Legal and regulatory updates

IVASS simplifies pre-contractual requirements – 24 November 2023

On 23 November 2023, the Italian Insurance Regulatory Authority (IVASS) issued Consultation Document no. 9/2023 (the Consultation Document), officially opening a public consultation on proposals to modify:

• the precontractual documentation and information documents pursuant to IVASS Regulation no. 40/2018 (Regulation 40, in matter of distribution); and
• Regulation no. 41/2018 (Regulation 41, in matter of information, disclosure and design of insurance products), as well as on sustainable finance.

IVASS Consultation Document provides for the following:

A. in regard to the distributor’s information documentation as per Regulation 40 (currently contained in Annexes 3, 4, 4 bis and 4 ter to the Regulation):

• a Single Precontractual Model (Modello unico precontrattuale or MUP), different for each IBIPs and non-IBIPs products, will replace Annexes 3, 4 and 4-bis to Regulation 40;
• elimination of Attachment 4-ter to Regulation 40, which contains information on the conduct obligations that distributors must follow;
• abrogation of the obligations, pursuant to art. 56, para. 2 of Regulation 40, to publish on the website or on the distributor's premises the information in Attachments 3 and 4-ter;
• insertion of a clause linked to the information on the product, which will allow distributors to give the information on complaints in a specific location;
• allow distributors, who have no contractual obligation towards insurance companies and do not provide advice based on a personal and partial analysis (as per art. 120-ter, para. 1, lett. e) of the Code of Private Insurances, (the Code)), to publish the information/precontractual documentation on their website or on their premises, without prejudice to the request of the client to receive the documentation in a hard copy.

B. in regard to the simplification of the information/documentation on the product as per Regulation 40:

1. Simplify the structure of the additional informative pre-contractual documents (DIPs), by eliminating:

• redundant elements already contained in the KID and in the DIP/non-life DIP; or
• elements which have an impact on the implementation phase of the contract (eg how to report a claim) and that can be easily found in the General Terms and Conditions of the contract.

As a result of the evaluations made by the Italian insurance regulator, the new proposed schemes on the information to be provided to the potential customers focus on the following aspects:

• costs
• guarantees/insurance coverages offered, exclusions and limitations
• tax regime
• mandatory information pursuant to article 185 of the Code (solvency, complaints, applicable law)

Only in cases where it is necessary for the policyholders to understand some of the characteristics of the product, a reference to the conditions in the additional DIP of the policy can be added. But the reference cannot be generic and must identify the exact point (depending on the case, the page, section, paragraph, line) where the characteristic in question can be found.

2. Introduce a maximum limit of pages for the additional DIPs.

3. Cancel the obligation to insert sections in the DIP where there is no information to provide and the section is blank.

4. For IBIPs, standardize the terms of the additional DIPs with those used in the KIDs to facilitate the comparability with other products perceived as similar and make immediately evident to the clients the insurance features that characterize the products.

C. With respect to sustainable finance, the Consultation Document aims at completing at a national level the obligations introduced by European legislation, already started by the Authority with the publication of IVASS Order no. 131/2023.

Any observations, comments and proposals had to be sent to IVASS, by 22 January 2024, to the following email address: simplified@ivass.it, using the table in Word format attached to the Consultation Document.

On the same date IVASS issued Order no. 139/2023 (the Order) indicating that the rate for management fees to be deducted from the premium collected, for determining the supervisory fee for insurance and reinsurance business for the fiscal year 2024, is 4.37% (see article 335, paragraph 2, legislative decree no. 7/2005).

 

NEW RUI Portal – 5 December 2023

On 4 December IVASS, the Italian insurance regulatory authority, published an alert on its website anticipating the launch of a new portal replacing the RUI (the electronic register of the insurance/reinsurance intermediaries).

The new portal will allow intermediaries to directly update and insert information in the new register.

In this respect, IVASS requests:

• the legal representatives of the companies registered as intermediaries in sections A, B and D of the RUI;
• the legal representatives of insurance companies; and
• the legal representatives of EU branches of the companies acting as intermediaries and registered in the list annexed to the RUI (Elenco Annesso); to access the portal (Login (ivass.it) through SPID (Sistema Pubblico di Identità Digitale – Public System of Digital Identity), CIE (carta d’identità elettronica – electronic ID) or CNS (Carta nazionale dei servizi – National Card of Services).

Before accessing the portal, intermediaries established in the form of companies must equip themselves with a company search or similar documentation from which the powers of the legal representative can be inferred.

Once the first access is made, it will be possible to delegate access to third parties to the portal and the “new” RUI, as soon as the latter is active.

Individuals acting as intermediaries will not have to request to have access to the portal indicated above, as for them the access to the new RUI will be directly possible.

 

Towards a consumer centric insurance – 20 December 2023

On 15 December 2023, the Italian Insurance Regulatory Authority (IVASS) held an international conference titled “Toward a consumer centric insurance.”

During the conference, European supervisory authorities, insurance market players, experts and consumer associations discussed European legislative initiatives on product distribution and supervisory tools for consumer protection.

In particular, the conference was divided into three panels discussing:

• insurance and the EU Commission proposals on Retail Investor Protection rules;
• consumers and sustainability in insurance: accessibility, affordability, sustainability preferences, greenwashing risks;
• IBIPs value for money.

Below we recap the topics discussed in each of the panels.

1. Insurance and the EU Commission proposals on Retail Investor Protection rules

The European Commission recently adopted a retail investment strategy placing the consumers’ interest at the centre of retail investing. Based on this approach, a proposal for an omnibus directive on retail investor protection was published (the RIS Directive) to amend and revise several provisions of the IDD Directive, the Solvency II Directive, and the PRIIPs Regulation.

Mr. Didier Millerot (Head of the Insurance Unit – DG FISMA European Commission) underlined that there are several issues to be addressed with regard to retail investment in Europe. In particular, retail investor participation in the EU is lower if compared with international standards, mainly because consumers have poor understanding of investments and the market, lack of trust in their advisors and they consider products to be too expensive.

According to Mr. Millerot, the aim of the RIS Directive should be to empower retail investors to make investment decisions that are aligned with their needs and preferences, ensure that they’re treated fairly and they are duly protected. This could be achieved by focusing on four key objectives:

• Disclosure and marketing: improve transparency on costs, modernizing disclosure rules to make them suitable for digitalization and strengthen provisions on marketing activities.
• Financial literacy: the EU is developing a program to improve financial competence framework for both adults and young people.
• Inducements: a new set of restrictions and safeguards on inducements and advice is needed (ie partial ban for execution only sales of products without advice and when advice is provided, tougher rules to ensure that firms act in the clients’ best interest – known as the “new best interest test” which will replace the existing quality enhancement and no detriment test).
• Value for money: a new set of rules for manufacturers and distributors should be adopted to assess costs, performance and compare their products against a relevant benchmark (developed by ESMA and EIOPA) of similar products. Moreover, it is crucial to ensure that products with no value for money are not put nor sold on the market.

Some of the participants welcomed these new proposals, while others were more doubtful since they did not perceived such changes as an effective solution to the problems affecting retail investors and the market.

2. Consumers and sustainability in insurance: Accessibility, affordability, sustainability preferences, greenwashing risks

This panel underlined that consumers do not easily understand sustainability features of IBIPs and, consequently, face the risk of greenwashing. The EU intends to strengthen disclosure to help consumers to assess sustainability of insurance products as a way to make accessibility and affordability of insurance protection easier and, at the same time, combat greenwashing.

Mr. Patrick Montagner (First Deputy Secretary General – ACPR) underlined that France has recently issued a recommendation in which it provided that manufacturers have to prove that a product is in fact green through describing the assets’ features. According to Mr. Montagner, this will help consumers to better understand sustainable products and solve the issues raised by other panellists, namely that people are interested in the products but they don’t invest in them because they don’t trust nor understand them.

3. IBIPs value for money

Valérie Mariatte-Wood (Head of the Consumer Protection Department – EIOPA) introduced this last panel by affirming that, according to EIOPA, value for money and consumer centricity are two concepts that go hand to hand. In fact, IBIPs, if well designed, can provide a lot of benefits to consumers but, at the moment, there are products available on the market that don’t offer value for money, causing a massive loss of trust in the insurance sector.

In 2021 EIOPA issued a supervisory statement clarifying that while supervisory activity should not interfere with pricing, manufacturers should be able to present a structured pricing process (ie costs should be quantified, clarified and justified), along with a methodology on how to assess value for money in unit-linked products and hybrid ones.

She also said that EIOPA is developing benchmarks to help supervisors to take a more risk-based approach to supervision by identifying outliers (ie those products that are outside the perimeter of the benchmarks and which may require a higher level of scrutiny) and help insurance product manufacturers to better determine whether or not their products offer value for money.

A three-step approach has been proposed:

• categorize unit linked and hybrid products with similar features into groups based on policyholders needs (cluster of products);
• suggest new indicators around which value for money benchmarks should be developed. Based on the data collected, EIOPA will indicate which indicators work better for which products;
• effective and up-to-date data collection and benchmark calibration will be developed.

Finally, European Supervisors underlined and showed how they are carrying out value for money assessments in their countries and, in particular, IVASS recalled Consultation Document no. 8/2023 in which it discussed the topic thoroughly.

 

IVASS on Suretyship Policies – 8 January 2024

On 5 January 2024, the Italian Insurance Regulatory Authority (IVASS) published a Letter to the Market (Letter) requiring domestic, EU companies operating in Italy under the right of establishment or the freedom to provide services regime and extra EU branches of insurance undertakings, all transacting class 15 of non-life insurance business, to communicate the electronic verification methods for suretyship policies under the Public Procurement Code (Code).

According to Article 106, paragraph 3, of the Code, the suretyship guarantee, which is both issued and signed digitally, must be electronically verifiable at the issuer's premises or managed using platforms that comply with the characteristics established by AGID (ie Agency for Digital Italy). Pending the adoption of platforms that comply with the criteria, ANAC (ie National Authority Against Corruption), in Resolution No. 606/2023, introduced a transitional solution operating until 30 June 2024 under which insurance companies may alternatively:

• provide a special section on its website dedicated to verifying the authenticity of the policy in real time, ensuring compliance with the regulations in force, including those on privacy;
• provide a certified electronic mail address (PEC address), through which the contracting authority receiving the policy can request the issuing company to confirm its authenticity.

The ANAC Resolution also provides that the supervisory authorities can make available to agencies awarding contracts and licensing bodies a list of the website addresses or the PEC addresses of insurance companies and financial intermediaries authorized to issue surety guarantees.

IVASS invites insurance undertakings to notify their chosen verification method and any subsequent changes by means of a communication to vigilanzacondottamercato@pec.ivass.it.

 

Italian Budget Law: Provisions affecting the Insurance Sector – 9 January 2024

On 30 December 2023, the budget law no. 213/2023 was published in the Italian Official Gazette and entered into force on 1 January 2024.

The budget law includes several provisions applicable to the insurance sector, the most important of which provide for the following:

1. Mandatory catastrophic insurance for undertakings with legal seat/permanent establishment in Italy

By 31 December 2024, all the undertakings with legal seat in Italy and/or foreign undertakings with a permanent establishment in Italy have to execute an insurance policy covering against catastrophic risks, such as earthquakes, floods, landslides, inundations and overflows.

The non-execution of the insurance policy could have a negative impact on the company as far as the distribution of contributions, grants and funds by the state is concerned.

Insurance companies can underwrite the risks entirely or through co-insurance or through a consortium. In this latter case, the consortium must be registered and approved by the Italian Insurance Regulatory Authority (IVASS).

The insurance policy must provide for an overdraft not exceeding 15% of damage suffered and for the application of premiums proportional to the risk.

If the insurance company refuses to cover the indicated risk, they could be sanctioned with a pecuniary fine ranging between EUR100,000 and EUR500,000.

SACE (the Italian export credit agency) is authorized to provide insurers with reinsurance up to 50% of the indemnifications paid by the insurers. It cannot exceed EUR5,000 million for 2024. And for each of the years 2025 and 2026 it can’t exceed the greater amount between EUR5,000 million and the free resources as of 31 December of the preceding year that have not been used to pay compensation in the reference year and available on the accounting of the section of the special fund established as per art. 1, para. 14 of law decree no. 2020, converted into law by law no. 40/2020.

2. Establishing a guarantee fund for the life insurance sector

All Italian insurance companies authorized to transact life insurance business and all intermediaries distributing life insurance policies whose premium collection in the life business is equal to or higher than EUR50 million must adhere to the guarantee fund (the Fund).

Branches of extra-EU insurance companies transacting life business must do the same, unless they already adhere to a similar foreign guarantee fund.

Branches of EU life insurance companies and/or companies operating on a freedom to provide service can adhere to the Fund on a voluntary basis.

The Fund is provided with a financial endowment made of the contributions paid by the insurance undertakings and intermediaries indicated above.

For the first year, insurance companies are due to pay the fund contributions equal to 0.4 per thousand of the technical reserves set aside for the life business. For banks, contributions are equal to 0.1 per thousand of technical reserves mediated. For the other intermediaries (ie agents, brokers and direct canvassers) it is 0.1 per thousand of the premium collection achieved the previous year.

The Fund is allowed to ask for an integration of its financial endowment to the insurance companies and the insurance intermediaries, where it has to pay and the financial endowment possessed is not sufficient.

The Fund will pay:

• in case of compulsory liquidation procedure of any of the insurance companies members of the Fund;
• if so provided by its bylaws, it can step in in case of assignment of assets and liabilities;
• if so provided by its bylaws, it can intervene to prevent or overcome a situation of crisis that could lead to a compulsory liquidation procedure.

The Fund can pay up to a maximum of EUR100,000 to each subject requesting an indemnification to it.

IVASS will approve the Fund’s bylaws and have supervisory powers on the Fund.

The non-adhesion to the Fund is sanctioned through the revocation of the authorization of transacting life insurance business or through the revocation of the distribution license for the intermediaries.

 

EIOPA fourth annual report on administrative sanctions and other measures under the Insurance Distribution Directive (IDD) (2022) – 24 January 2024

On 17 January 2024, the European Insurance and Occupational Pensions Authority (EIOPA) published its fourth annual report on administrative sanctions and other measures under the Insurance Distribution Directive no. 2016/97 (IDD).

This report is based on the information provided, on an annual basis, by National Competent Authorities (NCAs) to EIOPA regarding administrative sanctions and other measures that have been imposed on insurance undertakings, as regulated in Article 36(2) of the IDD.

On the basis of the analysis of the information provided by the 21 Member States’ NCAs, conducted through the grouping of sanctions according to the type of breach committed (ie sanctions related to breaches of the professional and organizational requirements; sanctions relating to breaches of other more basic or formal requirements, including registration; sanctions relating to breaches of the substantive information and conduct of business rules) EIOPA has identified the following main issues:

• In total, the NCAs imposed 2,762 sanctions in 2022.
• There was a significant increase in the number of penalties imposed compared to 2021, probably due to the increased implementation of the IDD in various Member States.
• EIOPA considers that the overview provided by the sanctions applied in 2022 no longer represents a mere transitional phase regarding the implementation of the IDD but rather offers a glimpse into the concrete implications of its application across Europe.
• There are many differences in the types of sanctions adopted by the different Member States, ie as regards Italy, the sanctions most applied by the national authority in 2022 were “withdrawal of registration” and “other administrative sanctions or measures,” a circumstance that depends on the different regulatory frameworks of the Member States, rather than on an incorrect implementation of the IDD.

Finally, EIOPA emphasises that the application of sanctions is only one of the tools that competent authorities can use to carry out supervision activities; so the effectiveness of IDD cannot be based solely on this report.