S.I. No. 359/1994 - European Communities (Non-Life Insurance) Framework Regulations, 1994

PART 5. *Right of Establishment, Freedom to Provide Services, Motor Insurance Business, General Conditions, Prevention of Irregularities*

28 Provisions Relating to the right of Establishment of a Branch outside the State.

28.

28. (1) An insurance undertaking with a head office in the State proposing to establish a branch in another Member State shall notify the Minister of its proposal.

• (2) The notification referred to in sub-article (1) of this Article shall provide the following information—

( a ) the Member State within the territory of which the insurance undertaking proposes to establish the branch;

( b ) a scheme of operations setting out, inter alia, the types of business envisaged and the structural organisation of the branch;

( c ) the address in the Member State of the branch from which documents may be obtained and to which they may be delivered, being the address to which all communications to the authorised agent of the branch are sent;

( d ) the name of the authorised agent of the branch being a person possessing sufficient powers to bind the insurance undertaking in relation to third parties and to represent it in relations with the authorities and Courts of the Member State of the branch.

• (3) ( a ) An insurance undertaking with a head office in the State which intends to carry on insurance business in respect of the coverage of a risk classified under class 10 of Annex I to these Regulations, other than carrier's liability, by way of a branch in another member State shall submit a declaration to the Minister attesting that the insurance undertaking has become a member of the national bureau and the national guarantee fund of the Member State of the branch.

( b ) In this sub-article—

"national bureau" means a national insurers' bureau as defined in Article 1 (3) of Council Directive 72/166/EEC^(6);

"national guarantee fund" means the body referred to in Article 1 (4) of Council Directive 84/5/EEC^(7).

^(6)O.J. L103, 2.5.1972, page 1.

^(7)O.J. L8, 11.1.1984, page 17.

• (4) The Minister shall, within three months of receipt of all the information referred to in sub-articles (2) and (3) of the Article, furnish such information to the supervisory authority of the member State of the branch and the Minister shall notify the insurance undertaking concerned accordingly.

• (5) The Minister shall also furnish a certificate attesting if such be the case that the insurance undertaking possesses the minimum solvency margin calculated in accordance with Annex II to these Regulations.

• (6) Where the Minister has reason—

( a ) to believe that the administrative structure of the insurance undertaking, or the financial situation of the insurance undertaking is inadequate, or

( b ) to doubt the good repute or professional qualifications or experience of the directors or manager or the authorised agent, taking into account the forecast business plan,

the Minister shall not be required to furnish the information referred to in sub-articles (2) and (3) of this Article to the supervisory authority of the Member State of the branch.

• (7) Where the Minister decides to refuse to furnish the information referred to in sub-articles (2) and (3) of this Article to the supervisory authority of the Member State of the branch the Minister shall notify the insurance undertaking of the grounds for such refusal within three months of receipt of all the information in question.

• (8) An insurance undertaking may appeal against a refusal or failure to furnish the information in question to the Court.

29 Amendment to branch information.

29.

29. Where an insurance undertaking established in the State intends to change the information given in respect of Article 28 (2) (b), (c) or (d) of these Regulations, it shall furnish a notification of any such change to the Minister and to the supervisory authorities of the Member State of the branch at least one month before making the change in order, having regard to the proposed changes, for the Minister to exercise the Minister's functions in accordance with sub-articles (4), (6), (7) and (8) of Article 28 of these Regulations and for the supervisory authorities of the Member State of the branch to inform the Minister of the conditions under which, in the interest of the general good as applied in that Member State, having regard to the proposed changes, the insurance business may be carried on in that State.

30 Conditions for Establishing a Branch in the State.

30.

30. Where an insurance undertaking not established in the State intends to carry on insurance business by way of a branch in the State, and where the supervisory authorities of that insurance undertaking have furnished to the Minister the appropriate information referred to in sub-article (2) of Article 28 of these Regulations, together with a declaration (where appropriate) attesting that the insurance undertaking has become a member of the Motor Insurers' Bureau of Ireland and the guarantee fund referred to in Article 1 (4) of Council Directive 84/5/EEC (in this Part referred to as "the guarantee fund") and a certificate attesting that the insurance undertaking possesses the minimum solvency margin calculated in accordance with Annex II to these Regulations, the Minister shall, within two months of receiving the information referred to in this Article and before the branch commences business, notify the supervisory authority of the home Member State of the conditions under which, in the interest of the general good, the insurance business may be carried on in the State.

31 Amendment to branch information.

31.

31. Where an insurance undertaking with a branch established in the State intends to change the information given in respect of Article 28 (2) (b), (c) or (d) of these Regulations, it shall furnish a notification of any such change to the Minister at least one month before making the change in order that, having regard to the proposed changes, the requirements of Article 30 of these Regulations may be fulfilled.

32 Conditions for carrying on insurance business by way of services into another Member State.

32.

32. (1) An insurance undertaking established in the State which intends to carry on business by way of services for the first time in one or more other Member States shall send a notification to the Minister indicating the nature of the risks which the insurance undertaking proposes to cover.

• (2) The Minister shall, within one month of the notification provided for in sub-article (1) of this Article, furnish the following information to the supervisory authorities of the Member State or Member States within the territories of which the insurance undertaking intends to carry on insurance business by way of services:

( a ) a certificate if such be the case attesting that the insurance undertaking possesses the minimum solvency margin in accordance with Annex II to these Regulations;

( b ) the classes of insurance which the insurance undertaking has been authorised to offer, and

( c ) the nature of the risks which the insurance undertaking proposes to cover in the Member State or Member States within the territories of which the insurance undertaking intends to carry on insurance business by way of services.

• (3) The Minister shall, at the same time, notify the insurance undertaking concerned accordingly.

• (4) The insurance undertaking may commence carrying on insurance business by way of services from the date certified by the Minister of the notification of the information referred to in sub-article (2) of this Article.

• (5) Where the Minister refuses to furnish the information referred to in sub-article (2) of this Article within the period laid down, the Minister shall notify the insurance undertaking of the grounds for the refusal within the same period.

33 Conditions for carrying on insurance business by way of services into the State.

33.

33. (1) An insurance undertaking may carry on insurance business by way of services into the State on or after the date on which the supervisory authority of its home Member State certify that they have communicated to the Minister the appropriate information referred to in paragraphs (a), (b) and (c) of sub-article (2) of Article 32 of these Regulations.

• (2) Where an insurance undertaking intends to carry on insurance business by way of services into the State, the Minister shall, in order to give effect to the provisions contained in Article 24 of these Regulations, notify the supervisory authority of the home Member State of the conditions under which, in the interest of the general good, the insurance business may be carried on in the State.

34 Additional provisions related to risks in class 10 (other than carrier's liability) —third party motor liability insurance.

34.

34. (1) The provisions of this Article shall apply to an insurance undertaking which intends to provide services into the State in respect of the coverage of a risk classified under class 10 of Annex I to these Regulations, other than carrier's liability.

• (2) The insurance undertaking shall become a member of and participate in the financing of the Motor Insurers' Bureau of Ireland and of the guarantee fund.

• (3) The insurance undertaking shall submit a declaration to the Minister attesting that the insurance undertaking has become a member of the Motor Insurers' Bureau of Ireland and of the guarantee fund.

• (4) The insurance undertaking shall not be required to make any payment or contribution to the Motor Insurers' Bureau of Ireland or the guarantee fund other than by reference to its gross premium income in respect of the coverage of risks in class 10 of Annex I to these Regulations, other than carrier's liability, underwritten in the State by way of services, or in respect of the number of risks underwritten in the State by way of services in that Class.

• (5) The insurance undertaking shall become a party to the Declined Cases Agreement or comply with rules concerning the cover of aggravated risks, insofar as they apply to insurance undertakings established in the State.

• (6) The insurance undertaking shall ensure that persons pursuing claims arising out of events occurring in the State are not placed in a less favourable situation as a result of the fact that the undertaking is covering a risk, other than carrier's liability, in class 10 of Annex I to these Regulations by way of the provision of services rather than through an establishment situated in the State.

• (7) For this purpose, the insurance undertaking shall appoint a representative resident or established in the State who shall collect all necessary information in relation to third party motor claims and shall possess sufficient powers to represent the insurance undertaking in relation to persons suffering injury or damage who could pursue claims, including the acceptance of service on behalf of the insurance undertaking of proceedings in respect of such claims and the payment of such claims. The representative shall represent the insurance undertaking before the Courts and authorities of the State in relation to those claims.

• (8) The insurance undertaking shall notify the Minister of the name and address of the representative referred to in sub-article (7) of this Article.

• (9) The representative shall also represent the insurance undertaking in relation to confirming the existence and validity, or otherwise, of motor vehicle liability insurance policies before the competent authorities of the State.

• (10) The representative shall not be required to undertake activities on behalf of the insurance undertaking which appointed the representative other than those set out in sub-articles (8) and (9) of this Article.

• (11) The representative shall not carry on the business of direct insurance in the State on behalf of the said insurance undertaking.

• (12) The appointment of the representative shall not, in itself, constitute the establishment of a branch.

• (13) The representative shall not constitute an establishment as defined in Article 2 (c) of the Second Directive.

35 Amendment to services information.

35.

35. Where an insurance undertaking intends to amend the information provided in accordance with sub-article (1) of Article 32 of these Regulations, it shall be subject to the appropriate procedures laid down in accordance with sub-articles (1), (2), (3), (4), and (5) of Article 32 of these Regulations. The insurance undertaking shall also be subject to the procedures laid down in accordance with Articles 33 and 34 of these Regulations.

36 General conditions regarding the establishment of a branch or the provision of services.

36.

36. (1) The Minister may require the information required to be furnished in respect of an insurance undertaking which carries on business in the State by way of a branch or by way of provision of services to be supplied in the Irish and English language.

• (2) The Minister shall not make provisions requiring the prior approval or systematic notification of general and special policy conditions, scales of premiums or forms and other printed documents which an insurance undertaking with a branch established in the State or providing services into the State intends to use in its dealings with policyholders.

• (3) The Minister may require the non-systematic notification of the general and special policy conditions and other documents necessary for the purposes of verifying compliance with the law (including relevant provisions in these Regulations) concerning insurance contracts. A notification shall not constitute a prior condition for an insurance undertaking to carry on insurance business by way of branch establishment or by way of services into the State.

37 Prevention of Irregularities.

37.

37. (1) Where an insurance undertaking is carrying on insurance business by way of branch establishment or by way of services into the State, it shall submit to the Minister, on request, all documents which the Minister considers necessary for the purposes of implementing this Article insofar as an insurance undertaking with a head office established in the State is also required to do so.

• (2) Where an insurance undertaking carrying on insurance business by way of branch establishment or by way of services into the State does not comply with the Insurance Acts and Regulations, the Minister shall by direction require the insurance undertaking to do so.

• (3) Where an insurance undertaking fails to comply with a direction referred to in sub-article (2) of this Article, the Minister shall inform the supervisory authorities of the home Member State so that they may take all appropriate measures in accordance with Article 40 (4) of the Directive.

• (4) If, after invoking the procedures of sub-article (3) of this Article, the measures taken against the insurance undertaking carrying on insurance business by way of services into the State or by way of branch establishment are, in the opinion of the Minister, not adequate and the insurance undertaking continues to contravene the Insurance Acts and Regulations, the Minister may, after informing the supervisory authorities of the home Member State, apply to the Court for such order as to the Court may seem fit, in order to prevent further infringements of the Insurance Acts and Regulations, including in so far as is necessary and in accordance with the Insurance Acts and Regulations, the prevention of that undertaking from continuing to conclude new insurance contracts within the State.

• (5) Nothing in this Article shall affect any other powers of the State to proceed against insurance undertakings transacting business in the State for failing to comply with the laws of the State, including the possibility of preventing insurance undertakings from continuing to conclude new insurance contracts within the State.

• (6) Any order of the Court under sub-article (4) or measure adopted by the Minister pursuant to this Article shall be communicated to the insurance undertaking and shall be supported by the precise grounds for the adoption of the measure.

• (7) Where the supervisory authorities of another Member State request the Minister to take appropriate measures in accordance with Article 40 (4) of the Directive in relation to failure to comply with the laws of that State by an insurance undertaking established in the State and which is carrying on insurance business by way of services into the former Member State or by way of a branch establishment, the Minister may apply to the Court for an order enforcing such compliance and shall communicate accordingly to the supervisory authorities of the Member State of provision of services or the Member State of the branch.

PART 6 *Advertising, Winding-up, Statistical Requirements*

38 Advertising.

38.

38. An insurance undertaking may advertise its services, through all available means of communication in the State, subject to any rules governing the form and content of such advertising adopted in the interest of the general good.

39 Winding-up of insurance undertaking.

39.

39. In the event of an insurance undertaking being wound up, commitments arising from contracts underwritten in the course of carrying on insurance business by way of services or through a branch establishment shall be met in the same way as those arising under that insurance undertaking's other insurance contracts, without distinction of nationality, as far as the insured and the beneficiaries are concerned.

40 Statistical Information.

40.

40. (1) An insurance undertaking with its head office in the State shall inform the Minister separately in respect of transactions effected by it by way of establishment and those effected by it by way of services of the amount of the premiums, claims and commissions, without deduction of reinsurance and shall so inform the Minister in respect of a Member State where such transactions are effected and in respect of each group of classes specified in sub-article (3) of this Article and also, with regard to the risk, other than carrier's liability, classified under class 10 of Annex I, of the frequency and the average cost of claims without deduction of reinsurance.

• (2) The groups of classes referred to in sub-article (1) of this Article are as follows:

• (i) accident and sickness (1 and 2),

• (ii) motor insurance (3, 7 and 10, the figures relating to class 10, other than carrier's liability, being given separately),

• (iii) fire and other damage to property (8 and 9),

• (iv) aviation, marine and transport (4, 5, 6, 7, 11 and 12),

• (v) general liability (13),

• (vi) credit and suretyship (14 and 15),

• (vii) other classes (16, 17 and 18).

• (3) The Minister shall forward the information provided in accordance with sub-articles (1) and (2) of this Article within a reasonable period of time and in aggregate form to the supervisory authorities of each of the Member States which so requests.

41 Statistical requirement regarding services and branch insurance business.

41.

41. (1) The Minister may request the supervisory authority of the home Member State of an insurance undertaking which carries on insurance in the State by way of services or by way of branch establishment, to submit the appropriate information referred to in sub-article (1) of Article 40 and other appropriate information in order that the statistical needs of the State may be fulfilled.

• (2) The Minister may, in addition, in the interest of the general good, require an insurance undertaking which has its head office in the territory of another Member State and is transacting insurance business in the State to supply such statistical information in such form and manner as the Minister may specify from time to time.

PART 7 *Guarantee Schemes, Fiscal Arrangements, Acquired Rights, Right of Appeal*

42 Obligation to join guarantee schemes.

42.

42. Insurance undertakings carrying on business by way of services into the State or by way of branch establishment in the State, including, if necessary, those insurance undertakings referred to in sub-article (4) of Article 6 of these Regulations shall join and participate in the Insurance Compensation Fund established in accordance with the Insurance Act, 1964 , and any other scheme established under the Insurance Acts and Regulations designed to guarantee the payment of insurance claims to insured persons and injured third parties on the same terms as insurance undertakings with head offices in the State.

43 Fiscal arrangements.

43.

43. (1) Every insurance contract for which the risk is situated in the State shall be subject to the indirect taxes and parafiscal charges on insurance premiums payable under the laws of the State.

• (2) Notwithstanding anything to the contrary in the Insurance Acts and Regulations and for the purposes of this Article, the moveable property contained in a building situated in the territory of the State, except for goods in commercial transit, shall be a risk situated in the State, even though the building and its contents are not covered by the same insurance policy.

• (3) The law applicable to the contract under the provisions of Article 23 of these Regulations shall not affect the fiscal arrangements applicable.

44 Acquired Rights.

44.

44. An insurance undertaking which has commenced business by way of a branch establishment in the State before the coming into operation of provisions adopted in implementing these Regulations shall be presumed to have been subject to the procedure laid down in accordance with Article 10 (1) to (5) of the First Directive.

45 Application of Regulations to branch under Article 44.

45.

45. A branch referred to in Article 44 of these Regulations shall be subject from the date of entry into force of provisions adopted in implementing these Regulations to the relevant provisions laid down in accordance with these Regulations.

46 Right of appeal to Court.

46.

46. Any decision, direction, requirement or request given or made by the Minister under these Regulations may, within twenty-one days from the day on which it was notified to the person concerned be appealed to the Court.

PART 8 *Provisions Related to Branches of Third Country Insurance Undertakings, Rules Applicable to the Assignment of Third Country Branch Policies, Rules Applicable to Health Insurance, [Section 93](https://www.irishstatutebook.ie/1936/en/act/pub/0045/sec0093.html#sec93) and [94](https://www.irishstatutebook.ie/1936/en/act/pub/0045/sec0094.html#sec94) of the [Insurance Act, 1936](https://www.irishstatutebook.ie/1936/en/act/pub/0045/index.html) , Penalties, Fees*

47 Third country branch provisions.

47.

47. Articles 47 to 56 of these Regulations apply to non-life insurance undertakings whose head office is not in a Member State ("a third country undertaking").

48 Application for authorisation.

48.

48. (1) An application for an authorisation may be made to the Minister by a third country undertaking which proposes to establish a branch in the State.

• (2) A branch of a third country undertaking authorised to undertake insurance in the State may apply to extend its business to classes of insurance for which it is not authorised or to part of such classes.

49 Conditions of Admission.

49.

49. An insurance undertaking having its head office situated outside the territories of the Member States applying for an authorisation to establish a branch in the State shall fulfil at least the following conditions:

( a ) it is entitled to undertake insurance business under the law of the State where its head office is situated;

( b ) it establishes a branch in the State;

( c ) it undertakes to maintain at the place of management of the branch in the State accounts specific to the business which it undertakes in the State and to keep at that place all the records relating to the business transacted in the State;

( d ) it designates an authorised agent for such purposes as the Minister may require and is approved by the Minister;

( e ) it possesses in the State assets of an amount equal to at least one-half of the minimum amount required by Article (3) of Part B of Annex II to these Regulations in respect of an undertaking to which that Article applies and deposits with the Court one-fourth of that minimum amount as security;

• (f) it undertakes to keep a margin of solvency in accordance with Annex II to these Regulations;

( g ) it submits a scheme of operations in accordance, insofar as is applicable, with Article 7 (2) (b) of these Regulations as if it were an insurance undertaking to which that Article applies.

50 Technical Reserves Provisions.

50.

50. An insurance undertaking authorised under Article 49 of these Regulations shall establish and maintain technical reserves adequate to cover the underwriting liabilities assumed in the State in accordance with Articles 13 and 21 of these Regulations.

51 Solvency Margin.

51.

51. (1) Subject to sub article (2) of this Article, Annex II and Article 16 (2) of these Regulations shall apply to an undertaking to which this Article applies.

• (2) In calculating a solvency margin for the purposes of this Article, account shall be taken only of the premiums or contributions and claims pertaining to the business effected by the insurance undertaking in the State or in another Member State, as appropriate.

• (3) The assets representing the solvency margin shall be retained in the State up to the amount of the guarantee fund required by Part B of Annex II to these Regulations and any excess shall be retained either in the State or in another Member State.

52 Guarantee Fund.

52.

52. (1) Subject to sub-article (2) of this Article, Part B of Annex II to these Regulations shall apply to an insurance undertaking to which this Article applies.

• (2) The amount of a minimum guarantee fund shall not be less than one-half of the minimum required under Article (3) of Part B of Annex II to these Regulations and the deposit lodged under Article 49 (e) of these Regulations shall be reckoned in calculating the amount of a guarantee fund for the purposes of this Article.

53 Annual Returns.

53.

53. Save as provided in Article 55 of these Regulations, Article 13(11) of these Regulations shall, insofar as is applicable, apply to an undertaking to which this Article applies as if the insurance undertaking was one whose head office is situated in the State.

54 Application of Articles 16 and 17.

54.

54. Articles 16 and 17 of these Regulations shall apply to an undertaking to which this Article applies subject to the following modifications, namely, that the references in Articles 16 and 17 to another Member State shall be construed as references to the Member State in which the insurance undertaking in question first commenced to carry on business.

55 Advantages under Article 26 of the First Directive/Application of Article 26 (2), (3) and (4).

55.

55. An undertaking which, having obtained an authorisation from a Member State and subsequently obtained an authorisation from one or more Member States to establish other branches therein may apply to the Minister for one or more of the advantages specified in Article 26 of the First Directive, as amended by Article 12 of Council Directive 84/641/EEC^(8), and Article 26 (2), (3) and (4) shall apply in such a case.

56 Rules applicable to the assignment of policies of branches of insurance undertakings whose head offices are outside the European Communities.

56.

56. (1) Subject to the provisions of section 13 of the Assurance Companies Act, 1909, section 36 of the Insurance Act, 1989 , and these Regulations and following consultation with the Minister an insurance undertaking to which Part 8 of these Regulations applies may assign all or part of its portfolio of insurance policies in accordance with the following sub-articles of this Article.

• (2) Where a branch established in the State of an insurance undertaking whose head office is not situated in the territory of a Member State, proposes to assign all or part of its portfolio of insurance policies covering insurance business to an assignee established in the State, the assignment shall not be effected unless the assignee possesses the necessary solvency margin after taking the assignment into account or, where appropriate, the supervisory authorities of the Member State referred to in Article 26 of the First Directive certify that the assignee possesses the necessary solvency margin after taking the assignment into account.

• (3) Where a branch established in the State of an insurance undertaking whose head office is not situated in the territory of a Member State, proposes to assign all or part of its portfolio of insurance policies covering insurance business to an assignee with a head office in another Member State, the assignment shall not be effected unless the supervisory authorities of the head office Member State certify that the assignee possesses the necessary solvency margin after taking the assignment into account.

^(8)O.J. L339, 27.12.1984, page 21.

• (4) A branch established in the State of an insurance undertaking whose head office is not situated in the territory of a Member State may not assign all or part of its portfolio of insurance policies covering insurance business to an undertaking, established in another Member State, whose head office is not situated in the territory of a Member State.

• (5) In the cases referred to in sub-articles (2) and (3) of this Article, the assignment shall not be effected without obtaining the agreement of the supervisory authorities of the Member States in which the risks are situated if different from the Member State where the branch is established.

• (6) Where the supervisory authorities of the Member States in which the risks are situated have not given a response indicating consent to or an opinion on the proposed assignment to the Minister within three months of receiving notification of the assignment, the assignment shall be deemed to be agreed.

• (7) Where the Minister is consulted in accordance with Article 53 (4) and (5) of the Directive, the Minister shall have a period of three months from the date of consultations by the supervisory authorities of the home Member State within which to issue an opinion on or consent to the proposed assignment.

• (8) Where the Minister has not given a response indicating an opinion on or consent to the proposed assignment at the expiry of the period referred to in sub-article (7) of this article, the assignment shall be deemed to be agreed.

• (9) An assignment effected in accordance with this Article shall be published subject to the provisions of sub-article (1) of this Article by advertisement once in Iris Oifigiúil and once in each of two daily newspapers published in the State and published in the Member State where the risk is situated in accordance with the law of that Member State.

• (10) An assignment effected in accordance with this Article shall be valid against the policyholders, the insured persons and any other persons having rights or obligations arising out of the insurance policies assigned.

57 Health Insurance.

57.

57. (1) Notwithstanding anything to the contrary in the Insurance Acts and Regulations, health insurance contracts included in class 2 of Part A of Annex I to these Regulations which serve as a partial or complete alternative to health insurance cover provided by the statutory social security system shall comply with the general good requirements of the State.

• (2) In this Article—

the "general good" includes a requirement that such insurance contracts referred to in sub-article (1) of this Article provide for open enrolment, community rating and lifetime cover, in accordance with any enactment for the time being in force.

58 Sections 93 and 94 of the Insurance Act, 1936 .

58.

58. For the purposes of sections 93 and 94 of the Insurance Act, 1936 , and whenever the context so requires, every insurance policy, bond, certificate or other instrument of insurance issued by an insurance undertaking or syndicate carrying on business either by way of services or by way of establishment in respect of risks situated in the State shall be deemed to be issued in the State, and all moneys which become or may become due and payable by such insurance undertaking or syndicate under such insurance policy shall be payable and paid in the State, unless the policy otherwise provides.

59 Penalties.

59.

59. (1) Insurance undertakings and all persons concerned shall comply with these Regulations including any applicable decision, direction, requirement or request of the Minister thereunder.

• (2) A person who fails to comply with any provision of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

• (3) If, after conviction of an offence, a person continues to contravene the provision, that person shall be guilty of an offence on each day on which the contravention continues and shall be liable on summary conviction to a fine not exceeding £1,500 for each such offence.

• (4) 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.

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

60 Fees.

60.

60. (1) An application to the Minister for an authorisation under these Regulations shall be in writing and shall, when filled in and completed by or on behalf of the applicant for such authorisation, be sent by post to or left with the Secretary of the Department of Enterprise and Employment and shall be accompanied by—

( a ) if the application is by an undertaking mentioned in Article 6 (6) (a) of these Regulations, a fee of £4,000,

( b ) if the application is by an insurance undertaking mentioned in Article 6 (6) (b) of these Regulations, a fee of £1,000,

( c ) if the application is by an insurance undertaking mentioned in Article 6 (6) (a) of these Regulations which proposes to establish a branch outside the State, a fee of £2,000,

( d ) if the application is by an undertaking mentioned in Article 48 (1) of these Regulations, a fee of £2,000,

( e ) if the application is by an undertaking mentioned in Article 48 (2) of these Regulations, a fee of £1,000,

• (2) The Minister may, by order, amend any amount specified in paragraphs (a) to (e) of sub-article (1) of this Article.

ANNEX I

A. Classification of risks according to classes of insurance

— fixed pecuniary benefits

— benefits in the nature of indemnity

— combinations of the two

— injury to passengers

— fixed pecuniary benefits

— benefits in the nature of indemnity

— combinations of the two

All damage to or loss of

— land motor vehicles

— land vehicles other than motor vehicles

All damage to or loss of railway rolling stock

All damage to or loss of aircraft

All damage to or loss of

— river and canal vessels

— lake vessels

— sea vessels

7. Goods in transit (including merchandise, baggage, and all other goods)

All damage to or loss of goods in transit or baggage, irrespective of the form of transport

All damage to or loss of property (other than property included in classes 3,4,5,6 and 7) due to

— fire

— explosion

— storm

— natural forces other than storm

— nuclear energy

— land subsidence

All damage to or loss of property (other than property included in classes 3, 4, 5, 6 and 7) due to hail or frost, and any event such as theft, other than those mentioned under 8

All liability arising out of the use of motor vehicles operating on the land (including carrier's liability)

All liability arising out of use of aircraft (including carrier's liability)

All liability arising out of the use of ships, vessels or boats on the sea, lakes, rivers or canals (including carrier's liability)

All liability other than those forms mentioned under Nos. 10, 11 and 12

— insolvency (general)

— export credit

— instalment credit

— mortgages

— agricultural credit

— suretyship (direct)

— suretyship (indirect)

— employment risks

— insufficiency of income (general)

— bad weather

— loss of benefits

— continuing general expenses

— unforeseen trading expenses

— loss of market value

— loss of rent or revenue

— indirect trading losses other than those mentioned above

— other financial loss (non-trading)

— other forms of financial loss

Legal expenses and costs of litigation

Assistance for persons who get into difficulties while travelling, while away from home or while away from their permanent residence

The risks included in a class may not be included in any other class except in the cases referred to in Part C.

B. Description of authorisations granted for more than one class of insurance

Where the authorisation simultaneously covers:

( a ) Classes Nos. 1 and 2, it shall be named "Accident and Health Insurance";

( b ) Classes Nos. 1 (fourth indent), 3, 7 and 10, it shall be named "Motor Insurance";

( c ) Classes Nos. 1 (fourth indent), 4, 6, 7 and 12, it shall be named "Marine and Transport Insurance";

( d ) Classes Nos. 1 (fourth indent), 5, 7 and 11, it shall be named "Aviation Insurance";

( e ) Classes Nos. 8 and 9, it shall be named "Insurance against Fire and other Damage to property";

( f ) Classes Nos. 10, 11, 12 and 13, it shall be named "Liability Insurance";

( g ) Classes Nos. 14 and 15, it shall be named "Credit and Suretyship Insurance";

( h ) All classes, it shall be named at the choice of the Member State in question, which shall notify the other Member States and the Commission of its choice.

C. Ancillary risks

An undertaking obtaining an authorisation for a principal risk belonging to one class or a group of classes may also insure risks included in another class without an authorisation being necessary for them if they:

— are connected with the principal risk,

— concern the object which is covered against the principal risk, and

— are covered by the contract insuring the principal risk.

However, the risks included in classes 14, 15 and 17 in Part A of this Annex may not be regarded as risks ancillary to other classes. Nonetheless, the risk included in class 17 (legal expenses insurance) may be regarded as an ancillary risk of class 18 where the conditions laid down in the first paragraph are fulfilled, where the main risk relates solely to the assistance provided for persons who fall into difficulties while travelling, while away from their permanent residence.

Legal expenses insurance may also be regarded as an ancillary risk under the conditions set out in the first paragraph where it concerns disputes arising out of, or in connection with, the use of sea-going vessels.

D. Correspondence between classes of non-life insurance licensed under the Insurance Act, 1936 , and the classes of the Annex to Council Directive 73/239/EEC

(1)	(2)	(3)
Classes of insurance business licensed under Insurance Act, 1936 .	Equivalent classes of insurance business specified under Section a of the Annex to Council Directive 73/239/EEC.	Groups of Classes specified under Section B of the Annex to the directive into which those in Column (2) fall.
Fire	8	e
Accident	1, 2	a
Employers Liability	13	f
Mechanically Propelled Vehicle	1, 3, 7, 10	b
Public Liability	13	f
Engineering	9, 13	e and f
Glass	9	e
Guarantee	9, 15	e and g
Burglary	9	e
Bond Investment	16	—

ANNEX II

PART A

Solvency Margin

( a ) the paid up share capital or, in the case of a mutual insurance undertaking, the effective initial fund plus any members' accounts which meet all the following criteria:

• (i) the memorandum and articles of association must stipulate that payments may be made from these accounts to members only insofar as this does not cause the solvency margin to fall below the required level, or, after the dissolution of the insurance undertaking, if all the insurance undertaking's other debts have been settled;

• (ii) the memorandum and articles of association must stipulate, with respect to any such payments for reasons other than the individual termination of membership, that the competent authorities must be notified at least one month in advance and can prohibit the payment within that period and

• (iii) the relevant provisions of the memorandum and articles of association may be amended only after the competent authorities have declared that they have no objection to the amendment, without prejudice to the criteria stated in (a) and (b);

( b ) one-half of the unpaid share capital or the initial fund, once the paid-up part reaches 25 per cent. of that share capital or fund,

( c ) reserves (including both statutory reserves and free reserves) not corresponding to underwriting liabilities,

( d ) any carry-forward of profits,

( e ) in the case of a mutual or mutual-type association with variable contributions, any claim which it has against its members by way of a call for supplementary contribution, within the financial year, up to one-half of the difference between the maximum contributions and the contributions actually called in, and subject to a limit of 50 per cent. of the margin,

( f ) at the request of, and upon proof being shown to the Minister by the insurance undertaking, any hidden reserves resulting from underevaluation of assets insofar as such hidden reserves are not of an exceptional nature.

( g ) with the consent of the Minister, preferential share capital and subordinated loan capital up to 50 per cent. of the margin, no more than 25 per cent. of which shall consist of subordinated loans with a fixed maturity, or fixed-term preferential share capital, if the following minimum criteria are met:

• (i) in the event of the bankruptcy or liquidation of the insurance undertaking, binding agreements must exist under which the subordinated loan capital or preferential share capital ranks after the claims of all other debts outstanding at the time have been settled.

Subordinated loan capital must fulfil the following additional conditions:

• (ii) only fully paid-up funds may be taken into account;

• (iii) for loans with a fixed maturity, the original maturity must be at least five years. No later than one year before the repayment date the insurance undertaking must submit to the competent authorities for their approval a plan showing how the solvency margin will be kept at or brought to the required level at maturity, unless the extent to which the loan may rank as a component of the solvency margin is gradually reduced during at least the last five years before the repayment date. The Minister may authorise the early repayment of such loans provided application is made by the issuing insurance undertaking and its solvency margin will not fall below the required level;

• (iv) loans the maturity of which is not fixed must be repayable only subject to five years' notice unless the loans are no longer considered a component of the solvency margin or unless the prior consent of the Minister is specifically required for early repayment. In the latter event the insurance undertaking must notify the Minister at least six months before the date of the proposed repayment, specifying the actual and required solvency margins both before and after that repayment. The Minister shall authorise repayment only if the insurance undertaking's solvency margin will not fall below the required level;

• (v) the loan agreement must not include any clause providing that in specified circumstances, other than the winding-up of the insurance undertaking, the debt will become repayable before the agreed repayment dates;

• (vi) the loan agreement may be amended only after the competent authorities have declared that they have no objection to the amendment;

( h ) securities with no specified maturity date and other instruments that fulfil the following conditions, including preferential shares other than those mentioned in the preceding indent, up to 50 per cent. of the margin for the total of such securities and the subordinated loan capital referred to in the preceding indent:

( a ) they may not be repaid on the initiative of the bearer or without the prior consent of the competent authority;

( b ) the contract of issue must enable the insurance undertaking to defer the payment of interest on the loan;

( c ) the lender's claim on the insurance undertaking must rank entirely after those of all non-subordinated creditors;

( d ) the documents governing the issue of the securities must provide for the loss-absorption capacity of the debt and unpaid interest, while enabling the insurance undertaking to continue its business;

( e ) only full paid-up amounts may be taken into account.

( b ) In the case of an insurance undertaking which substantially underwrites only one or more of the risks of credit, storm, hail, frost, the preceding seven years shall be taken as the period for the reference for the average burden of claims.

( a ) First result (premium basis):

• (i) the premiums or contributions (inclusive of charges ancillary to premiums or contributions) due in respect of all direct business in the last financial year for all financial years, shall be aggregated;

• (ii) to this aggregate there shall be added the amount of premiums accepted for all reinsurance in the last financial year;

• (iii) from this sum there shall be deducted the total amount of premiums or contributions cancelled in the last financial year, as well as the total amount of taxes and levies pertaining to the premiums or contributions entering into the aggregate;

• (iv) the amount so obtained shall be divided into two portions, the first portion extending up to 10 million units of account, the second comprising the excess: 18 per cent. and 16 per cent. of these portions respectively shall be calculated and added together;

• (v) the first result shall be obtained by multiplying the sum calculated in accordance with clauses (i) to (iv) by the ratio existing in respect of the last financial year between the amount of claims less reinsurance recoverable and the gross amount of claims, but this ratio may in no case be less than 50 per cent.

( b ) Second result (claims basis):

• (i) the amounts of claims paid in respect of direct business (without any deduction of claims recoverable from reinsurers and retrocessionaires) in the periods referred to in paragraph 4 of this Annex shall be aggregated;

• (ii) to this aggregate there shall be added the amount of claims paid in respect of reinsurance or retrocessions accepted during the same periods;

• (iii) to this sum there shall be added the amount of provisions or reserves for outstanding claims established at the end of the last financial year both for direct business and for reinsurance acceptances;

• (iv) from this sum there shall be deducted the amount of recoveries effected during the periods referred to in paragraph 3 of this Annex;

• (v) from the sum then remaining there shall be deducted the amount of provisions or reserves for outstanding claims established at the commencement of the second financial year preceding the last financial year for which there are accounts, both for direct business and for reinsurance acceptances;

• (vi) one-third or one-seventh of the amount so obtained according to the period of reference established in paragraph 3 of this Annex shall be divided into two portions, the first extending up to seven million units of account and the second comprising the excess; 26 per cent. and 23 per cent. of these portions respectively shall be calculated and added together;

• (vii) the second result shall be obtained by multiplying the sum calculated in accordance with this paragraph by the ratio existing in respect of the latest financial year between the amount of claims less reinsurance recoverable and the gross amount of claims, but this ratio may in no case be less than 50 per cent.

( a ) the premiums paid are calculated on the basis of sickness tables according to the mathematical method applied in life insurance;

( b ) a reserve is set up for increasing age;

( c ) an additional premium is collected in order to set up a safety margin of an appropriate amount;

( d ) the insurer may only cancel the contract before the end of the third year of insurance at the latest;

( e ) the contract provides for the possibility of increasing premiums or reducing payment even for current contracts.

ANNEX II

PART B

Guarantee Fund

( a ) 1,400,000 ECU in a case where all or some of the risks included in that class are covered, as respects an undertaking for which the annual amount of premiums of contributions due in the class listed in Part A of Annex I at reference number 14 for each of the preceding three financial years exceeded 2,500,000 ECU or 4 per cent. of the total amount of premiums or contributions receivable by that undertaking,

( b ) 400,000 ECU in a case where all or some of the risks included in any one of the classes listed in Part A of Annex I at reference numbers 10, 11, 12, 13 and 15 and (as respects undertakings other than those referred to in paragraph (a)) reference number 14 are covered, and

( c ) 400,000 units of account in a case where all or some of the risks included in one of the classes listed in Part A of Annex I at reference numbers 10, 11, 12, 13, 14, or 15 are covered,

( d ) 300,000 units of account in a case where all or some of the risks included in one of the classes listed in Part A of Annex I at reference numbers 1, 2, 3, 4, 5, 6, 7, 8, 16 and 18 are covered,

( e ) 200,000 units of account in a case where all or some of the risks included in one of the classes listed in Part A of Annex I at reference numbers 9 or 17 are covered.

• (i) a period of three years in which to bring the fund up to 1,000,000 ECU,

• (ii) a period of five years in which to bring the fund up to 1,200,000 ECU,

• (iii) a period of seven years in which to bring the fund up to 1,400,000 ECU,

( b ) The periods referred to in paragraph (a) of this sub-article shall run from the date from which the conditions referred to in Article 3 (a) are fulfilled.

ANNEX III

VALUATION OF ASSETS

"approved credit institution" means a credit institution as defined in Article 1 of the first Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (77/780/EEC)^(9) authorised in a Member State or other institution approved by the Minister;

"approved financial institutions" means any of the following—

( a ) the Central Bank of a Member State,

( b ) the European Bank for Reconstruction and Development,

( c ) the European Investment Bank,

^(9)O.J. L322, 17.12.1977, page 30.

( d ) the European Communities,

( e ) the International Bank for Reconstruction and Development,

( f ) the International Finance Corporation,

( g ) the International Monetary Fund,

( h ) such other institution as may be approved by the Minister;

"approved securities" means any of the following—

( a ) securities of the Government (including Savings Certificates),

( b ) securities guaranteed as to capital and interest by the Government,

( c ) stocks, securities or mortgages issued by and charged on all or any of the property or revenues of a local authority in the State,

( d ) any loan to, or deposit with, an approved credit institution or an approved financial institution,

( e ) any securities issued or guaranteed by, and any deposits of cash with any government, public or local authority or nationalised industry or undertaking, which belongs to Zone A as defined in the Council Directive on a solvency ratio for credit institutions (89/647/EEC)^(10);

( f ) any loan to a Member State, to a regional or local authority in a Member State, or to an international organisation of which one or more Member States are members;

"asset" includes part of an asset;

"building society" means a building society within the meaning of the Building Societies Act, 1989 ;

"company" includes any body corporate;

^(10)O.J. L386, 30.12.1989, page 14.

"computer equipment" means the electro-mechanical and electronic units which make up a computer configuration;

"contract for differences" means a contract the object of which is to secure a profit or avoid a loss by reference to fluctuations in the value or price of a financial asset or in an index of such assets;

"debenture" includes debenture stock and bonds, whether constituting a charge on assets or not, and loan stock or notes;

"debt" includes an obligation to pay a sum of money under a negotiable instrument but only includes payments under derivative instruments to the extent that these are unconditionally guaranteed;

"dependant" has the meaning assigned to it in paragraph (2);

"derivative instrument" means a futures contract, an option or a contract for differences;

"equity share" means a share of equity share capital;

"equity share capital" in relation to a company, means its issued share capital excluding any part thereof which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution;

"futures contract" means a contract calling for the delivery of a financial asset at the end of a designated period of time at a price agreed upon when the contract is made;

"fixed interest securities" means securities which under their terms of issue provide for fixed amounts of interest;

"guarantee fund" means any scheme designated to guarantee the payment of insurance claims to insured persons and injured third parties;

"industrial and provident society" means any society registered (or deemed to be registered) under the Industrial and Provident Societies Acts, 1893 to 1978;

"life assurance business assets" and "life assurance business liabilities" mean respectively assets of a life assurance company which are, for the time being, identified as representing the life assurance fund or funds maintained by the company in respect of its life assurance business and liabilities of the company which are attributable to its life assurance business;

"listed" means, in relation to an investment

( a ) that there has been granted and not withdrawn a listing in respect of that investment on a stock exchange recognised by the Minister or

( b ) that dealings in that investment are effected regularly in a regulated market recognised by the Minister and

"unlisted" shall be construed accordingly;

"life assurance" means assurance of a class specified in Annex I to the European Communities (Life Assurance) Framework Regulations, 1994;

"middle market quotation" means

( a ) in relation to an investment for which two prices are quoted in the official list published for the relevant market, the average of the two prices so quoted for the relevant date or, if no official list has been published for that day, for the most recent day prior to that day for which the official list has been published, and

( b ) in relation to an investment for which one price is quoted in the official list published for the relevant market, the price so quoted for the relevant date or, if no official list has been published for that day, for the most recent day prior to that day for which the official list has been published, and

( c ) in any other case, the nearest equivalent to the average referred to in paragraph (a) which is published or can be reasonably ascertained from information which is published;

"non-life insurance" means insurance of a class specified in Annex I to these Regulations;

"non-life business assets" and "non-life business liabilities" mean respectively assets of a non-life insurance company which are, for the time being, identified as representing the non-life insurance liabilities of the undertaking in respect of its non-life insurance business and liabilities of the undertaking which are attributable to its non-life insurance business;

"option" means a contract in which the writer of the option grants the buyer the right, but not the obligation, to purchase from or sell to the writer a financial asset either within a specified period or on a specified date at a price agreed upon when the contract is made;

"price/earnings ratio" means a price/earnings ratio (net) estimated in respect of an index appropriate to the application involved;

"proper valuation" means, in relation to land, a valuation made by a qualified value not more than one year before the relevant date which determined the amount which would be realised at the time of the valuation on an open market sale of the land free from any mortgage or charge;

"qualified valuer" in relation to any particular type of land in any particular area, means

( a ) a person who is a fellow of the Society of Chartered Surveyors in the Republic of Ireland or the Royal Institution of Chartered Surveyors and either:

• (i) has knowledge of and experience in the valuation of that particular type of land in that particular area, or

• (ii) has knowledge of and experience in the valuation of land and has taken advice from a valuer who is he is satisfied has knowledge of and experience in the valuation of that particular type of land in that particular area, or

( b ) a person who is approved for the time being by the Minister for the purposes of these Regulations;

"regulated market" has the meaning given to it in Article 1 of Council Directive 92/49/EEC;

"the Regulations of 1976" means the European Communities (Non-Life Insurance) Regulations, 1976 (S.I. 115 of 1976);

"the Regulations of 1984" means the European Communities (Life Assurance) Regulations, 1984 (S.I. 57 of 1984);

"the Regulations of 1986" means the European Communities (Life Assurance Accounts Statements and Valuation) Regulations, 1986 (S.I. 437 of 1986);

"related company" means, in relation to an insurance undertaking

( a ) a dependant of the insurance undertaking, or

( b ) a company of which the insurance undertaking is a dependant, or

( c ) a dependant of a company of which the insurance undertaking is a dependant;

"relevant date" means, in relation to the valuation of any assets for any purpose for which this Annex applies, the date when the asset falls to be valued for that purpose;

"salvage right" means any right of an insurance undertaking under a contract of insurance to take possession of and to dispose of property by virtue of the fact that the undertaking has made a payment or has become liable to make a payment in respect of a loss thereof;

"securities" has the meaning assigned to it by section 2 of the Central Bank Act, 1971 ;

"share" includes stock;

"technical reserves" mean the amount, net of the amount recoverable by the undertaking under contracts of reinsurance ceded by it (but excluding any rights of recovery in respect of insurance liabilities already discharged by the undertaking), set aside by insurance undertakings to meet their liabilities under insurance contracts;

"UCITS" means undertakings for collective investment in transferrable securities co-ordinated within the meaning of EC Council Directive 85/611/EEC^(11);

^(11)O.J. L375, page 3 and

O.J. L100, 19.4.1988, page 31.

( a ) a subsidiary undertaking of that other company and "subsidiary undertaking" shall be construed in accordance with Article 4 of the European Communities (Companies: Group Accounts) Regulations, 1992 (S.I. 201 of 1992)

( b ) that other company, either alone or with any associate or associates, is entitled to exercise, or control the exercise of 20 per cent. or more of the equity voting rights at any general meeting of the first mentioned company, or

( c ) the first-mentioned company is a dependant of any company which is that other company's dependant.

( a ) it is fully secured on an asset or assets for the valuation of which provision is made in this Part of these Regulations; and

( b ) the value of the asset or assets providing the security (after deducting reasonable expenses of sale) is sufficient to enable the debt (and any other obligation secured on the asset or assets which has priority to or ranks equally with the debt) to be discharged in full.

A. Investments

( a ) debt securities, bonds and other money and capital market instruments;

( b ) loans;

( c ) shares and other variable yield participations;

( d ) units in undertakings for collective investment in transferable securities and other investment funds;

( e ) land, buildings and immovable property rights;

B. Debts and Claims

• (f) debts owed by reinsurers;

( g ) deposits with and debts owed by ceding undertakings;

( h ) debts owed by policyholders and intermediaries arising out of direct and reinsurance operations;

( i ) claims arising out of salvage and subrogation;

( j ) tax recoveries;

( k ) claims against guarantee funds;

C. Others

( 1 ) tangible fixed assets, other than land and buildings;

( m ) cash at bank and in hand, deposits with credit institutions and any other bodies authorised to receive deposits;

( n ) deferred acquisition costs;

( o ) accrued interest and rent, other accrued income;

( b ) Failing agreement between the undertaking and the Minister on the value placed on the asset or assets by the undertaking, the Minister may call on an independent expert for the purposes of expressing an opinion on the value of the asset or assets in question.

( c ) The independent expert appointed in accordance with sub-paragraph (b) shall have regard to the provisions of these Regulations.

( d ) The valuation placed on the asset or assets by the independent expert shall be final.

( e ) The costs of any such independent valuation shall be borne by the undertaking.

"net asset value" means, in relation to a dependant, the amount by which the value of its assets, as determined in accordance with section 4 of this Annex, exceeds the amount of its liabilities as determined in the case of a dependant which is an insurance undertaking, in accordance with section 4 of this Annex.