Expert Group on European Insurance Contract Law. Meeting of April 2013

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1 Expert Group on European Insurance Contract Law Meeting of April 2013 DISCUSSION PAPER 1 1 : STATE OF PLAY AND OUTLOOK FOR CROSS- BORDER TRADE IN INSURANCE. RELEVANCE AND IMPACTS OF DIFFERENCES IN INSURANCE CONTRACT LAWS 1 POLICY BACKGROUND Under the Europe 2020 strategy, the Commission is among others tackling bottlenecks in the internal market in order to create overall sustainable economic growth. European insurers generate premium income of over 1 100bn, employ nearly one million people and invest almost 7 500bn in the economy. Even a minimum contribution to growth in this sector would have a significant positive impact on the economy as a whole. Opportunities for growth in the insurance sector can arise through cross-border trade, where the potential has not yet been fully exploited. Therefore the Commission intends to explore possibilities for possible growth stemming from an increased cross-border offer in insurance products. Both the insurance business and insurance users consumers or business - could benefit from an increase in cross-border trade. In addition, the insurance sector has also an important stabilising role to play in the present overall economic situation. Finally, with regard for instance to life insurance or professional liability insurance, increased cross-border trade may also help the mobility of workers and the free movement of services. The Commission work in the area of contract law addresses possible obstacles which differences in national contract laws could pose for cross-border trade in the Single Market. The Commission work on contract law has developed for over a decade. The Green Paper on European Contract Law 2 (Green Paper) launched in 2010 marked a new stage in the process. A number of stakeholders from the insurance sector, in particular representatives of insurance undertakings and insurance intermediaries, responded to the consultation. Many of them noted that differences in contract law posed obstacles to cross-border 1 This paper does not reflect the view of the Commission as an institution. 2 Green Paper on policy options on progress towards a European contract law for consumers and businesses, COM (2010) 348, final,

2 trade in insurance products. In its resolution of 8 June 2011 (EP Resolution) the European Parliament 3 reiterated its earlier call to include insurance contracts within the scope of an optional instrument. The European Parliament expressed its belief that such an instrument could be particularly useful for smallscale insurance contracts. It called on the Commission to establish a dedicated expert group for any future preparatory work on financial services to ensure that any future instrument takes into account the possible specific characteristics of the financial services sector. Following the Green Paper consultation, the Commission adopted a proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law on 11 October The scope of the proposal was limited to contracts for the sale of goods, contracts for the supply of digital content and contracts for related services, as sale of goods accounts for the major share of intra-eu trade and trade in digital products has a growing economic importance. Nevertheless, having considered all responses to the Green Paper, the Commission took note of the concerns expressed by stakeholders from the insurance sector. On 16 February 2012, the Commission adopted the White Paper An agenda for adequate, safe and sustainable pensions. 5 It put forward a package of initiatives with the aim of facilitating the development of complementary private retirement savings. Measure 19, which is part of this package, announced that the Commission would examine the need for removing contract law-related obstacles to the design and distribution of life insurance products with savings/investment functions in order to facilitate the crossborder distribution of certain private pension products. Having taken into account the stakeholder contributions to the Green Paper and having regard to the EP Resolution, the Commission considers that the situation in the insurance sector merits a specific in-depth analysis. The Commission, being minded to examine whether and to what extent differences in insurance contract law pose obstacles to cross-border trade in insurance products, adopted a Commission Decision setting up the Commission Expert Group on a European Insurance Contract Law (Expert Group) 6. The objective of the Expert Group is to assist the Commission in identifying whether and to what extent differences in contract laws pose an obstacle to cross-border trade in insurance products. Provided the Expert Group finds this to be the case, it shall also identify the insurance sectors and insurance law areas which are likely to be particularly affected by such obstacles. 3 Policy options for progress towards a European contract law for consumers and businesses European Parliament resolution of 8 June 2011 on policy options for progress towards a European Contract Law for consumers and businesses (2011/2013(INI)), (2012/C 380 E/09). 4 Proposal for a Regulation of The European Parliament and of the Council on a Common European Sales Law /* COM/2011/0635 final, COM(2011) 636 final, , OJ C 181, 21/06/2012 P White Paper An Agenda for Adequate, Safe and Sustainable Pensions COM(2012) 55 final, of Commission Decision on setting up the Commission Expert Group on a European Insurance Contract Law (2013/C 16/03),

3 The Expert Group comprises representatives of key stakeholders in the area of insurance, including insurance undertakings, intermediaries, business and consumer users and legal professionals. The analysis of possible obstacles to cross-border trade in insurance products will therefore take into account both the provider and the user's perspective. The Expert Group shall report on its findings by the end of The report will provide an evidence base for the Commission to decide whether and if so, which further steps in this area will be necessary. 2 ECONOMIC BACKGROUND: STATE OF PLAY OF CROSS-BORDER TRADE IN INSURANCE IN THE EU 2.1 CROSS-BORDER SUPPLY OF INSURANCE SERVICES Three generations of insurance directives have substantially facilitated the cross-border operation of insurance companies within the EU over the past 50 years. Significant barriers to cross-border activities have been removed by means of a system based on single authorisation valid for the whole of the EU, as well as co-ordinated supervisory rules. This legal framework has ensured that insurance undertakings authorised in their home Member State are allowed to pursue their activities in the form of establishment or by way of cross-border service provision throughout the EU. This framework has encouraged crossborder insurance business. For instance, the market share of foreign controlled undertakings and branches or agencies of insurance undertakings in overall EU primary insurance almost doubled respectively from 19% to 37% 7 between 2000 and Cross-border export of insurance has particularly developed in the area of life insurance. For instance, the volume of exported insurance products (by means of established branches and free provision of services) in terms of gross written premiums in the EU amounted to 42.8 billion EUR in This cross-border activity mostly related to life insurance, which accounted for 33.2 billion EUR, while non-life insurance activity covered 9.6 billion EUR. 8 Nevertheless, the level of cross-border export in insurance remains relatively low. Cross-border activity represented only 4.10% of total gross premiums written in the EU in Furthermore, when cross- 7 European Financial Stability and Integration Report 2011, p Impact Assessment accompanying The White Paper on Insurance Guarantee Schemes, SEC 2010(828), p Impact Assessment accompanying The White Paper on Insurance Guarantee Schemes, SEC 2010(828), p.17: The share of EU-wide exported activity varies however quite significantly between Member States. LU (98.89%), IE (57.24%), MT (43.32%), and EE (32.62%) are the Member States where exported activity is the most developed as a share of total activity. The share of EU-wide imported activity is instead relatively homogeneous between Member States. LT (13.45%), LV (12.60%) and CZ (11.97%), are the Member States where imported activity is the most important as a share of total activity. 3

4 border insurance services are provided in the non-life insurance sector, this is mainly done by way of establishment 10, which usually requires a greater investment of resources compared to cross-border service provision. This situation may be due to the specificities of insurance business. In particular, local presence in the policy holder's country facilitates the performance of various activities inherent in insurance. For instance, availability of local statistical data is necessary to develop actuarial models underpinning the calculation of premiums; knowledge of the local languages and maintenance of a long-term relationship throughout the duration of the contract is an important element of the claims management system. 11 However, the establishment of a permanent presence in another country inevitably requires more substantial investments than occasional provision of services at a distance. Therefore, companies which are active cross-border are likely to target specifically the markets which they consider as having sufficient potential to justify the investment. The free provision of services route would seem to be the alternative for companies which are either unwilling or unable to establish in other EU countries. The level of cross-border provision of services however seems even more limited than cross-border establishment. A recent study focusing on the nonlife insurance market found that the free provision of services accounted for less than half of the share of cross-border premiums for motor insurance. For instance, 1.7% of motor insurance premiums were written on freedom of establishment basis 12, compared to 0.6% on free provision of services basis. 13 In the area of property insurance the shares were respectively 5.2% compared to 2.8%. There are some indications that the need to deal with different rules could make it more difficult to distribute products by way of cross-border service provision. Unlike companies which establish in another country, cross-border service providers need to deal with the local requirements from a distance and often without the support of local staff. QUESTIONS: - Do you agree with the view that the overall level of cross-border activity in insurance is relatively low and has not developed its full potential? Please explain. - Do you agree that establishment plays a greater role than the cross-border free provision of insurance 10 European Financial Stability and Integration Report, 2011, p Retail Insurance Market Study, Final Report by Europe Economics, , p Retail Insurance Market Study, Final Report by Europe Economics, , p. 40 ("motor insurance" includes both motor comprehensive and third party liability insurance). 13 Retail Insurance Market Study, Final Report by Europe Economics, , p. 44 ("motor insurance" includes both motor comprehensive and third party liability insurance). 4

5 services? Please provide examples. - Do you consider that smaller companies may be hindered from starting cross-border activities in insurance, as they may not have the necessary resources? - Do you have other data on cross-border supply of insurance? Please provide other data or practical examples. 2.2 CROSS-BORDER DEMAND FOR INSURANCE SERVICES CONSUMER DEMAND Consumers seem disinterested in cross-border shopping for financial products in general, including insurance products. A clear majority of consumers in the EU buy their financial products in their own country. A recent survey found that 94% of European consumers who owned any kind of financial products, had purchased them in their own country; only 6% of consumers had bought financial products from other EU countries; 1% of consumers had purchased insurance products cross-border. 14 The survey revealed that the main reasons for not buying financial products (including insurance) from other countries, were that consumers felt that they could already access everything they needed in their own country (32%) 15 or had a preference for shopping in their own country (23%) 16. This attitude has remained fairly stable over time. 17 While a large majority of European consumers (80%) would not consider cross-border purchases of financial products in the future either, a significant minority of 10% would. Notably, half of these consumers would consider buying insurance products: 2% would be interested in life insurance products and 3% in other products, such as home, health or motor insurance. 18 The increase in demand is likely to come from consumers who currently refrain from cross-border shopping for various reasons. Some are held back by concerns: For instance, 21% of consumers shared the concern about lack of clear information, 18% did not know what their rights would be in case of problems and 17% were held back by the language barrier. 19 Some consumers may need to look for insurance products from other countries in the context of cross-border activities they may pursue in the future. Furthermore, well informed consumers may wish to buy products which offer them a higher level of protection from other countries. 14 Special Eurobarometer 373 "Retail Financial Services", 2012, p Special Eurobarometer 373 "Retail Financial Services", 2012, p. 28 and p Special Eurobarometer 373 "Retail Financial Services", 2012, p Special Eurobarometer 373 "Retail Financial Services", 2012, p. 29: In a similar survey in 2005, again over 90% of consumers had answered that they had not purchased products in another country or were not aware of doing so. 18 Special Eurobarometer 373 "Retail Financial Services", 2012, p Special Eurobarometer 373 "Retail Financial Services", 2012, p

6 2.2.2 BUSINESS DEMAND The Commission services are not aware of comprehensive data on the current cross-border business demand for insurance products. Different studies provide indications on selected classes of insurance. For instance, a recent study found that a higher level of cross-border activity took place in the area of commercial property insurance. 20 Furthermore, various sources report that there is a high level of integration in the area of industrial insurance..21 This type of insurance is likely to cover large risks, which could include property risks relating to machinery and other industrial property. QUESTIONS: - Do you have other observations or data on the level of cross-border demand for insurance? - Does the approximate level of cross-border demand from consumer and business users differ? If yes, please explain what type of demand is higher and what could be the reasons for it. - Does the level of cross-border demand in insurance differ in the case of mass risks and large risks? - Please indicate the types of insurance products for which you consider cross-border demand exists or is likely to develop in the future. 3 SCENARIOS FOR CROSS-BORDER DEMAND The below described scenarios are an attempt to map out the main types of demand for insurance products in a cross-border context within the EU. The illustrations are based on theoretical assumptions. The examples are based on real cases, which have been brought to the attention of the Commission. 3.1 SCENARIOS FOR CONSUMER DEMAND SCENARIO 1: PURCHASING NEW INSURANCE PRODUCTS FROM ANOTHER EU COUNTRY This type of demand is likely to come from expatriate communities within the EU. In 2009, an estimated 11.7 million EU citizens were living in another Member State. The data indicates that many more Europeans might exercise this right at some point in their lives: While a majority (54%) of citizens polled in 2009 were not interested or saw too many obstacles to working in another Member State, close to one in five Europeans (17%) did envisage working abroad in the future. 22 Citizens who move to another EU 20 Retail Insurance Market Study, Final Report by Europe Economics, , p. 6, p Gesamtverband der deutschen Versicherungswirtschaft e.v., Globalisierung der Erstversicherungsmärkte: Stand und Entwicklungstenden-zen am deutschen Markt (2010), p. 7, 28, EFSIR (2010), p. 33, Beckmann/Eppendorfer/Neimke, Financial integration within the European Union: Towards a single market for insurance, p. 3, ftp://ftp.zew.de/pub/zew-docs/div/beckmann.pdf 22 EU Citizenship Report 2010 Dismantling the obstacles to EU citizens rights COM(2010) 603 final, , p.14. 6

7 country may still be more familiar with the insurance system in their country of origin and thus may prefer to purchase new insurance products there, as illustrated below. Illustration: A Dutch citizen may purchase a house in Germany, but continue to work and be closely connected with the Netherlands. This citizen may prefer to take out insurance for the new house from a Dutch insurer operating in Germany. However, the Dutch insurer may not be willing to insure this property in Germany, as it may be too complex to adapt to the requirements of applicable German law SCENARIO 2: USING THE SAME INSURANCE PRODUCT IN ANOTHER EU COUNTRY IN CASE OF LONG TERM RESIDENCE Citizens who move to other EU countries for longer periods may have an interest in retaining insurance products they had purchased in the country of their former residence. An incentive to do so would be the possibility to preserve bonuses or more favourable terms obtained during the contractual relationship with the previous insurer. An example of such benefits is the no-claims bonus accumulated over the years under the "bonus-malus system" used in third party motor liability insurance. The consumer may lose any benefits earned under this system provided he or she is not able to switch to another provider under the same terms. Furthermore, even though European legislation 23 guarantees the policy holder the right to obtain a statement of the claims history over a period of at least the previous five years of the contractual relationship, this statement may not be useful if insurers in the other country do not apply a similar system of bonus points. However, even if the consumer is able to switch, he or she may wish to keep the old policy if intending to return to the previous country in the foreseeable future. Provided the consumer terminated the contract with the insurer in the previous country, he/she may be disadvantaged upon return. Some insurers may discontinue a customer's no claims bonus if the customer has terminated the contract with the company. Example: A German citizen who moved to live in Italy was forced to sign a new insurance contract, after registering her car in Italy. However, the citizen had big difficulties in finding an insurance company that was willing to maintain her bonus points on the same terms. After long discussions, the citizen had to put up with the fact that only one Italian insurance company, the "correspondent" of her German insurer, would offer a contract under comparable terms. However, the contract provided that the policy holder would lose her bonus points if she changed company before a certain deadline. 23 Article 16 of the Directive 2009/103/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, , OJ L 263, 07/10/2009 P

8 Furthermore, a consumer who may have the intention to live in another country in the long-term may have an interest in insurance products, which could be used on a cross-border basis, as illustrated below. Illustration: An employee who has worked in different EU countries during her or his career may be interested in a pension product, which will ensure that the accumulated pension rights in different countries remain valid and are recognised in any EU Member State. This is particularly important for citizens who may retire in another EU country SCENARIO 3: USING AN INSURANCE PRODUCT ABROAD IN ONE OR MULTIPLE COUNTRIES IN CASE OF SHORT TERM TRAVEL A large proportion of Europeans travel to other EU countries for short term trips, in particular as tourists. For instance out of the Europeans who went on holiday in 2011, 44% travelled to another EU country and 22% outside of the EU 24. These consumers are likely to look for insurance products with international coverage. Travel insurance is an obvious example of a product which may require cross-border coverage. Illustration: 57% of Europeans organise their holidays themselves, taking advantage of the internet and the growth of low-cost air carriers. 25 Consumers are often offered the option of purchasing travel insurance, especially online. Where consumers are planning a trip abroad, the travel insurance they purchase should also contain cross-border coverage. 3.2 SCENARIOS FOR BUSINESS DEMAND SCENARIO 4: PROBLEMS RELATING TO MANDATORY INSURANCE COVERAGE FOR SERVICE PROVIDERS. THE EXAMPLE OF PROFESSIONAL LIABILITY INSURANCE. Businesses providing services across borders may be legally required to purchase insurance with coverage valid in the Member States where they supply the service. Such requirements have manifested themselves particularly in the area of professional liability insurance. The monitoring of the implementation of the Service Directive revealed that requirements for insurance coverage set by the Member States of destination may place a burden or even hinder the cross-border activities of foreign services providers. 26 Evidence of various problems has been collected by the Commission in this context. 24 Flash Eurobarometer 334, Attitudes of Europeans Towards Tourism, Flash Eurobarometer 328, Attitudes of Europeans Towards Tourism, Communication From The Commission to The European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the Services Directive. A partnership for new growth in services , COM(2012) 261 final of , p. 5. 8

9 - Availability: One of the major problems is the access to mandatory insurance coverage for service providers established in another Member State. On the one hand, professional liability insurance products with cross-border coverage are rare, as insurers in the home country reportedly often refuse to extend coverage across-borders, even temporarily, especially when the limit of indemnity that has to paid under the insurance policy differs from one country to another On the other hand, pan-european insurance products seem to be unavailable. Finally, insurers in the country of destination may refuse to offer insurance coverage to foreign service providers. Consequently, a service provider may not be able to obtain insurance cover for temporary cross-border service provision. In particular for activities where a compulsory insurance is required, the absence of insurance coverage would hinder the exercise of the service activity as such. As illustrated in the example below, insurance obligations in the construction have repeatedly been singled out in this context. Example: 'Assurance responsabilité civile décennale'. This is a mandatory French insurance, which is compulsory for companies constructing buildings in France. Problems have been reported in the access to this insurance by service providers from other EU countries. The problem has been particularly felt by German SMEs in the construction sector operating in France from across the border. Reportedly, French insurers often refused to provide coverage to incoming German businesses, while German insurers refused to do so in case the activity was carried out in another country Affordability: Service providers sometimes succeed in obtaining an offer from insurance providers in the country of destination. However, such policies may come at a prohibitive cost, especially for SMEs. In particular, the cost of the professional liability insurance cover offered by local insurers may often exceed the margin of profit of the project for which the foreign services provider needs insurance. Thus, many service providers may be dissuaded and could give up the project instead. Illustration: The French legislation sets a mandatory requirement for professional liability insurance for midwives. The French case-law, which has followed the principle of strict liability, foresees a possibility for lifetime damages for a child born with a disability due to a medical mistake. Due to the higher risk for midwives practising in France, individual professional liability coverage offered by French insurers is offered at a relatively high cost. Belgian premiums for this type of insurance reportedly may account for as little as 1/10 of the cost of French premiums. Therefore, insurance cover in France is unaffordable to Belgian midwives. Some are thus dissuaded from providing services in France, while others may operate illegally without the required coverage. 27 Report published by Euro-Info-Consommateurs: Les laissés pour compte de la libre circulation des services et des marchandises dans le secteur de la construction: La situation franco-allemande,

10 - Possible duplications of requirements for mandatory insurance coverage: Art. 23 of the Services Directive 28 provides that professional liability insurance cover taken out in the service provider's country of origin should be recognised by the host Member State where the service is performed. This rules aims to avoid a duplication of insurance requirements. However, the host Member State may have difficulties in determining to what extent the professional liability insurance taken out by the service provider in his Member State of origin is equivalent in its provisions and scope to the cover mandatorily required by the rules of the host country. 29 Thus, the users may incur additional costs due to duplication of requirements. - Policy holder's knowledge: many business policy holders who provide cross-border services may not know that the professional liability insurance contract with their national insurer does not automatically cover activities they perform in other Member States. Due to the lack of knowledge some service providers are likely to operate on a cross-border basis without insurance coverage SCENARIO 5: DEMAND FOR SOPHISTICATED PRODUCTS WHICH ARE NOT AVAILABLE IN ALL COUNTRIES Business needs for insurance are likely to be more sophisticated compared to the average consumer needs. Therefore, businesses are likely to look for more sophisticated, complex or innovative insurance products, which may not always be available in their domestic market. The state of development of insurance markets in various EU countries differs. This may be linked for instance to the uneven levels of insurance penetration into different national markets. Insurance penetration, expressed as gross written premiums as a percentage of GDP, is a commonly accepted indicator of insurance activity. 30 Notably, the levels of insurance penetration differ substantially between EU countries. While the percentage is between 8-13% respectively in Belgium, Denmark, the Netherlands, France and the UK, on the other end of the scale are Romania, Latvia, Estonia and Bulgaria with an average of about 2% insurance penetration. 31 One could assume that the more products in a given business class are available at a market, the higher the competition, the greater the business innovation and the wider the choice. Conversely, in markets with low levels of insurance penetration in the respective classes also the choice is likely to be limited. Thus, businesses may be more likely to look into the offers in other EU countries in the search for suitable 28 Directive 2006/123/EC of the European Parliament and of the Council on Services in the Internal Market, 12 December 2006, OJ L 376/36, CEA, Note on the Proposal for a Directive to amend Directive 2005/36/EC (2012), p. 2. CEA, Note on the Proposal for a directive on services in the Internal Market (2004), p. 10 = CCBE, Conference held on Professional Indemnity Insurance for European lawyers (2004), p. 8, 12 = 30 Insurance Europe, European Insurance in Figures, p.17, January Insurance Europe: European Insurance in Figures, p.17, January

11 insurance products.. An example is the growing need for insurance of innovative eco-technologies in the area of sustainable construction, analysed in the framework of the ELIOS project, as illustrated below 32 Illustration: European requirements, such as the Directive on energy performance of buildings (Directive 2002/91/EC), require an increase in energy efficiency of buildings in the EU as part of the overall EU strategy on sustainable energy consumption. These rules have encouraged innovations in the construction sector, such as new eco-technologies for sustainable energy consumption. However, the development of such innovations is dependent on guarantees for long-term performance, which are often a prerequisite for investments in sustainable buildings. Insurance products have been singled out as an important factor to give an impetus to the development of eco-technologies. Insurance products could provide a form of long-term guarantee of performance and reassure investors. However, due to the lack of statistics on the long term performance of new technologies, as well as the risks associated with their implementation and testing in practice, many insurers are reluctant to insure such risks. Thus, the respective insurance products are still scarce. Thus, construction companies implementing innovative technologies may have to look for suitable insurance products from providers in other EU countries, where such products have been developed SCENARIO 6: PROFESSIONAL USERS WITH TEMPORARY ACTIVITIES IN MULTIPLE EU COUNTRIES Some businesses may regularly or occasionally engage in temporary activities of a cross-border nature. Thus, they may wish to insure all their activities with an insurer from the country where they are established, while asking in addition for a cover of their activities abroad. For instance, an architect may wish to provide temporary services in another country under the terms of its policy for professional liability insurance. Another typical example could be car rental services. Example: A car rental company based in Belgium rents out cars which can be used in 16 European countries. The car rental company has taken out civil liability insurance for its cars on the basis of the Belgian law. In addition, the renter may subscribe to additional individual accident cover. The territorial insurance coverage of the cars is extended and valid also on a cross-border basis with the geographical limitations to the use applied by the car rental company SCENARIO 7: PROFESSIONAL USERS WITH PERMANENT ACTIVITIES AND OPERATIONS IN MULTIPLE COUNTRIES International companies and organisations may have an interest in insuring with the same insurer their activities, property or employees in various countries. This could be both more efficient in terms of 32 Final report by the consortium formed by Centre d Etudes d Assurances and Centre Scientifique et Technique du Bâtiment: Liability and insurance regimes in the construction sector: national schemes and guidelines to stimulate innovation and sustainability, see follow-up project at: 11

12 management and more cost-effective. If a business would not need to comply with different rules in each country, it could develop economies of scale and optimise the management of its operations. Furthermore, a company could benefit from a stronger bargaining power and negotiate better conditions for the insurance policy, when it negotiates a contract for a higher value. Example: The European Commission operates a Joint Sickness Insurance Scheme, which covers its employees in multiple geographic locations. Even though this is a type of a mandatory social security health insurance scheme, it has global coverage subject to certain ceilings and limitations. Therefore, claims within this framework can be filed for expenses which have been incurred in multiple locations. Illustration: In relation to pensions, a company which has employees in various countries in the EU, may be interested in providing a similar pension arrangement for all its employees wherever they are located in Europe. Amongst other benefits, this solution could also facilitate the cross-border mobility of employees. 33 Illustration: A company with branches in several EU countries may prefer to insure its property with a single insurance provider, which could offer insurance on the same or similar terms for all the property, as opposed to negotiating with different insurers in each country. QUESTIONS: - Do you agree with these scenarios for cross-border demand? Are there other scenarios, which have not been mentioned? - If you agree, please indicate which scenarios in your view have a greater relative importance and potential. Please consider the current situation and the prospects for future development. - If you disagree with these scenarios, please explain why. Please indicate which scenarios you consider irrelevant. 4 INSURANCE PRODUCTS WHICH COULD ADDRESS THE NEEDS IN VARIOUS SCENARIOS FOR CROSS-BORDER DEMAND The above scenarios describe various types of needs with a cross-border element. The below described types of insurance products could respond to different types of needs. 33 European Financial Services Round Table: Pan-European Pension Plans, Deepening the Concept, December 2005, p

13 4.1 INSURANCE PRODUCTS WITH NO SPECIFIC CROSS-BORDER FEATURES (SCENARIOS 1 AND 5) Customers may have an interest in purchasing insurance products from other countries, even if these products do not have any specific cross-border characteristics. The result would be that a product designed and used in one EU country could also be offered by the provider to another EU country without adaptations. Customers may be willing to look for offers abroad for instance when they need a sophisticated product, which is not available in all countries or may not be available on the terms the user would prefer. This is likely to happen in particular in scenario 5 (business needs for sophisticated products). Businesses may be attracted by products which they find convenient or suitable to their needs, while well informed consumers may be looking for products with a higher level of protection. However, the use of a product across borders without any adaptations is likely to be possible for large risks, where the rules of international private law allow a free choice of law. (The analysis of the legal framework, including the rules on private international law will be discussed in a separate paper on the existing EU legal framework). Even though this should at least theoretically also be relevant for mass risks (e.g. scenario 2), it is unlikely due to the specific rules of private international law. The free choice of law for mass risks is restricted to only several options which providers are allowed to choose from. 4.2 INSURANCE PRODUCTS WITH SPECIFIC CROSS-BORDER FEATURES (SCENARIOS 2, 3, 4, 6 AND 7) PRODUCTS WITH CROSS-BORDER COVERAGE (SCENARIOS 2, 3, 4 AND 6) There is evidence of certain products with cross-border coverage. These are products normally designed for the local markets, but offering cross-border coverage for certain situations. The most widely used product is motor liability insurance, where the same coverage provisions could be applied irrespective whether the accident takes place in the "home" member state or another EU country. In relation to home insurance, some insurers offer additional holiday homes cover to customers with a basic home cover. However, there are various limitations to the development of such products, for instance as regards the duration and the geographical scope of coverage. The cross-border coverage of third party motor liability insurance may be limited to a few weeks, in view of the average duration of annual holidays. (e.g. 21 days, sufficient for a holiday or a longer business trip). 34 The coverage of holiday homes is likely to be limited to selected countries only. For instance insurers in the UK were found to offer coverage for France, Spain, Portugal and Ireland, which were the most common countries for holiday homes of UK citizens Retail Insurance Market Study, Final Report by Europe Economics, , p. 6, p Retail Insurance Market Study, Final Report by Europe Economics, , p. 6, p

14 Customers may have an interest in purchasing products with specific cross-border coverage, when they move across-borders for a specific period of time. Consumer could need temporary insurance coverage in case of long or short term travel (scenarios 2 and 3), while businesses could need cross-border coverage when providing services in another EU country (scenario 4 and 6). PAN-EUROPEAN INSURANCE PRODUCTS WHICH COULD BE USED ON A PAN-EUROPEAN BASIS (SCENARIOS 2, 4, AND 7). "Pan-European products" have been referred to as products sold or designed on a pan-european basis. 36 Such products could, be used by customers across borders without territorial limitations within the scope of their coverage. Such products would suit the needs in particular of citizens or businesses, which intend to be mobile on a cross-border basis in the long run, for instance by working in different countries (scenarios 2 and 7). In addition, companies with large scale operations across the EU may be interested in insuring their employees and activities on the basis of the same terms (scenario 7). In the area of non-life insurance, a recent study 37 found no evidence of pan-european insurance products. Regulatory obstacles were identified as a key barrier to the development of such products. Differences in contract laws were singled out in this context. Since national requirements differed, designing such products would necessitate compliance with the highest common denominator. This in turn, would increase the price and make the products non-competitive. For instance, pan-european motor third party liability insurance would need to have an unlimited cover, while buildings insurance would need to have natural catastrophe cover. 38 The costs were further increased by the need to invest in local market knowledge and infrastructure. 39 In the area of life insurance, previously the concept of pan-european Pension Plans had been proposed by industry stakeholders. 40 The concept envisaged that such products would be portable and would offer additional retirement savings in the form of pension solutions available throughout the EU. The industry representatives who developed the concept considered that mobile groups of citizens, such as students on exchange programmes, mobile workers, professionals working across borders and retirees settling in another country, would benefit in particular. They would be able to continue with a single pension arrangement irrespective of the countries they reside in at different points in time. 41 This concept, developed by industry stakeholders, was based on the assumption that Member States would agree to a single set of autonomous rules, which would apply uniformly throughout the EU. The specific product 36 Retail Insurance Market Study, Final Report by Europe Economics, , p. 6, p Retail Insurance Market Study, Final Report by Europe Economics, Retail Insurance Market Study, Final Report by Europe Economics, , p. 6, p Retail Insurance Market Study, Final Report by Europe Economics, , p. 6, p European Financial Services Round Table, Pan-European Pension Plans, Deepening the concept, December 2005; Pan-European Pension Plans: From Concept to Action, June European Financial Services Round Table, Pan-European Pension Plans, Deepening the concept, December 2005, p

15 offerings on the basis of this set of rules would be decided by financial providers. 42 Contract law and tax law differences were identified as key obstacles to the development of such products. 43 On the other hand, other stakeholders expressed concerns on the up-take of contracts based on an optional regime, due to concerns about the level of consumer protection it would offer compared to national laws. QUESTIONS: - Do you agree that the above described categories of products could meet the needs of cross-border demand? Are you aware of existing products in any of the above described three categories? Are there other categories of products which have not been mentioned? - Are you aware of insurance products which can be distributed across borders without adaptations? Please consider both large risks and mass risks. - For which category of product do you see a greater potential for future cross-border development and distribution? - Which scenarios would such products serve? What products classes could they address? 5 POTENTIAL OBSTACLES TO CROSS-BORDER TRADE AND THE ROLE OF INSURANCE CONTRACT LAW The relatively low level of cross-border trade in insurance could be due to different reasons. On the one hand, there are a number of companies, especially SMEs, which may not be interested in cross-border activity at all. Amongst others, given that a majority of consumers (and possibly small firms) prefer to buy insurance in their country, providers may be willing to focus on their own domestic market. On the other hand, insurance providers who may be interested in developing cross-border operations would have to deal with a wide range of practical factors. For instance, they would need to consider local distribution preferences, language and culture differences 44, costs for setting up a distribution network or building a brand 45, use of underwriting models to price a product 46 and cross-border claims management. 47 In addition, compliance with the applicable regulatory requirements would have to be ensured. Relevant areas of law to insurance activity are rules protecting overriding public interests, known as the "general 42 European Financial Services Round Table, Pan-European Pension Plans, Deepening the concept, December 2005, p European Financial Services Round Table, Pan-European Pension Plans, Deepening the concept, December 2005, p European Financial Stability and Integration Report 2011, p Retail Insurance Market Study, Final Report by Europe Economics, , p Retail Insurance Market Study, Final Report by Europe Economics, , p Retail Insurance Market Study, Final Report by Europe Economics, , p

16 good rules" 48, insurance contract laws, tax and social security laws 49, rules on non-contractual liability and others. All these factors are likely to make cross-border activity more complex and costly. The impact of practical factors is likely to affect cross-border activity both in the form of establishment and service provision. However, their relative importance may vary. For instance, companies without a permanent presence in a country may find it more difficult to maintain a good market understanding over time, as local markets may require continuous monitoring on the ground to respond to dynamic developments. Furthermore, companies providing services may find it more difficult to set up a crossborder claims management system in another country, as this is likely to be more complex, expensive and potentially lead to an increased risk. 50 On the other hand, companies establishing are more affected by the costs of setting up a local distribution network. The costs of setting up a branch or subsidiary and developing a local brand may render establishment economically unattractive. 51 Such costs are likely to weigh particularly heavy on SME providers, as they would constitute a greater share of their annual turnover. The impact of regulatory factors is relevant to cross-border activity both in the form of establishment and provision of services. The relative importance of different regulatory requirements may vary depending on the type of insurance sold. For instance, tax regulations play a greater role in the case of life insurance, while rules on non-contractual liability play a key role in the case of third party liability motor insurance. However, compliance with the applicable laws needs to be ensured in any case. Differences in insurance contract laws are likely to play an important role for all types of insurance products both in the case of establishment and cross-border provision of services. The specificity in the area of insurance is that the contract for an insurance policy constitutes the product itself. Thus the applicable contract law rules need to be taken into account both in the processes of product development and distribution. Companies engaging in cross-border trade in insurance may have to deal with multiple laws, depending on the applicable contract laws and the countries they operate in. This may be one of the reasons why contract law differences have been singled out as an important regulatory obstacle Commission Interpretative Communication "Freedom to provide services and the general good in the insurance sector" (2000/C 43/03). 49 European Financial Stability and Integration Report, p Retail Insurance Market Study, Final Report by Europe Economics, , p. 33: "An integral part of the management of moral hazard by many insurers related to having an approved list of garages or builders through which remedial work is conducted. Market intelligence gained through long experience is required for such endeavours on the other hand, in their absence, the perceived risk of claim inflation or even outright fraud is likely to be higher." 51 Retail Insurance Market Study, Final Report by Europe Economics, , p. 32: "Without the necessary data to populate these models, the insurer either has to acquire the necessary data or re-design its models". 52 Retail Insurance Market Study, Final Report by Europe Economics, , p. 31; See also CEA Position Paper: "CEA views on the European Commission's Green Paper on policy options for progress towards an EU contract law for consumers and businesses", p

17 While this paper acknowledges the existence of various factors for cross-border trade and that their impacts and relative importance may vary, it focuses on the impact of contract law differences. QUESTIONS: - Do you consider that the above regulatory factors make cross-border activity in insurance more complex and costly? Please explain. - Do you consider differences in insurance contract laws an important factor for the decision to start or expand cross-border activity in insurance? IMPACTS OF DIFFERENCES IN INSURANCE CONTRACT LAWS Differences in insurance contract laws may pose difficulties to the cross-border design and distribution of insurance products. For instance, the provider (insurance undertaking and possibly an intermediary) would first have to find out which contract laws may be applied to the contract. If the law of another country applies, it would have to be analysed. This may be a complex and costly legal exercise, which could require the involvement of lawyers from other Member States or international law firms. Furthermore, ensuring compliance with the requirements of another contract law may require adaptations of the insurance policy. Such adaptations could entail changes to the product characteristics and necessitate a redesign of the product. Therefore, differences in insurance contract law could affect not only the ease of distribution across borders, but also the product design and production costs. Thus, the provider would also have to develop different marketing strategies for each modified product. Moreover, it may not even be possible to distribute some products to other EU countries provided their characteristics cannot be reconciled with local requirements. For instance, some insurers considered that there was a lack of integration of product development for life insurance products and that it reflected inter alia "differences in ( ) the local 'rules' concerning such products" 53. Nevertheless, some positive developments were registered, for instance in relation to the cross-border provision of variable 52 European Financial Stability and Integration Report, 2011, p European Financial Stability and Integration Report, 2011, p

18 annuities 54 which fall within the category of life insurance products. 55 Moreover, there seems to be long term potential for growth in this area: The demand for certain types of life insurance products is expected to increase across many EU countries simultaneously 56 given that governments would reduce their pension provisions under fiscal pressures. However, a recent report by EIOPA found that the cross-border distribution of variable annuities was limited geographically. Namely, in some countries there seemed to be an incompatibility between some dispositions of insurance contract law and the way variable annuities work. These discrepancies made it hard for companies to describe the guarantees in a way which complied with regulations and raised the risk that the contract might be considered unlawful by a court. 57 As explained by insurance sector representatives: "Today's difference in national laws means that insurers willing to provide services across borders still need to tailor the wordings of their policies to meet local requirements and this entails significant costs and legal uncertainty." 58 From an intermediary's perspective the need to deal potentially with 27 different legal systems in the EU is considered problematic due to the additional transaction costs and liability risks it generates. 59 The differences in insurance contract laws are therefore likely to affect both companies operating via the freedom of establishment and via free provision of services. Ensuring compliance with different insurance contract laws would require additional time and costs for research of different national laws for companies providing insurance services. Companies which establish in other EU countries are likely to be better positioned, as the costs for compliance with another national law would be part of their cost of doing business in that country. However, the need to adapt products to different national requirements could entail adaptations of the business strategy. Companies may not be able to offer the same type of product in different markets and may not be able to develop economies of scale. QUESTIONS: - What is the nature of difficulties linked to the differences in contract laws (e.g. legal costs and product adaptations)? Please explain. 54 EIOPA, Report on Good Practices for Disclosure and Selling of Variable Annuities (2012), p. 6. https://eiopa.europa.eu/fileadmin/tx_dam/files/consultations/consultationpapers/cp07-11/eiopa-cp _good_practices_report_for_publication.pdf Variable annuities are unit-linked insurance contracts with investment guarantees provided by the insurer which, in exchange for single or regular premiums, allow the policy holder to benefit from the upside of the unit, but be partially or totally protected when the unit loses value. 55 European Financial Stability and Integration Report, 2011, p. 90: there are indications that there was a growing trend in cross-border distribution of certain types of life insurance products, such as variable annuities, in particular developed in the UK. 56 European Financial Stability and Integration Report, 2011, p EIOPA, Report on Variable Annuities, (EIOPA-11/031), p CEA Position Paper: "CEA views on the Euorpean Commission's Green Paper on policy options for progress towards an EU contract law for consumers and buisnesses", p Bipar's response to the Commission's Consultation on the Green Paper on Policy Options towards a European Contract Law for Consumers and Businesses, p

19 - What is the impact of differences in contract laws on the decision on the form of cross-border activity, i.e. establishment or provision of services? - Does the content of the rules (e.g. the level of policy holder protection) play a role for the decision whether to offer or not to offer products in a given country? - How do differences in contract laws affect the design and distribution of insurance products? - According to your observations, is it possible to offer products on a cross-border basis without contractual adaptations to applicable laws? Please consider particularly mass risks. 19

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