“‘aggregate income’ in relation to an insurer in respect of any period, means the gross amount of premiums paid or payable to the insurer in respect of policies issued by him in the State in that period in respect of risks situated in the State;”.

(6) In this section “the Act of 1983” means the Insurance (No. 2) Act, 1983 .

(7) A risk shall be deemed to be situated in the State for the purposes of sections 3 and 6 of the Insurance Act, 1964 , as amended by this section, where the policy or other instrument of insurance relates to—

(a) property consisting of buildings or buildings and their contents, insofar as the contents are covered by the same policy or other instrument of insurance, if the property is situated in the State;

(b) vehicles, including land vehicles, railway rolling stock, aircraft, sea, lake, river and canal vessels, if the vehicle is registered in the State;

(c) travel or holiday risks, whatever the class concerned, if the policy or other instrument of insurance is issued in the State;

or, in any other case, if the policyholder is ordinarily resident in the State or if the policyholder is a legal person and the establishment to which the policy or other instrument of insurance relates is situated in the State.

Preferential payments of debts out of technical reserves of undertaking.

32.—(1) In every winding up, the assets, wherever situated, of an undertaking representing technical reserves required to be established and maintained pursuant to the Regulations of 1976 or the Regulations of 1984, as the case may be, shall, without prejudice to any right of priority under the Companies Acts, or any other enactment, be utilised to discharge debts arising under contracts of insurance made pursuant to its authorisation in priority to other debts.

(2) For the purpose of this section any amount recovered from a reinsurer under a contract of reinsurance relating to a contract of insurance mentioned in subsection (1) shall form part of the said technical reserves.

Administrator's power of sale.

33.—(1) It is hereby declared for the avoidance of doubt that an administrator appointed under section 2 of the Insurance (No. 2) Act, 1983 , shall have, and shall be deemed always to have had, power to dispose of all or any part of the business, undertaking or assets of the insurer and to carry on any remaining business including the settlement of liabilities, with a view to the orderly completion of the administration.

(2) Where any such administrator appointed prior to the commencement of this Act has disposed of all or any part of the business, undertaking or assets of an insurer, there may, with the approval of the High Court, be paid out of the Fund to the administrator such amounts as are, in the opinion of the High Court, required to enable the administrator to continue the administration with a view to its completion in an orderly manner.

Appointment, duty and qualifications of actuary.

34.—(1) An insurer which has its head office in the State and which at the commencement of this Part has an authorisation to undertake life assurance shall, if it has not already done so, within two months of such commencement, appoint a suitably qualified person as actuary to the insurer, and particulars of the identity, experience and qualifications of the person so appointed shall be notified to the Minister on his appointment.

(2) An insurer which has its head office in the State shall within one month of being granted an authorisation to undertake life assurance appoint a suitably qualified person as actuary to the undertaking, and information as to the identity, experience and qualifications of the person so appointed shall be notified to the Minister on such appointment.

(3) It shall be the duty of the person appointed as actuary to an undertaking to carry out any function relating to the business of that undertaking which is required by the Insurance Acts to be undertaken by an actuary.

(4) The Minister may by order prescribe the qualifications and experience of the person to be appointed as actuary to an undertaking.

Duties of auditor.

35.— (1) If an auditor of an insurer—

(a) has reason to believe that there exist circumstances which are likely to affect materially the insurer's ability to fulfill its obligations to policyholders or meet any of its material financial requirements under the Insurance Acts, or

(b) has reason to believe that there are material defects in the financial systems and controls or accounting records of the insurer which are likely to have that effect, or

(c) proposes to qualify any certificate which he is to provide in relation to financial statements or returns of the insurer under the Companies Acts or the Insurance Acts, or

(d) decides to resign or not seek re-election as auditor,

he shall report the matter to the Minister in writing without delay.

(2) The auditor shall send to the insurer a copy of any report made by him to the Minister under subsection (1).

(3) Whenever the Minister is of the opinion that the exercise of his functions under the Insurance Acts or the protection of the interests of policyholders so requires, he may require an auditor of an insurer to supply him with such information as he may specify in relation to the audit of the business of the insurer and the auditor shall comply with the requirement. The Minister may require that in supplying such information the auditor shall act independently of the insurer.

(4) In the case of an insurer having its head office outside the State, the duties imposed on an auditor under this section shall apply in respect of business written by the insurer at its establishment in the State.

(5) No duty to which an auditor of an insurer may be subject shall be regarded as contravened, and no liability to the insurer, or to its shareholders, creditors or other interested parties, shall attach to the auditor, by reason of his compliance with any obligation imposed on him by or under this section.

Powers of Court with respect to amalgamation or transfer of insurance business.

36.—(1) Whenever the Court sanctions under section 13 of the Assurance Companies Act, 1909 , the amalgamation of two or more insurance companies or the transfer of insurance business of any class from one insurance company to another or an amalgamation or transfer as aforesaid is to be effected which does not require the sanction of the Court under that section, the Court shall, having had regard to all the liabilities of the companies, by the order granting the sanction, or where sanction under the said section is not required, upon application being made to it, provide for such of the following matters as the circumstances require:

(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;

(b) the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company which under the amalgamation or transfer are to be allotted or appropriated by that company to or for any person;

(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;

(d) the dissolution, without winding up, of any transferor company;

(e) such incidental, consequential and supplementary matters as are necessary to secure that the amalgamation or transfer shall be fully and effectively carried out.

(2) Where any order made under subsection (1) provides for the transfer of property or liabilities, that property shall, by virtue of the order, be transferred to and vest in, and those liabilities shall, by virtue of the order, be transferred to and become the liabilities of, the transferee company, and in the case of any property, if the order so directs, freed from any mortgage or charge which is by virtue of the amalgamation or transfer to cease to have effect.

(3) Where the Court sanctions or approves an amalgamation or transfer to which subsection (1) relates, the transferee company shall, within ten days from the date on which the order is made or such longer period as the Minister may allow, deposit two office copies of the order with the Minister.

(4) In this section—

“liabilities” includes duties;

“property” includes property, rights and powers of every description;

“transferor company” means the company the whole or part of the undertaking or property of which is to be transferred under the amalgamation or transfer and “transferee company” means the company to which such transfer is to take place.

PART III

Payment of Commissions by Insurers

Power of Minister to require reduction in commissions.

37.—(1) (a) Where, in the opinion of the Minister, the commission payments of the holder of an authorisation are excessive, he may, by notice in writing sent to the holder, require the holder to reduce the commission payments of the holder in relation to insurance business, or specified classes of insurance business, after such date (not being less than two months after the date of the sending of the notice) as may be specified in the notice to not more than such level or levels as the Minister may specify in the notice.

(b) Levels of commission payments may be specified by the Minister in a notice under this subsection in such manner and by reference to such matters as the Minister thinks fit.

(c) Where the Minister sends a notice under this subsection to the holder of an authorisation, he shall at the same time send a copy of the notice to all other holders of authorisations and a holder of an authorisation to whom such a copy is sent shall not pay, or cause to be paid on his behalf, after the date specified in the notice, commission payments at a level higher than specified in that behalf in the notice.

(2) A person—

(a) to whom there is sent a notice under subsection (1) and who pays, or causes to be paid on his behalf, commission payments at a level higher than specified in that behalf in the notice, or

(b) who contravenes subsection (1) (c),

shall be guilty of an offence.

(3) (a) The Minister may annul a notice under subsection (1) sent to the holder of an authorisation by sending a notice to the holder stating that the notice under subsection (1) is annulled from a specified date, and where a notice under this subsection is sent to the holder of an authorisation, the notice under subsection (1) to which it relates shall cease to have effect on the day specified for that purpose in the notice under this subsection.

(b) Where the Minister sends a notice under this subsection to the holder of an authorisation, he shall at the same time send a copy of the notice to all other holders of authorisations.

(c) References in subsection (2) and in the subsequent sections of this Act to a notice under subsection (1) or to a notice under this section are references to a notice under the said subsection (1) that is for the time being in force.

(4) Where the Minister sends a notice under this section to any person, he shall, as soon as may be, cause notice of and particulars of the notice to be published in at least one daily newspaper circulating throughout the State.

Prohibition of certain commission payments.

38.—Whenever the Minister considers it necessary in the public interest he may provide by order that the holder of an authorisation shall not—

(a) pay commission payments in the form of any benefit in kind or in the form of any loan of money made by the holder to an intermediary, or made on the holder's behalf by another person to an intermediary;

(b) subject to such exceptions and conditions as may be specified in the order, pay to, or credit to the account of, an insurance intermediary a commission payment in respect of a policy of insurance until the premium to which the commission payment relates is received by the holder or the intermediary on behalf of the holder, as the case may be.

Revocation of authorisation.

39.—(1) Where a person who is the holder of an authorisation in respect of non-life insurance is convicted of an offence under section 37 or 38 and, either, the person does not appeal against the conviction or the conviction is affirmed on appeal, the conviction shall be a ground for the revocation by the Minister of the authorisation and, accordingly, the Minister may revoke the said authorisation in accordance with the provisions of Article 23 of the Regulations of 1976, as if—

(a) the following paragraph were inserted in sub-article (1) of the said Article 23 after paragraph (a):

“(aa) was convicted of an offence under section 37 or 38 of the Insurance Act, 1989, and, either, the holder did not appeal against the conviction or the conviction was affirmed on appeal”,

and

(b) the following were inserted after “revoked” in sub-article (3) (a) of the said Article 23:

“if the undertaking was convicted of an offence under section 37 or 38 of the Insurance Act, 1989, and, either, the holder did not appeal against the conviction or the conviction was affirmed on appeal, or”.

(2) Where a person who is the holder of an authorisation in respect of life assurance is convicted of an offence under section 37 or 38 and, either, the person does not appeal against the conviction or the conviction is affirmed on appeal, the conviction shall be a ground for the revocation by the Minister of the authorisation and, accordingly, the Minister may revoke the said authorisation in accordance with the provisions of Article 25 of the Regulations of 1984, as if—

(a) the following paragraph were inserted in sub-article (1) of the said Article 25 after paragraph (a):

“(aa) was convicted of an offence under section 37 or 38 of the Insurance Act, 1989, and, either, the holder did not appeal against the conviction or the conviction was affirmed on appeal”,

and

(b) the following were inserted after “revoked” in sub-article (3) (a) of the said Article 25:

“if the undertaking was convicted of an offence under section 37 or 38 of the Insurance Act, 1989, and, either, the holder did not appeal against the conviction or the conviction was affirmed on appeal, or”.

(3) The revocation or suspension of an authorisation under this section shall be subject to the procedures provided for in section 58 .

Restriction on advertising.

40.—Where a person is convicted of an offence under section 37 or 38 and, either, the person does not appeal against the conviction or the conviction is affirmed on appeal, he shall not publish, or cause to be published, an advertisement in relation to the insurance business of the person convicted unless the commission payments of the person in connection with such business are not higher than the levels specified in relation to payments of those kinds in the notice under section 37 to which the conviction related and the payments made to intermediaries are in accordance with section 38 .

Offences committed by intermediaries.

41.—(1) Subject to subsection (2), where—

(a) an insurance intermediary accepts a commission payment,

(i) from a person who has been sent a notice under section 37 or a copy of such a notice, or from a person acting on behalf of such a person, and

(ii) the payment is higher than the level specified in relation to such payments under the notice, and

(iii) the payment is made after the date specified in the notice, or

(b) an insurance intermediary accepts a commission payment contravening section 38 ,

the intermediary shall be guilty of an offence.

(2) In a prosecution for an offence under this section, it shall be a defence for the defendant to show that he did not know, and could not reasonably be expected to have known, that the commission payment concerned was—

(a) higher than the level specified in relation to a payment of that kind in the notice concerned under section 37 and that, upon its becoming known to him, he returned the excess of the commission payment concerned to the person who made it, or

(b) in contravention of section 38 and that, upon its becoming known to him, he returned the commission payment concerned to the person who made it.

Certain policies of life assurance voidable.

42.—Where—

(a) a holder of an authorisation in respect of life assurance is convicted of an offence under section 37 in relation to commission payments specified in a notice under that section, or is convicted of an offence under section 38 , and

(b) either, he does not appeal against the conviction or the conviction is affirmed on appeal, and

(c) the commission payment to which the offence related was in respect of the effecting of a contract of assurance upon human life between the person convicted and another person,

any person who is party to a contract of assurance upon human life which was effected with the holder, and in respect of which a commission payment was paid by the holder, or by a person acting on behalf of the holder, to an insurance intermediary higher than the level specified in relation to a payment of that kind in the notice aforesaid, or in respect of which a commission payment was made in contravention of section 38 may, within one month from the date of the conviction, by notice in writing sent by post to the holder, avoid the contract, and, thereupon, the contract shall be void and any moneys paid by the person on foot of the contract together with interest thereon at such rate as may be fixed by the Minister by regulations under this section, may be recovered by him from the holder as a simple contract debt in any court of competent jurisdiction.

Furnishing of information to the Minister.

43.—The Minister may by notice in writing sent to the holder of an authorisation require the holder to furnish to him, within such time (not being less than 21 days from the date of the sending of the notice) as may be specified in the notice, such information as may be specified in the notice in relation to the commission payments of the holder.

PART IV

Regulation of Insurance Intermediaries

Brokers' qualifications.

44.—(1) A person shall not act as, or hold himself out to be an insurance broker unless—

(a) he is a member of a representative body of insurance brokers which requires compliance with the provisions of this Act as a condition of membership, and that body is recognised as such by the Minister, and he otherwise complies with the provisions of this Act, or, not being a member of a recognised representative body, he complies with the provisions of this Act, and

(b) he is in a position—

(i) in the case of non-life insurance, to arrange insurance contracts on behalf of his clients with at least five undertakings, or

(ii) in the case of life insurance, to arrange insurance contracts on behalf of his clients with at least five undertakings.

(2) A person shall not act as or hold himself out to be an insurance broker unless he holds an appointment in writing from each undertaking for which he is an intermediary.

Intermediaries' indemnity insurance.

45.—The Minister may, by regulations, provide that a person shall not act as or hold himself out to be an insurance broker or an insurance agent unless he effects a policy of professional indemnity insurance in a specified form, indemnifying him to such sum, in such manner, in respect of such matters and valid for such minimum period as the Minister may prescribe, from time to time, under this section.

Insurance intermediaries appointment and commission payments.

46.—(1) An undertaking shall not appoint a person as an insurance intermediary unless, to the best of the undertaking's knowledge and belief, having caused reasonable enquiry to be made he is either—

(a) a member of a representative body of insurance brokers recognised by the Minister for the purposes of section 44 (1) (a), or

(b) a person who complies with the requirements of this Act but is not a member of a recognised representative body.

(2) An undertaking shall not pay any commission payment other than to an insurance intermediary who, to the best of the undertaking's knowledge and belief, having caused reasonable enquiry to be made, is either—

(a) a member of a representative body of insurance brokers recognised by the Minister for the purposes of section 44 (1) (a), or

(b) a person who complies with the provisions of this Act but is not a member of a recognised representative body.

(3) No insurance intermediary or employee of an undertaking shall pay any commission payment other than to an insurance intermediary who complies with this Act, save where a commission payment is made by an insurance intermediary to a person in connection with a policy of insurance placed with an undertaking by the said intermediary.

(4) “Commission payment” in subsection (3) has the meaning given to it in section 2 (3) as if the words “holder of an authorisation” in that definition referred to an insurance intermediary.

Insurance bond required by intermediary.

47.—(1) If, at any time in the first accounting year, the aggregate of moneys lodged by an insurance intermediary to the separate bank accounts required under section 48 exceeds £25,000, the intermediary shall effect a bond in a specified form, as respects his insurance business, to the value of £25,000 in respect of the remainder of the first accounting year.

(2) Subject to subsection (4), an insurance intermediary shall hold a bond in a specified form—

(a) as respects his non-life insurance business, to the value of £25,000, and

(b) as respects his life assurance business, to the value of £25,000 or 25 per cent. of life assurance turnover, whichever is the greater, by reference to the previous accounting year.

(3) The requirement in subsection (2) for an insurance intermediary to hold a bond shall be regarded as having been discharged where the insurance intermediary holds a bond to the value of £25,000 or 25 per cent. of life assurance turnover, whichever is the greater, by reference to the previous accounting year.

(4) Subsection (2) shall not apply to an insurance intermediary if his turnover does not exceed £25,000 by reference to the previous accounting year and does not exceed £25,000 in any subsequent accounting year.

(5) The bond referred to in this section shall provide that in the event of the insurance intermediary's inability or failure to meet his financial obligations in relation to any sums of money received by him from, or on behalf of, his clients, a sum of money will become available to a person nominated or approved of by the Minister, to be applied for the benefit of any client of the intermediary who has incurred loss or liability because of the inability or failure of the insurance intermediary to meet such financial obligations.

(6) The person nominated or approved of by the Minister shall, with the consent of the Minister and up to such sum as may be specified by the Minister, be indemnified out of the proceeds of the bond in respect of such reasonable expenses as are incurred in carrying out the functions provided for in subsection (5).

(7) The person nominated or approved of by the Minister shall keep all proper and usual accounts, including an income and expenditure account and a balance sheet, of all moneys received by him on foot of a bond and of all disbursements made by him from any such moneys and of any amounts in respect of the expenses referred to in subsection (6).

(8) The Minister may, by regulations, provide that—

(a) arrangements in relation to the bond shall be entered into only with persons of a class or classes specified in the regulations,

(b) the bond shall be in such form and valid for such minimum period as may be specified in the regulations,

(c) a copy of the bond shall be displayed, for the information of the public, in a prominent position in all premises occupied by an insurance intermediary and in which he carries on business as insurance intermediary, and the bond shall be mentioned in his sales literature and business note paper.

(9) Any amount or percentage rate in subsections (2), (3) and (4) may be altered as the Minister may from time to time prescribe and different amounts and percentages may be prescribed for different classes of intermediary by reference to turnover or to such other matters as the Minister may consider appropriate.

(10) For the purposes of this section—

“accounting year” means the year commencing on the date of coming into force of subsection (1) of this section and subsequent anniversary accounting years;

“turnover” means the aggregate of all moneys required to be paid by an intermediary into the separate bank accounts required under section 48 (1) (a) and 48 (1) (b);

“life assurance turnover” means the aggregate of all moneys required to be paid by an intermediary into the separate bank account required under section 48 (1) (b).

Keeping of separate bank accounts.

48.—(1) An insurance intermediary shall keep a separate bank account for each of the following classes of business—

(a) an account in connection with premiums payable to insurers under contracts of non-life insurance, or money paid or payable to policyholders by undertakings authorised under the Regulations of 1976;

(b) an account in connection with premiums payable to insurers under contracts of life assurance, or money paid or payable to policyholders by undertakings authorised under the Regulations of 1984, and

(i) all moneys, other than commission payments and service charges, received by him in connection with either such class of business shall be paid into the appropriate account, and

(ii) neither the State nor any person shall have or obtain any recourse or right against money standing to the credit of such account or accounts in respect of a claim or right against an insurance intermediary until all proper claims against these moneys have been satisfied.

(2) The account to be kept—

(a) under subsection (1) (a) shall be designated in all financial records maintained by the intermediary as “ section 48 —Non-life insurance account”,

(b) under subsection (1) (b) shall be designated in all financial records maintained by the intermediary as “ section 48 —Life Assurance account”.

(3) This section shall not apply as respects a tied insurance agent insofar as moneys received by him in connection with premiums payable to undertakings under contracts of insurance or moneys payable to policyholders by undertakings, relate to a tied agency agreement or arrangement entered into by the tied insurance agent.

(4) For the purposes of this section—

“service charge” means an amount payable, or payable in certain circumstances, by a client to an intermediary in respect of his services in relation to contracts of insurance but does not include any premium or part thereof payable to an undertaking;

“tied agency agreement or arrangement” has the meaning assigned to it in section 51 ;

“tied insurance agent” has the meaning assigned to it in section 51 .

Insurance agents' qualifications.

49.—(1) No person shall act as, or hold himself out to be an insurance agent unless—

(a) he holds an appointment in writing from each undertaking for which he is an agent,

(b) he states on his letter headings and business forms that he is an insurance agent and the name or names of every undertaking for which he is an agent, and

(c) he informs any proposer of an insurance contract that he is an insurance agent and of the name or names of the undertakings for which he is an agent.

(2) Subject to subsection (3), an insurance agent shall hold—

(a) in the case of non-life insurance, an appointment in writing from not more than four undertakings authorised under the Regulations of 1976,

(b) in the case of life insurance, an appointment in writing from not more than four undertakings authorised under the Regulations of 1984.

(3) The provisions of subsection (2) shall come into force on such date as the Minister prescribes not being less than two years after the commencement of this section.

(4) A tied insurance agent shall:

(a) state on his letter headings and business forms that he is a tied insurance agent and the name or names of every undertaking for which he is a tied insurance agent,

(b) inform any proposer of an insurance contract that he is a tied insurance agent and the name or names of every undertaking for which he is a tied insurance agent, provided always that the insurance contract in question is of a type which is subject to a tied agency agreement or arrangement entered into by the said tied insurance agent.

(5) A tied insurance agent shall not act in relation to contracts of insurance offered or issued by any other undertaking authorised under the same Regulations as the undertaking with whom the tied insurance agent has entered into a tied agency agreement or arrangement.

(6) For the purposes of this section—

“Regulations” means the Regulations of 1976 or the Regulations of 1984, as the case may be;

“tied insurance agent” and “tied insurance agreement or arrangement” have the meanings assigned to them, respectively, in section 51 .

Register of insurance intermediaries.

50.—Every undertaking shall keep a register of all its appointed insurance intermediaries at its principal office in the State. The said register of appointed insurance intermediaries shall be open to public inspection at reasonable times during normal working hours.

Provisions regarding scope of agency.

51.—(1) An insurance agent shall be deemed to be acting as the agent of the undertaking to whom a proposal for insurance is being made when, for the purpose of the formation of the insurance contract, he completes in his own hand or helps the proposer of an insurance policy to complete a proposal for insurance. In such circumstances only, the insurer shall be responsible for any errors or omissions in the completed proposal.

(2) An undertaking shall be responsible for any act or omission of its tied insurance agent in respect of any matter pertaining to a contract of insurance offered or issued by that undertaking, as if the tied insurance agent was an employee of that undertaking.

(3) In this section—

“tied insurance agent” means any person who enters into an agreement or arrangement with an undertaking whereby that person undertakes to refer all proposals of insurance to the undertaking with whom he has made or entered into the agreement or arrangement, or any person who enters into an agreement or arrangement with an undertaking which restricts in any way that person's freedom to refer proposals of insurance to an undertaking other than the undertaking with whom the agreement or arrangement has been made or entered into;

“tied agency agreement or arrangement” means an agreement or arrangement of the type described in this section.

(4) Nothing in this section shall render an insurance agent or a tied insurance agent responsible for any false statements supplied to him by the proposer of an insurance policy or for any information withheld by the proposer from such agent.

Acceptance by intermediary of insurance proposals.

52.—(1) An insurance intermediary shall not accept money from a client—

(a) in respect of a proposal unless it is accompanied by the completed proposal or the proposal has been accepted by the undertaking, or

(b) in respect of a renewal of a policy of insurance unless it has been invited by the undertaking.

(2) The Minister may prescribe any alterations or additions to the circumstances in which an intermediary may accept money from a client under subsection (1).

(3) (a) Where an insurance intermediary accepts from a client a completed insurance proposal, whether or not accompanied by a sum of money, with a view to effecting with an undertaking a policy of insurance, or

(b) where an insurance intermediary accepts money from a client in respect of a renewal of a policy of insurance which has been invited by the insurer or in respect of a proposal accepted by an undertaking,

he shall serve on the client a document stating that it is issued in pursuance of this section and specifying—

(i) the name and address of the client;

(ii) the amount of the said sum if any and the date of its receipt by the intermediary;

(iii) the proposal, renewal or proposal accepted by an undertaking in respect of which such sum was paid;

(iv) the undertaking with which the policy is to be effected or renewed or by whom the proposal has been accepted.

(4) The document to be issued by intermediaries in a case to which subsection (3) (a) applies shall also specify that such acceptance by the intermediary does not itself constitute the effecting of a policy of insurance.

(5) Subsections (3) and (4) shall not apply where the intermediary, having authority to do so, issues to the client a policy of insurance with the undertaking.

(6) The Minister may prescribe any alterations or additions to the matters to be specified in documents required to be issued by intermediaries under subsections (3) and (4).

(7) A document purporting to be a document to which subsection (3) or subsection (4) applies shall, without further proof, be evidence of the matters specified therein unless the contrary is proved.

Treatment of premiums paid to intermediaries.

53.—(1) Where a premium is paid to an insurance intermediary in respect of a renewal of a policy which has been invited by an undertaking, or in respect of a proposal accepted by an undertaking, the premium shall be treated as having been paid to the undertaking when it is paid to the insurance intermediary.

(2) Nothing in this section shall render an undertaking liable for a premium paid to an intermediary in respect of a proposal accepted by an undertaking or a renewal of a policy which has been invited by the undertaking, where the undertaking has given reasonable notice in writing to the person whose proposal has been accepted or whose policy is being renewed, that the said intermediary has no authority to collect such premiums on behalf of the undertaking.

Restriction on intermediaries convicted of offence.

54.—An insurance intermediary who is convicted of an offence arising out of or connected with the performance of his functions as an insurance intermediary shall not, without the permission of the Court, carry on the business of insurance intermediary in the State or engage or authorise another insurance intermediary to act as such on his behalf.

Disqualification of certain persons from acting as intermediaries.

55.—A person shall not, without the permission of the Court, act as or hold himself out to be an insurance intermediary if—

(a) he is adjudged bankrupt, or

(b) he makes a composition or arrangement with his creditors, or

(c) being an insurance intermediary, he fails to meet his financial or legal obligations in relation to any sum of money received by him from or on behalf of a client, or

(d) he is convicted of an offence involving fraud or dishonesty, whether in connection with insurance or not, or

(e) he is or was a director of any company involved in insurance which has been wound up by the Court or by means of a creditors' voluntary winding up, or

(f) he is the subject of an order under section 184 of the Companies Act, 1963 .

Codes of conduct.

56.—The Minister may by order prescribe codes of conduct to be observed by insurance brokers or insurance agents in the State. Any such order may, in particular, specify the practices to be followed by brokers or agents in their dealings with their clients or undertakings or with other persons.

Scope of Part IV .

57.—(1) This Part shall not apply to—

(a) contracts of reinsurance or to insurance intermediaries engaged solely in relation to the business of effecting contracts of reinsurance;

(b) travel agents and tour operators licensed under the Transport (Tour Operators and Travel Agents) Act, 1982 , insofar as they are engaged in the placing of travel insurance or touring assistance contracts as part of, or in conjunction with, an overseas travel contract.

(2) In this section “travel agent”, “tour operator” and “overseas travel contract” have the meanings assigned to them respectively under section 2 (1) of the Transport (Tour Operators and Travel Agents) Act, 1982 .

PART V

Miscellaneous

Appeal against suspension or revocation of authorisation.

58.—(1) Where the Minister proposes to suspend or revoke an authorisation under section 21 he shall notify the undertaking concerned in writing of such proposed suspension or revocation.

(2) A decision by the Minister to suspend or revoke an authorisation under this Act shall be notified in writing to the undertaking affected together with the reasons for the suspension or revocation of the authorisation.

(3) Where an authorisation is suspended or revoked under the provisions of this Act the Minister shall notify the suspension or revocation to the supervisory authorities of any other Member State of the European Communities in which the undertaking carries on business.

(4) Where an undertaking has its head office in another Member State the Minister shall not revoke the authorisation of the undertaking without first consulting the supervisory authority of the Member State in which the head office is situated. The Minister may, however, suspend the authorisation of the undertaking in the State before such consultation is concluded and shall in such a case notify the supervisory authority of the Member State where the head office is situated.

(5) The Minister may terminate the suspension of an authorisation at any time by notifying the undertaking that its authorisation has been restored.

(6) An undertaking may appeal to the Court against a decision of the Minister to suspend or revoke an authorisation.

(7) The whole or part of an appeal under this section may be heard in chambers.

(8) Nothing in this Act in regard to the suspension or revocation of an authorisation shall affect the validity or due continuance and fulfilment of any contract of insurance effected before the suspension or revocation of the authorisation.

Appointment of authorised officers.

59.—(1) The Minister may appoint such and so many of his officers as he thinks fit to be authorised officers for the purposes of the Insurance Acts.

(2) Every authorised officer shall be furnished with a warrant of his appointment as an authorised officer, and, when exercising any power conferred on an authorised officer by section 60 , shall, if requested by any person affected, produce the warrant to that person.

Powers of authorised officers.

60.—(1) An authorised officer may, for the purpose of obtaining any information which the Minister may require for enabling him to exercise his functions under the Insurance Acts, do any one or more of the following things—

(a) enter at all reasonable times any premises in which he has reasonable grounds for believing that there are any books, documents or records relating to the issue of any policy, bond, certificate or other instrument of insurance, or to the acceptance of any premium in respect of a policy, bond, certificate or other instrument of insurance,

(b) require any person employed in the premises to produce to him any books, documents or records which are in such person's control, possession or procurement and which such officer has reasonable grounds for believing to be records, books or documents relating to the issue of any policy, bond, certificate or other instrument, and to give him such information as he may reasonably require in regard to any entries in any such records, books or documents,

(c) inspect any book, record or other document produced in pursuance of a requirement under the Insurance Acts and, if he thinks fit, copy any entry in such record, book or document.

(2) A person who obstructs or impedes an authorised officer in the exercise of a power or does not comply with a requirement under this section shall be guilty of an offence.

Codes of conduct on duty of disclosure and warranties.

61.—Where the Minister considers it necessary in the public interest and following consultation with the insurance industry and consumer representatives, he may by order prescribe codes of conduct to be observed by undertakings in their dealings with proposers of policies of insurance and policyholders renewing policies of insurance in respect of duty of disclosure and warranties.

FIRST SCHEDULE

Enactments Repealed

Section 9

SECOND SCHEDULE

Increase of Penalties

Section 3 (4)

¹OJ L228/3 of 16.8.73

²OJ L63/1 of 13.3.79