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The Insurance Companies (Amendment) Regulations 1990

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Explanatory Note

(This note is not part of the Regulations)

These Regulations make amendments to the Insurance Companies Act 1982 (“the 1982 Act”), the Insurance Companies Regulations 1981 (“the 1981 Regulations”) and the Insurance Companies (Accounts and Statements) Regulations 1983 (“the 1983 Regulations”). The purpose of the amendments is to implement Council Directive 88/357/EEC (O.J. No. L172, 4.7.88, p. 1) relating to non-life insurance. Council Directive 73/239/EEC (O.J. No. L228, 16.8.73, p. 3) created a supervisory regime for direct non-life “establishment” business (ie general insurance business carried on by insurers through an establishment in a member State). Directive 88/357/EEC introduces changes to that regime and makes new provision for the regulation of insurers who provide direct non-life insurance to cover risks in a member State on a “services” basis, ie otherwise than through an establishment in that State.

Regulation 1 makes provision for the citation and commencement of the Regulations and describes their purpose as referred to above.

Regulation 2 inserts a new section 96A in the 1982 Act, which defines the Directives and certain expressions deriving from them, in particular references to an insurance company’s establishment, the member State where the risk is situated, and the ECU.

Regulation 3 amends regulation 29 of the 1981 Regulations (which prescribes the information to be submitted under section 5(1) of the 1982 Act on an application for authorisation under section 3) by excluding from the particulars of general and special policy conditions required by Schedule 5 specific conditions designed to meet in an individual case the particular circumstances of the risk to be covered.

Regulation 4 inserts a new section 96B in the 1982 Act, which defines the meaning of “large risks”, for which, in certain respects, separate provision is made.

Regulation 5 amends, in relation to general business, regulation 25 of the 1981 Regulations (matching), in particular by providing that a company need not normally cover its general business liabilities by assets in a particular currency if those assets would amount to 7 per cent or less of the remainder of its assets in other currencies.

Regulation 6 amends Part V of the 1982 Act by inserting a new section 94A and a new Schedule 3A containing new rules governing the law applicable to contracts of direct general business insurance covering risks situated in the Community. Where a contract has a connection with more than one country (including the different parts of the United Kingdom) the rules will determine the law of which country is to govern the contract.

Regulation 7 amends Schedule 5 to the 1981 Regulations (information to be submitted with applications for authorisation) as regards particulars concerning the nature of the commitments which are to be taken on, policy or treaty conditions and tariffs.

Regulation 8 amends sections 11(2), 37(2) and 54(1) and (2) of the 1982 Act by extending the grounds on which the Secretary of State may withdraw a company’s authorisation, exercise powers of intervention or present a winding-up petition, to cases where an insurance company has failed to satisfy an obligation to which it is subject under the law of another member State.

Regulation 9 amends section 51 of the 1982 Act (transfers of general business) by requiring that, before the Secretary of State approves a transfer to a company whose head office is in another member State, the supervisory authorities of that State must have issued a certificate that the company possesses the necessary margin of solvency after taking the proposed transfer into account. It makes provision to enable a transfer of policies covering risks situated in the United Kingdom to an insurance company established in another member State. It also inserts new section 52A which provides for the issue of certificates by the Secretary of State in cases where an insurance company’s head office is situated in the United Kingdom.

Regulation 10 introduces a new Part IIIA into the 1982 Act to regulate the provision of direct general business insurance in one member State through an establishment of an insurance company situated in another member State and having its head office within the Community. Part IIIA–

(a)requires a company intending to provide such insurance in the United Kingdom to notify the Secretary of State by furnishing him with specified certificates and other documents (new section 81B);

(b)requires that in such a case before entering into a contract to provide insurance in the United Kingdom (other than a contract for the coverage of “large risks”), a company shall provide specified information to the policy holder, and in addition (whether the contract is for the coverage of “large risks” or other risks) requires that further specified information concerning the insurance company shall be included in the insurance policy and any other document under the terms of which insurance cover is granted (new section 81C);

(c)confers powers on the Secretary of State to intervene in respect of an insurance company which fails to comply with any provision of the Act (new section 81D), to require information (new section 81E) and to direct a company to cease to provide insurance in the United Kingdom if its authorisation has been withdrawn (new section 81F);

(d)requires an insurance company which intends to provide general business insurance in another member State and either has its head office in the United Kingdom or intends to provide the insurance through an establishment in the United Kingdom, to notify the Secretary of State of its intention by furnishing him with specified information (new section 81G); and enables the Secretary of State to issue certificates corresponding to those referred to in paragraph (a) above (new section 81H);

(e)requires that before the Secretary of State approves under section 51 of the 1982 Act a transfer to another company in the United Kingdom of general business policies written by way of the provision of insurance in another member State, he must be satisfied that the transferee fulfils specified conditions in the member State where the risk is situated and that the supervisory authorities of that member State agree to the transfer (new section 81I(1));

(f)enables the Secretary of State to approve under that section a transfer to an insurance company established in another member State of policies written by way of the provision of insurance in another member State, subject to specified conditions, notably that the relevant supervisory authorities agree to the transfer (new section 81I(2));

(g)requires notice of a transfer approved under the provisions referred to in paragraphs (e) and (f) to be published in a specified manner in the member State in which the risk is situated (new section 81I(3));

(h)makes it an offence for an insurance company to provide insurance in the United Kingdom in contravention of new section 81B or to make default in complying with any other provision of the Act and for any person to supply false information pursuant to specified requirements (new section 81J).

Regulation 11 amends the 1983 Regulations by requiring an insurance company which provides insurance in another member State through an establishment in the United Kingdom to prepare additional information to be submitted to the Secretary of State by virtue of regulation 16 of those Regulations in respect of those operations, namely an analysis of gross premiums and, in specified circumstances, an underwriting account. The forms to be used for this purpose are specified in the Schedule.

Regulation 12 amends Schedule 9 to the 1981 Regulations (which defines relevant co-insurance operations for the purposes of determining the amount of liabilities arising in respect of such operations) by extending its application to class 14 (credit) and class 15 (suretyship).

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