Directive 2002/83/EC of the European Parliament and of the CouncilShow full title

TITLE I DEFINITIONS AND SCOPE

Article 1 Definitions

1. For the purposes of this Directive:

(a) ‘assurance undertaking’ shall mean an undertaking which has received official authorisation in accordance with Article 4;

(b) ‘branch’ shall mean an agency or branch of an assurance undertaking;

Any permanent presence of an undertaking in the territory of a Member State shall be treated in the same way as an agency or branch, even if that presence does not take the form of a branch or agency, but consists merely of an office managed by the undertaking's own staff or by a person who is independent but has permanent authority to act for the undertaking as an agency would;

(c) ‘establishment’ shall mean the head office, an agency or a branch of an undertaking;

(d) ‘commitment’ shall mean a commitment represented by one of the kinds of insurance or operations referred to in Article 2;

(e) ‘home Member State’ shall mean the Member State in which the head office of the assurance undertaking covering the commitment is situated;

(f) ‘Member State of the branch’ shall mean the Member State in which the branch covering the commitment is situated;

(g) ‘Member State of the commitment’ shall mean the Member State where the policy holder has his/her habitual residence or, if the policy holder is a legal person, the Member State where the latter's establishment, to which the contract relates, is situated;

(h) ‘Member State of the provision of services’ shall mean the Member State of the commitment, if the commitment is covered by an assurance undertaking or a branch situated in another Member State;

(i) ‘control’ shall mean the relationship between a parent undertaking and a subsidiary, as defined in Article 1 of Council Directive 83/349/EEC(1), or a similar relationship between any natural or legal person and an undertaking;

(j) ‘qualifying holding’ shall mean a direct or indirect holding in an undertaking which represents 10 % or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of the undertaking in which a holding subsists;

For the purposes of this definition, in the context of Articles 8 and 15 and of the other levels of holding referred to in Article 15, the voting rights referred to in Article 92 of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities(2) shall be taken into consideration;

(k) ‘parent undertaking’ shall mean a parent undertaking as defined in Articles 1 and 2 of Directive 83/349/EEC;

(l) ‘subsidiary’ shall mean a subsidiary undertaking as defined in Articles 1 and 2 of Directive 83/349/EEC; any subsidiary of a subsidiary undertaking shall also be regarded as a subsidiary of the undertaking which is those undertakings' ultimate parent undertaking;

(m) ‘regulated market’ shall mean:

• (m) in the case of a market situated in a Member State, a regulated market as defined in Article 1(13) of Directive 93/22/EEC, and

• in the case of a market situated in a third country, a financial market recognised by the home Member State of the assurance undertaking which meets comparable requirements. Any financial instruments dealt in on that market must be of a quality comparable to that of the instruments dealt in on the regulated market or markets of the Member State in question;

(n) ‘competent authorities’ shall mean the national authorities which are empowered by law or regulation to supervise assurance undertakings;

(o) ‘matching assets’ shall mean the representation of underwriting liabilities which can be required to be met in a particular currency by assets expressed or realisable in the same currency;

(p) ‘localisation of assets’ shall mean the existence of assets, whether movable or immovable, within a Member State but shall not be construed as involving a requirement that movable assets be deposited or that immovable assets be subjected to restrictive measures such as the registration of mortgages; assets represented by claims against debtors shall be regarded as situated in the Member State where they are realisable;

(q) capital at risk shall mean the amount payable on death less the mathematical provision for the main risk;

(r) ‘close’ links shall mean a situation in which two or more natural or legal persons are linked by:

(i)

participation, which shall mean the ownership, direct or by way of control, of 20 % or more of the voting rights or capital of an undertaking; or

(ii)

control, which shall mean the relationship between a parent undertaking and a subsidiary, in all the cases referred to in Article 1(1) and (2) of Directive 83/349/EEC, or a similar relationship between any natural or legal person and an undertaking; any subsidiary undertaking of a subsidiary undertaking shall also be considered a subsidiary of the parent undertaking which is at the head of those undertakings.

A situation in which two or more natural or legal persons are permanently linked to one and the same person by a control relationship shall also be regarded as constituting a close link between such persons.

2. Wherever this Directive refers to the euro, the conversion value in national currency to be adopted shall as from 31 December of each year be that of the last day of the preceding month of October for which euro conversion values are available in all the relevant Community currencies.

Article 2 Scope

This Directive concerns the taking-up and pursuit of the self-employed activity of direct insurance carried on by undertakings which are established in a Member State or wish to become established there in the form of the activities defined below:

1.

the following kinds of assurance where they are on a contractual basis:

(a)

life assurance, that is to say, the class of assurance which comprises, in particular, assurance on survival to a stipulated age only, assurance on death only, assurance on survival to a stipulated age or on earlier death, life assurance with return of premiums, marriage assurance, birth assurance;

(b)

annuities;

(c)

supplementary insurance carried on by life assurance undertakings, that is to say, in particular, insurance against personal injury including incapacity for employment, insurance against death resulting from an accident and insurance against disability resulting from an accident or sickness, where these various kinds of insurance are underwritten in addition to life assurance;

(d)

the type of insurance existing in Ireland and the United Kingdom known as permanent health insurance not subject to cancellation;

2.

the following operations, where they are on a contractual basis, in so far as they are subject to supervision by the administrative authorities responsible for the supervision of private insurance:

(a)

tontines whereby associations of subscribers are set up with a view to jointly capitalising their contributions and subsequently distributing the assets thus accumulated among the survivors or among the beneficiaries of the deceased;

(b)

capital redemption operations based on actuarial calculation whereby, in return for single or periodic payments agreed in advance, commitments of specified duration and amount are undertaken;

(c)

management of group pension funds, i.e. operations consisting, for the undertaking concerned, in managing the investments, and in particular the assets representing the reserves of bodies that effect payments on death or survival or in the event of discontinuance or curtailment of activity;

(d)

the operations referred to in (c) where they are accompanied by insurance covering either conservation of capital or payment of a minimum interest;

(e)

the operations carried out by assurance undertakings such as those referred to in Chapter 1, Title 4 of Book IV of the French ‘Code des assurances’.

3.

Operations relating to the length of human life which are prescribed by or provided for in social insurance legislation, when they are effected or managed at their own risk by assurance undertakings in accordance with the laws of a Member State.

Article 3 Activities and bodies excluded

This Directive shall not concern:

1.

subject to the application of Article 2(1)(c), the classes designated in the Annex to Directive 73/239/EEC;

2.

operations of provident and mutual-benefit institutions whose benefits vary according to the resources available and which require each of their members to contribute at the appropriate flat rate;

3.

operations carried out by organisations other than undertakings referred to in Article 2, whose object is to provide benefits for employed or self-employed persons belonging to an undertaking or group of undertakings, or a trade or group of trades, in the event of death or survival or of discontinuance or curtailment of activity, whether or not the commitments arising from such operations are fully covered at all times by mathematical provisions;

4.

subject to the application of Article 2(3), insurance forming part of a statutory system of social security;

5.

organisations which undertake to provide benefits solely in the event of death, where the amount of such benefits does not exceed the average funeral costs for a single death or where the benefits are provided in kind;

6.

mutual associations, where:

• the articles of association contain provisions for calling up additional contributions or reducing their benefits or claiming assistance from other persons who have undertaken to provide it, and

• the annual contribution income for the activities covered by this Directive does not exceed EUR 5 million for three consecutive years. If this amount is exceeded for three consecutive years this Directive shall apply with effect from the fourth year.

Nevertheless, the provisions of this paragraph shall not prevent a mutual assurance undertaking from applying, or continuing, to be licensed under this Directive;

7.

the ‘Versorgungsverband deutscher Wirtschaftsorganisationen’ in Germany unless its statutes are amended as regards the scope of its activities;

8.

the pension activities of pension insurance undertakings prescribed in the Employees. Pension Act (TEL) and other related Finnish legislation provided that:

(a)

pension insurance companies which already under Finnish law are obliged to have separate accounting and management systems for their pension activities will furthermore, as from the date of accession, set up separate legal entities for carrying out these activities;

(b)

the Finnish authorities shall allow in a non-discriminatory manner all nationals and companies of Member States to perform according to Finnish legislation the activities specified in Article 2 related to this exemption whether by means of:

• ownership or participation in an existing insurance company or group,

• creation or participation of new insurance companies or groups, including pension insurance companies;

(c)

the Finnish authorities will submit to the Commission for approval a report within three months from the date of accession, stating which measures have been taken to separate TEL activities from normal insurance activities carried out by Finnish insurance companies in order to conform to all the requirements of this Directive.

(1)

OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive 2001/65/EC of the European Parliament and of the Council (OJ L 283, 27.10.2001, p. 28).

(2)

OJ L 184, 6.7.2001, p. 1.