The new Insurance Act. Hugo Keulers & Sandra Lodewijckx

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1 The new Insurance Act Hugo Keulers & Sandra Lodewijckx

2 Overview 1. Context 2. Scope of application 3. New provisions 4. Entry into force 2

3 1. Context New bipolar model National Bank (NBB) / Financial Services and Markets Authority (FSMA) Quadruple background: 1) Implementation Solvency II Directive into Belgian law 2) Simplification of existing legislation concerning insurance consumer protection through codification of all relevant provisions in one single act 3) Clarification of existing division of competences between the NBB and the FSMA 4) Expansion of protection of the insurance customer in a few specific fields «FSMA-act» 3

4 1. Context The Act largely codifies existing legislation: Part of the provisions of the Insurance Supervision Act of 1975 Most provisions of the Act on Non-Marine Insurance Contracts of 25 June 1992 The provisions of the Act of 11 June 1874 (which is completely abolished) The provisions of the Act of 27 March 1995 on Insurance and Reinsurance intermediation and distribution (which is also completely abolished) 4

5 1. Context Where the wording was changed it mostly concerns non-material changes, intended to create a more comprehensible and coherent whole. One of the most important material changes concerns the expansion of the possibilities for the FSMA to take measures against both insurers and (re)insurance intermediaries. 5

6 2. Scope of Application Broad general scope Belgian insurers / intermediaries Or pursue insurance activities in Belgium Under particular modalities : mutual insurance associations New definition «insurer» Class-26 insurances 6

7 2. Scope of Application Broad general scope Not applicable to: Societies for mutual assistance (MOB s) but applicable for their insurance activities Health Insurance Funds Pension funds Undertakings that pursue assistance activities (under certain circumstances) 7

8 2. Scope of Application Broad general scope Exemption by Royal Decree for insurers exercising the following insurance activities (art. 4, 10): Transport insurance or industrial or commercial risks Particular or exceptional risks, specified by Royal Decree Reinsurance and coinsurance 8

9 Interaction with other legislation Provisions relating to the protection of insurance customers in other implementing acts (Supervision Act or Life Insurance Royal Decree) remain the legal basis as long as they are not abolished or adapted. In case of contradiction with the Insurance Act, the provisions of the Insurance Act will prevail (Art. 348, 2). 9

10 3. New provisions a) Provisions from the Supervision Act b) Provisions from the Act on non-marine insurance contracts c) Provisions from the Act of 1874 d) Provisions from the Intermediation Act 10

11 a) Provisions from the Supervision Act 11

12 Consequences of insurance contracts entered into by a non-authorised insurer (art. 8) Reiterates art. 3, 3 of the Supervision Act: nullity. Insurer is bound to its obligations if policyholder acted in good faith New Act: insurer has to indemnify the policyholder, the insured or the beneficiary for the damage suffered as a consequence of the nullity of the insurance contract Damage is irrefutably presumed to be a consequence of the illegal conclusion of the insurance contract 12

13 Electronic transcripts (art. 14) Applicable to insurers Execution art. 71 Act 24 December 1996 Photographic, microphotographic, magnetic, electronic or optical transcripts of documents have the same probative value as the originals of which they, subject to contrary evidence, are presumed to be a transcript if they were provided by the insurer. Royal Decree for the conditions and modalities of drawing up such transcripts 13

14 New: Life insurance linked to investment funds (art ) Creation of a level playing field, a.o. with UCITS, with regard to kinds of assets or reference values to which the funds may be linked If the policyholder is not a professional client, the insurance may only be linked to certain assets 14

15 Life insurance linked to investment funds Fund to which insurance contracts are linked may invest more than 20% of the value of its assets in deposits with one and the same credit institution, or in bonds and other fixed income financial instruments emitted by one and the same credit institution. It is permitted that a fund, to which insurance contracts are linked, invests more than 20% of its assets in financial instruments emitted or guaranteed by certain authorities. In these cases, there shall not be any mention of a capital guarantee and this characteristic must be explicitly mentioned in the precontractual information and in advertisements. 15

16 Life insurance linked to investment funds Application of the investment rules and limits can be assessed on a «look through» basis. Commissioner of the insurer should annually certify that the investment rules and limits have been observed, that the organisational structure of the fund does not harm the interests of the policyholders and does not lead to higher costs. 16

17 Life insurance linked to investment funds New provisions only apply to insurance contracts concluded after the entry into force of the Act. To a non-professional potential insurance taker, existing products may only be offered in new agreements insofar as they comply with the new rules. For insurance contracts concluded before the entry into force of the new Act, the new rules are in principle not applicable unless one of the following changes has been made in the contract: The existing insurance contract is linked to one or more new investment funds; or The conditions concerning (minimum) return are changed; or The management rules of the fund are modified. 17

18 Mandatory insurance (art ) Insurance contracts which are mandatory according to Belgian law are governed by Belgian law. Insurers who offer mandatory non-life insurance must notify the FSMA thereof. The FSMA can require that insurers provide the FSMA or the NBB with their general and specific terms and conditions before such terms and conditions are used. They must at least be drafted in the language which is required by law or decree. 18

19 Advertising (art. 28) Any document which is diffused by insurers or intermediaries to the general public must contain certain mentions. Royal Decree on the contents of messages, advertising and other documents directed at commercialisation Royal Decree of 25 April 2014 concerning certain information duties in the commercialisation of financial products towards non-professional clients FSMA Regulation of 25 April 2014 concerning the risk label Both enter into force on 12 June 2015 Insurers and insurance intermediaries must keep a record of their advertisements during the prescription period but also during the two years following the expiry of the final contract to which the advertisement related. 19

20 Information duties (art ) Rules from art. 15 Supervision Act Before the conclusion of the contract / During the execution Life / Non-life Preservation of the existing distinction between life and non-life Life: Specific information on the fiscal treatment of the payments at the final maturity date and in case of early surrender (provisions from the Life Insurance Royal Decree) Provisions concerning profit sharing 20

21 New: Segmentation (art ) Purpose: protection of the policyholder, the insured or the beneficiary against arbitrary differentiation Measure of public policy In addition to the rules which were already applicable on the basis of Belgian anti-discrimination legislation, the Act introduces a particular duty of transparency and a duty to justify any segmentation in the types of insurance contract specified in the Act Only when the policyholder is a consumer 21

22 Segmentation «Basic Insurance Contracts» (art. 43) = Mandatory third party liability insurance Fire insurance simple risks General liability insurance Legal expenses Individual life insurance Health insurance Royal Decree can expand this list to other insurance contracts 22

23 Segmentation For basic insurance contracts: Any distinction (based on whichever criterion, and not only the criteria mentioned in anti-discrimination legislation) should, with regard to acceptance, pricing and coverage, be objectively justified by a legitimate purpose and the means by which this purpose is achieved should be adequate and necessary Principal goal: more transparency concerning the criteria used for segmentation and a requirement to give reasons for segmentation 23

24 Segmentation For basic insurances: Communication: On the insurer s website In the insurance proposal Change of the risk/termination Refusal Royal Decree can indicate, if necessary per insurance type, which criteria of segmentation may or may not be used 24

25 Profit sharing Legal framework concerning transparency, information and advertising in relation to profit Mention in advertising Contractual or arbitrary profit sharing 25

26 Profit sharing If mentioned in advertisements: Establish a profit sharing plan Mandatory mentions 26

27 Remedies recovery measures Autonomous competence of the FSMA to intervene against Belgian insurers and non-eea insurers and to determine a deadline by which any infringement on the provisions of the new Insurance Act must be remedied, and to take recovery measures in case of non compliance within the deadline. 27

28 Recovery measures Possibility for the FSMA to suspend or to prohibit the commercialisation of insurance contracts in certain cases, for as long as the relevant statutory or regulatory provisions have not been complied with. The concerned insurer must announce the suspension of the commercialisation by the FSMA Suspension can be limited FSMA can make its decision public 28

29 b) Provisions from the Act on non-marine insurance contracts («the 1992 Act») 29

30 Right to withdraw (art. 57 // art. 4 of the 1992 Act) Possibility to terminate the contract: Life and capitalisation insurance: Within 30 days In all cases Non-Life insurance Within14 days For contracts which were concluded by means of an insurance application or a presigned policy 30

31 Medical information (art. 61 // art. 95 of the 1992 Act) This provision has been moved to the chapter containing provisions relating to all types of insurance contracts because it can have a broader scope of application than just persons insurance Consequence: no more contestation about the applicability of this article whenever the state of health is an element in the conclusion of an insurance contract or when dealing with a claim or loss, whether it is a persons insurance or a property or liability insurance 31

32 New: Execution of the contract (art. 68) Specific regulation in which all sums which were paid on the basis of an insurance contract to minors or others who are (declared) incompetent to handle their own affairs, need to be paid on a frozen account. 32

33 Payment reminder (art. 70 // art. 15 of the 1992 Act) Formal notice of default must contain a few particulars New: mention also the amount of the premiums that are still due, together with all elements enabling to determine the exact time on which the suspension or cancellation of the contract will take effect 33

34 Effect of the suspension or cancellation (art. 71 // art. 16 of the 1992 Act) Old Act: payment of the outstanding premiums and interests in order to put an end to the suspension of coverage New Act: payment of the outstanding premiums suffices to put an end to the suspension of coverage 34

35 Aggravation of the risk (art. 81 // art. 26 of the 1992 Act) Small adjustment to take new provisions on segmentation into account Motivation of changes to the insurance contract 35

36 Duration and end of the agreement (art. 85 // art. 30 of the 1992 Act) The maximum duration of one year will, besides health and life insurance, also not apply to capitalisation operations (class 26) 36

37 Cancellation after loss occurrence (art. 86 // art. 31 of the 1992 Act) Old Act: Cancellation takes effect no sooner than three months after formal notice was given. New Act: three months from the day on which formal notice was given, or the day following the date of the receipt or the day following the postal date in case the notice was sent by registered mail. New Act: possibility of cancellation after the payment period has lapsed in case fraud was discovered after payment has already been made. 37

38 Liability insurance right of recourse (art. 152 // art. 88 of the 1992 Act) Right of recourse is limited to the personal share of the insured in the liability. 38

39 Consequences of divorce on life insurance contracts (art. 191 et seq) Provisions were adapted to take the Act of 27 April 2007 concerning divorce reform into account 39

40 c) Provisions from the Act of

41 Insurance contracts other than non-marine insurance contracts Limited changes Art. 246 // art. 22 of the Act 1874 Art. 256 // art. 32 of the Act

42 d) Provisions from the Intermediation Act 42

43 Insurance Intermediaries (art. 257 et seq) Act on Insurance Intermediaries is entirely transposed. Intermediaries must refrain from taking part in the promotion, conclusion and execution of insurance contracts which are clearly in violation of Belgian law. 43

44 4. Entry into Force Act of 4 April 2014, published on 30 April 2014 Entry into force: 1 st November 2014 Insurers need to formally adapt their insurance contracts and other insurance documents at the latest 13 months (= 1 st May 2015) after publication Until that date, the existing insurance contracts do not need to be formally in accordance with the legal provisions. They are however supposed to refer to the corresponding provisions in the Insurance Act. 44

45 Questions? Lydian, November This presentation only contains general information and does not constitute legal advice. 45

46 Contact LYDIAN Avenue du Port 86c b Brussels Tel.: Fax: Hugo Keulers Partner Dir.: Sandra Lodewijckx Partner Dir.:

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