Ireland: Insurance Regulatory Update - July 2016

Last Updated: 5 August 2016
Article by Elizabeth Bothwell and Jennifer McCarthy
Most Read Contributor in Ireland, October 2018

JULY 2016 – THIS MONTH'S NEWS

  • DEPARTMENT OF FINANCE REVIEW OF THE FRAMEWORK FOR MOTOR INSURANCE COMPENSATION IN IRELAND
  • GIBRALTAR FINANCIAL SERVICES COMMISSION (GFSC) TAKES STEPS TO WIND UP MOTOR INSURER WRITING BUSINESS IN IRELAND
  • INSURANCE IRELAND SAYS ACTION MUST BE TAKEN TO TACKLE THE HIGH COST OF CLAIMS DRIVING UP PREMIUMS
  • CENTRAL BANK PUBLISHES GUIDANCE NOTE ON APPLICATION FOR AUTHORISATION AS A RETAIL INTERMEDIARY
  • EUROPEAN PARLIAMENT AND COUNCIL CONSIDER PRIIPS DELEGATED REGULATIONS
  • EIOPA LAUNCHES EU-WIDE THEMATIC REVIEW OF MARKET CONDUCT
  • REQUEST TO EIOPA FOR TECHNICAL ADVICE ON THE REVIEW OF SPECIFIC ITEMS IN THE SOLVENCY II DELEGATED REGULATION
  • "CHANGES TO THE UFR BEFORE THE SOLVENCY II REVIEW UNNECESSARY" SAYS INSURANCE EUROPE
  • UPDATES FROM THE INTERNATIONAL ASSOCIATION OF INSURANCE SUPERVISORS (IAIS)
  • INSURANCE EUROPE UPDATED TOOL HIGHLIGHTS CONSUMER INITIATIVES ACROSS EU INSURER SECTOR
  • UK FINANCIAL OMBUDSMAN SERVICE PUBLISHES OMBUDSMAN NEWS
  • EIOPA AND DEPARMENT OF FINANCE PUBLISHES CONSULTATION PAPERS ON THE INSURANCE DISTRIBUTION DIRECTIVE
  • EUROPEAN AND AMERICAN INSURANCE TRADE ASSOCIATIONS SUPPORT INCLUSION OF INSURANCE IN TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP (TTIP)
  • INSURANCE EUROPE PUBLISHES STATISTICS FOR 2014

IN DOMESTIC NEWS...

DEPARTMENT OF FINANCE REVIEW OF THE FRAMEWORK FOR MOTOR INSURANCE COMPENSATION IN IRELAND

The joint working group established by the Department of Finance and the Department of Transport, Tourism and Sport to review motor insurance compensation in Ireland has issued its report. This arises out of the liquidation of Setanta Insurance in 2014, which highlighted the flaws in the current compensation framework when controversy arose as to whether the Irish Insurance Compensation Fund (ICF) or the Motor Insurance Bureau of Ireland (MIBI) was responsible for unpaid claims of the insolvent insurer. The High Court ruled that MIBI was responsible and this was upheld by the Court of Appeal. MIBI has subsequently appealed to the Supreme Court, scheduled for hearing in late October 2016.

The report gives background to the current compensation framework and the legislation underpinning it and examines a variety of insurance compensation frameworks in other jurisdictions before finally evaluating all of the key issues relating to the current insurance compensation framework. It then makes a series of recommendations to provide certainty to the framework for insurer compensation in Ireland. Its key recommendations cover issues such as coverage, eligibility and limits, funding, governance and administration and reporting obligations to establish an efficient motor insurance database. Additional recommendations will be published over the coming months as part of a more far-reaching review of the current framework. After providing information to the Government, the relevant Ministers will be responsible for taking steps to implement these recommendations.

A link to the report can be found here.

GIBRALTAR FINANCIAL SERVICES COMMISSION (GFSC) TAKES STEPS TO WIND UP MOTOR INSURER WRITING BUSINESS IN IRELAND

On 22 July, the Central Bank was notified by the GFSC that it has taken steps to wind up insolvent insurer, Enterprise Insurance Company plc (Enterprise). Similar to Setanta, the Maltese motor insurer that went into liquidation in July 2014, Enterprise has issued motor insurance cover into the Irish market. The Central Bank has put a useful statement on its website regarding steps that affected policyholders should take if they have concerns about their insurance cover, together with relevant contact details. An FAQ has also been uploaded.

A link to the statement and FAQ can be found here and here.

INSURANCE IRELAND SAYS ACTION MUST BE TAKEN TO TACKLE THE HIGH COST OF CLAIMS DRIVING UP PREMIUMS

Insurance Europe again calls for the adoption of measures to address the high cost of claims driving up premiums. The huge increase in both the quantity and level of Irish awards has resulted in instability and uncertainty in the claims environment and a corresponding increase in premiums. Stability in this sector for the future is one of the main aims of Insurance Europe, as the current situation actually encourages motorists to engage in litigation. Insurance Europe calls for: (i) an increase to the powers of injury boards to determine more claims and reduce legal costs; (ii) an increase in the resources of road traffic enforcement; (iii) benchmarking Irish awards against international standards; and (iv) a fix for Setanta, as, at present, insurers are factoring in the failure of a competitor when issuing insurance quotes.

A link to the article can be found here.

CENTRAL BANK PUBLISHES GUIDANCE NOTE ON APPLICATION FOR AUTHORISATION AS A RETAIL INTERMEDIARY

In the June edition of the Insurance Regulatory Update, we noted that the Central Bank had published an update to its Guidance Note on the completion of an application form for authorisation or registration as a retail intermediary. On 5 July, the Central Bank published an update to this Guidance Note with a further amendment - as part of the standalone business plan submitted, a letter of confirmation of solvency of the applicant as at the date of the application must be provided by the applicant's accountant or auditor, signed and dated accordingly.

A link to the updated guidance note can be found here.

IN EUROPEAN AND INTERNATIONAL NEWS...

EUROPEAN PARLIAMENT AND COUNCIL CONSIDER PRIIPS DELEGATED REGULATIONS

The packaged retail and insurance-based investment products (PRIIPs) Regulation introduces a pre-contractual disclosure document (a key information document (KID)) which must be provided to retail consumers when they purchase a PRIIP to enable them to compare products more easily. Firms must comply with the PRIIPs Regulation from 31 December 2016. There have been a number of developments regarding the PRIIPs Regulation this month, which are summarised below.

The Commission recently adopted a delegated regulation laying down regulatory technical standards on the KID (PRIIPs RTS) and a second delegated regulation relating to temporary product intervention powers for insurance-based investment products. The European Parliament and Council have one month to object to these regulations, if they do not, they will enter into force and will apply from 31 December 2016. As reported in previous editions of the Arthur Cox Insurance Regulatory Update, industry bodies have raised concerns that the timeline for implementation of the PRIIPs Regulation is unrealistic, called for application of the PRIIPs Regulation to be delayed by a year and criticised the PRIIPs RTS from legal and technical perspectives. Earlier in the month, Insurance Europe expressed its disappointment that the PRIIPs RTS was adopted by the Commission without industry concerns having been met. Also, the Council has called for the objection period of several recent delegated acts, including the PRIIPs RTS to be extended by one month, until 30 September 2016.

According to EIOPA, the European Supervisory Authorities (ESAs) intend on publishing a Q&A relating to the technical methodologies included in the PRIIPs RTS on risk, rewards and cost disclosure requirements. In an attempt to provide greater clarity to industry on implementation, this timeline means that the Q&A may be published before the European Parliament and Council have completed their scrutiny of the draft PRIIPs RTS. The Q&A will be provisional on the scrutiny period passing without any objection by the European Parliament or Council.

Despite the Commission's efforts at clarifying outstanding questions through a workshop on the RTS, Insurance Europe has reiterated that most of the technical issues it had raised were not addressed and that the proposed Q&As to be published by the ESAs would be insufficient to provide the legal clarity necessary for implementation. Insurance Europe urges the Council and European Parliament to fix the "substantial flaws" in the PRIIPs RTS.

A link to the PRIIPs RTS and the Commission Delegated Regulation with regard to product intervention is here and here. A link to the joint letter announcing the PRIIPs Q&A is here. A link to the relevant Insurance Europe press statement and joint letter are here and here.

EIOPA LAUNCHES EU-WIDE THEMATIC REVIEW OF MARKET CONDUCT

On 5 July, EIOPA announced the launch of a thematic review of the unit-linked life insurance market. 60% of the unit-linked life insurance market in each participating country will be covered by the review. The review is focused on identifying any aspects of the process for selecting investments for unit-linked insurance products that may have a detrimental effect on consumers. In particular, the relationship between asset-managers and insurers is being examined to ensure that the methods of remuneration do not adversely affect consumers. Three key aspects of the review that EIOPA have highlighted are: monetary incentives and remuneration; methods of dealing with conflicts of interests; and the structure of unit-linked life insurance products. Individual National Competent Authorities (NCAs) will be responsible for dealing directly with the insurers being reviewed and gathering the data required from them. EIOPA will be responsible for coordinating the review on an EU-wide basis and analysing the data received from NCAs. Insurers involved in the exercise are expected to report back by September 2016. The results of the review will be published in early 2017.

A link to EIOPA's press release is here.

REQUEST TO EIOPA FOR TECHNICAL ADVICE ON THE REVIEW OF SPECIFIC ITEMS IN THE SOLVENCY II DELEGATED REGULATION

On 18 July, the European Commission requested EIOPA provide technical advice on the examination of certain elements of the Solvency II Delegated Regulations. This follows its call for evidence on the wider EU regulatory framework last year, where 50 respondents from the insurance industry identified three priorities for review of the Solvency II Framework: proportionate and simplified application of Solvency II requirements; removal of unintended technical inconsistencies; and the removal of unjustified constraints to financing. This call for advice focuses on the first two priorities. EIOPA's advice may be required on the constraints to financing at a later time. The Commission has stated technical advice should be consistent and proportionate to the objectives of the Solvency II Directive and should avoid placing excessive administrative or procedural strains on re(insurers). The request for technical advice sets out the principles and procedure that EIOPA should follow, together with the specific areas on which its technical advice is sought. The advice shall be submitted by 31 October 2017 in advance of the review of the standard formula for Solvency II, which is due to take place during 2018.

A link to the request to EIOPA for Technical Advice and formal request to EIOPA for technical advice can be found here.

"CHANGES TO THE UFR BEFORE THE SOLVENCY II REVIEW UNNECESSARY" SAYS INSURANCE EUROPE

Insurance Europe has responded to EIOPA's consultation on possible changes to the methodology for calculating the Ultimate Forward Rate (UFR) as being unnecessary. Insurance Europe sees no need to change it either for prudential or policyholder protection reasons, noting the current Solvency II framework has several additional layers of protection to ensure that policyholders claims are paid. It believes that changing the UFR now could cause unintended negative consequences for policyholders because it will push insurers towards locking their products into long-term low returns. Insurance Europe also advocates an impact analysis should be undertaken (in the context of the scheduled Solvency II review) before any methodology and implementation plan is finalised for the UFR.

A link to the article can be found here.

UPDATES FROM THE INTERNATIONAL ASSOCIATION OF INSURANCE SUPERVISORS (IAIS)

In July, the IAIS issued a number of publications on its website relating to some recent developments: (i) it has launched a second consultation (the first was in late 2014), to develop the risk-based global insurance capital standard (ICS) for global systemically important insurers (G-SIIs). The first version of the ICS is scheduled to be adopted in mid-2017 with a second version of the ICS planned for adoption in 2019. The purpose of this consultation is to request feedback on the confidential reporting required for the first version of the ICS around the valuation methods adopted, qualifying capital resources and the implementation of a risk-based approach to determining regulatory capital requirements. Comments are expected by 19 October 2016: (ii) a document entitled "G-SII methodology consultation document: resolution to comments" sets out the comments received from members such as EIOPA and the NAIC on its proposed updates to its assessment methodology for G-SIIs and IAIS responses. The comments are interesting in the context of the updated assessment methodology for GSIIs which the IAIS published in June 2016; (iii) the IAIS has also produced comments received on a consultation on the analytical framework for non-traditional non-insurance activities and products. The documents and responses to it are presented on a thematic basis and can be accessed on the IAIS website.

A link to the webpage can be found here.

INSURANCE EUROPE UPDATED TOOL HIGHLIGHTS CONSUMER INITIATIVES ACROSS EU INSURER SECTOR

Insurance Europe has updated its online consumer focus tool. It aims to maximise initiatives in innovation and products enhancement for consumers across the European insurance markets. The tool's development took account of the differing nature of national regulatory frameworks and local consumer needs and is available on the federation's website. It provides country-by-country information on consumer focused practises as well as a non-exhaustive list of pro-consumer initiatives in a number of different key areas such as digitalisation and enhanced claims management.

A link to the tool can be found here.

UK FINANCIAL OMBUDSMAN SERVICE PUBLISHES OMBUDSMAN NEWS

On 26 July, the Financial Ombudsman Service of the United Kingdom (FOS) published its quarterly newsletter summarising the complaints made against regulated financial service providers to the FOS in the first quarter of the year. It also includes a number of case studies to highlight some recurring themes. The newsletter includes a table which compares statistics on complaints received for the first quarter of the year against previous years. Between April and June this year, 81,709 new complaints were received. Payment protection insurance (PPI) complaints continue to be the main source of insurance complaints this quarter with 43,569 new cases lodged with the FOS. 57% of these complaints were resolved in favour of the consumer. However, compared to the same period in previous years, these statistics suggest a reduction in the overall level of PPI complaints.

A link to the newsletter can be found here.

EIOPA AND DEPARMENT OF FINANCE PUBLISHES CONSULTATION PAPERS ON THE INSURANCE DISTRIBUTION DIRECTIVE

Following a request from the European Commission earlier this year, EIOPA has opened a consultation on its draft technical advice on delegated acts concerning the Insurance Distribution Directive. The draft technical advice has three main objectives: to prevent or mitigate mis-selling, ensure that third party payments (e.g. commission) do not have an adverse impact on consumers and that the products sold to consumers are suitable (for advised sales) or appropriate (for non-advised sales).

The consultation paper sets out EIOPA's policy proposals on product oversight and governance arrangements requiring companies to have internal processes for assessing each insurance product before distribution, measures to prevent conflicts of interests for distributors, identifying third party payments that are detrimental to consumers, assessing the suitability or appropriateness of products, and reporting on the service provided to customers. The document also sets out a summary of questions to stakeholders and an impact assessment. Interested parties may provide feedback until 3 October 2016 by filling out a template for comment provided by EIOPA. EIOPA intends to submit its advice to the European Commission in February 2017.

The announcement follows shortly after the Department of Finance announced that it will be carrying out a Public Consultation on national discretions in the Markets in Financial Instruments Directive (MiFID 2) incorporating elements of the Insurance Distribution Directive (IDD). As regulated persons under MiFID 2 and IDD can sell functionally equivalent or substitutable investment products the Department of Finance has included an examination of certain national discretions under the IDD in conjunction with examining the MiFID 2 transposition process. The consultation period will run until 21 September 2016 and interested parties are invited to make submissions.

A link to the EIOPA consultation paper, template for comments is here and  here. A link to the Department of Finance consultation paper is here.

EUROPEAN AND AMERICAN INSURANCE TRADE ASSOCIATIONS SUPPORT INCLUSION OF INSURANCE IN TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP (TTIP)

On 6 July, Insurance Europe, the American Insurance Association and the American Council of Life Insurers released a statement reiterating their support for the inclusion of insurance and other financial services in the TTIP. The TTIP is a proposed trade agreement between the European Union and the United States, with the aim of promoting trade and economic growth. The trade associations believe that including the insurance sector in this agreement will render trade and investment benefits for both the US and EU through increased economic activity, job creation and competitiveness. Additional benefits include setting a high bar for trade negotiations with other countries in the future and increasing dialogue between regulators in both jurisdictions. The trade associations also reiterated their support for an international "covered agreement" on specific insurance prudential matters, the Financial Markets Regulatory Dialogue and the EU-US Insurance Dialogue Project. However, the trade associations believe that inclusion of the insurance sector in the TTIP would create an enduring structure for regulatory cooperation that would build upon these existing dialogues.

A link to Insurance Europe's press release is here.

INSURANCE EUROPE PUBLISHES STATISTICS FOR 2014

On 27 July, Insurance Europe published statistics on the European insurance industry for the year 2014. In 2014, the environment for insurers remained unfavourable as a result of slow growth, low interest rates and stable financial markets. The total gross written premiums in Europe for the year amounted to €1,167 billion which represents a growth of 3.4% over 2013. Insurers' investment portfolios were worth a total of €9,574bn which represented a growth of 9.8% due to gains from fixed income products, increased premiums and a mixed performance in equities. The average European spent €1,964 on insurance in 2014.

A link to the document is here.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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