Royal Decree of 22 December 2020 implementing Article 20(1) of the Act of 3 April 2019 on the withdrawal of the United Kingdom from the European Union for insurance undertakings and intermediaries

FEDERAL PUBLIC SERVICE ECONOMY,
SMALL AND MEDIUM-SIZED ENTERPRISES, SELF-EMPLOYED AND ENERGY * [C − 2020/16465] 22 DECEMBER 2020. — Royal Decree implementing, for what concerns insurance undertakings, insurance, ancillary insurance and reinsurance intermediaries, Article 20, first paragraph of the Act of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union Report to the King

Sir,

This draft Royal Decree provides for the implementation, for what concerns insurance undertakings, of Article 20, first paragraph of the Act of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union, better known as the Brexit Act. It is specifically intended to organize appropriate supervision of insurance undertakings subject to the law of the United Kingdom or of Gibraltar that will cease their activities in Belgium from the date of the end of the transition period granted to the United Kingdom in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

For ease of reference, this date is referred to in this Decree as the "date of the withdrawal of the United Kingdom from the European Union".

On that date, the United Kingdom will no longer enjoy the benefits of the internal market and insurance undertakings will no longer enjoy a European passport.

This Decree allows these undertakings to continue managing existing Belgian contracts until their expiry date.

In the European Union, an authorization obtained in one of the Member States for the exercise of insurance activities is valid for the entire territory of the Union (see Art. 15, paragraph 1 of the Solvency II Directive). If undertakings wish to exercise activities on the territory of another Member State via a branch or in the context of the free provision of services, they must only notify their intention to their supervisor, who will forward this information to the supervisor of the host Member State. This concerns the application of the principle of a single license and the resulting principle of the European passport.

Undertakings subject to the law of a country that is not a Member of the European Union, on the other hand, cannot exercise any activity in Belgium unless they establish a branch there, which must be previously authorized by the National Bank of Belgium (Art. 584 of the Act of 13 March 2016). From the withdrawal of the United Kingdom from the European Union and in the absence of an agreement between the European Union and the United Kingdom, British undertakings will no longer have the right to the European passport. Consequently, the undertakings concerned will no longer be able to exercise activities in Belgium unless they meet this condition.

Certain British undertakings have already decided to cease their activities in Belgium. These undertakings will, however, continue to manage their ongoing insurance contracts until the final expiry date of all their obligations. This management – and in particular the management of claims – must be considered as an insurance activity for which a branch in Belgium must in principle hold an authorization.

SERVICE PUBLIC FEDERAL ECONOMIE,
P.M.E., CLASSES MOYENNES ET ENERGIE
[C − 2020/16465]
22 DECEMBER 2020. — Royal Decree implementing, for what concerns insurance undertakings, insurance intermediaries, ancillary insurance intermediaries and reinsurance intermediaries, Article 20, first paragraph of the Act of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union Report to the King

Sir,

The present draft Royal Decree implements, for what concerns insurance undertakings, Article 20, first paragraph of the Act of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union, more commonly called the Brexit Law. More specifically, it aims to organize appropriate supervision of insurance undertakings, subject to the law of the United Kingdom or of Gibraltar, which will cease their activities in Belgium from the date of the expiration of the transitional period granted to the United Kingdom in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

For convenience, this date is named, in the present Decree, "the date of the withdrawal of the United Kingdom from the European Union".

At this date, the United Kingdom will no longer benefit from the advantages of the single market and insurance undertakings will no longer benefit from a European passport.

The present Decree allows these undertakings to continue managing existing Belgian contracts up to their expiry date.

In the European Union, the approval obtained in one of the Member States to practice insurance activities is valid on the entire territory of the Union (cf. Art. 15, para. 1 of the Solvency II Directive). If undertakings wish to practice activities on the territory of another Member State, whether via a branch or in free provision of services, they must only notify their intention to their supervisory authority, which will transmit the information to the supervisory authority of the host Member State. This is the application of the principle of the single license and the European passport that follows from it.

On the other hand, undertakings subject to the law of a country that is not a Member of the European Union cannot exercise any activity in Belgium unless they establish a branch there, which must previously be approved by the National Bank of Belgium (Art. 584 of the Act of 13 March 2016). From the withdrawal of the United Kingdom from the European Union and in the absence of an agreement between the European Union and the United Kingdom, British undertakings will lose the benefit of the European passport. Therefore, the undertakings concerned can no longer exercise activities in Belgium unless they respect this condition.

A number of British undertakings have already decided to end their activities in Belgium. Nevertheless, these undertakings will continue to manage ongoing insurance contracts until the final expiry of all their commitments. This management – and particularly that of claims – must be considered as an insurance activity for which the approval of a branch in Belgium is, in principle, required.

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An insurance undertaking under Belgian law may waive its authorization when it decides to cease its activities. The Bank may take note of this even if the undertaking still has obligations (Art. 538 of the Act of 13 March 2016). Article 543 of the Act of 13 March 2016 provides that waiving authorization entails the prohibition to conclude new contracts, and Article 545 clarifies that the undertaking remains subject to the supervision of the Bank "until all its insurance contracts (...), as well as all related obligations, are settled". The Bank may, however, exempt such an undertaking from certain provisions of the Act of 13 March 2016. It should be noted that the aforementioned articles apply to branches of third countries on the basis of Article 599 of the Act of 13 March 2016.

Applying these principles, a British insurance undertaking that would refrain from concluding new contracts in Belgium after the Brexit date would therefore have to apply for authorization for a branch on the basis of Article 584, but could at the same time waive this authorization on the basis of Articles 538 and 599 on the grounds that it will not conclude new contracts in Belgium, whereby the aforementioned provisions would apply to it.

To avoid such a complication, the draft Decree provides for a regime for British insurance undertakings that will no longer conclude contracts in Belgium from the date of the withdrawal of the United Kingdom from the European Union, which is comparable to the regime established in Article 545 of the Act of 13 March 2016 for Belgian undertakings. Unless British undertakings have chosen another option, for example a portfolio transfer or obtaining authorization for a branch or subsidiary in Belgium, the regime provided for in the draft Decree is, in principle, the only regime that offers British undertakings the possibility to manage ongoing contracts after Brexit without being subject to the sanctions applicable in the case of illegal exercise of the insurance business in Belgium.

In this regard, it is specified that the loss of authorization as a result of the withdrawal of the United Kingdom from the European Union does not in itself constitute a valid reason to unilaterally terminate or modify insurance contracts regulated by the Act of 4 April 2014 concerning insurance; British undertakings are therefore obliged to continue the execution of these contracts.

Insurance undertakings making use of such an exceptional regime remain subject to all information requirements and conduct rules applicable in Belgium to their activities, in accordance with Chapter 5 of the Act of 4 April 2014 concerning insurance.

This Decree provides for the implementation, for what concerns insurance, ancillary insurance and reinsurance intermediaries, of Article 20, first paragraph of the Act of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union, better known as the Brexit Act. It is specifically intended to allow insurance, ancillary insurance and reinsurance intermediaries subject to the law of the United Kingdom or of Gibraltar to temporarily continue managing existing contracts concluded before the date of the withdrawal of the United Kingdom from the European Union.

In the European Union, registration for the exercise of (re)insurance distribution activities is valid for the entire territory of the Union (see Articles 4 and 6 of the IDD Directive 2016/97).

If these intermediaries wish to exercise insurance distribution activities on the territory of another Member State via a branch or in the context of the free provision of services, they must only notify their intention to the supervisor of the home Member State, who will forward this information to the supervisor of the host Member State. This concerns the application of the principle of a single registration and the resulting principle of the European passport.

Insurance, ancillary insurance and reinsurance intermediaries subject to the law of a country that is not a Member of the European Union, on the other hand, cannot exercise any activity in Belgium unless they have previously been registered in the register of insurance and ancillary insurance intermediaries or the register of reinsurance intermediaries kept by the FSMA. Article 259, § 1, 3rd paragraph of the Act of 4 April 2014 concerning insurance).

Une entreprise d’assurance de droit belge peut renoncer à son agrément lorsqu’elle décide de mettre fin à ses activités. Cette renonciation peut être actée par la Banque même si l’entreprise a encore des engagements (art. 538 de la loi du 13 mars 2016). L’article 543 de la loi du 13 mars 2016 prévoit que la renonciation emporte l’interdiction de souscrire de nouveaux contrats et l’article 545 précise que l’entreprise reste soumise au contrôle de la Banque « jusqu’à ce que soient liquidés tous ses contrats d’assurance (...), ainsi que tous les engagements y afférents ». La Banque peut toutefois dispenser une telle entreprise de certaines des dispositions de la loi du 13 mars 2016. On notera que les articles précités sont applicables aux succursales de pays tiers sur la base de l’article 599 de la loi du 13 mars 2016.

En application de ces principes, une entreprise d’assurance britannique qui renoncerait à souscrire de nouveaux contrats en Belgique après la date du Brexit devrait donc faire agréer une succursale sur la base de l’article 584 mais pourrait, dans le même temps, renoncer à cet agréement sur la base des articles 538 et 599 au motif qu’elle ne souscrira plus de nouveaux contrats en Belgique et se voir appliquer les dispositions précitées.

Afin d’éviter une telle complication, l’arrêté en projet prévoit, pour les entreprises d’assurance britanniques qui ne souscriront plus de contrats en Belgique à partir de la date du retrait du Royaume-Uni de l’Union européenne, un régime analogue à celui prévu par l’article 545 de la loi du 13 mars 2016 pour les entreprises belges. À moins que les entreprises britanniques n’aient choisi une autre option, par exemple un transfert du portefeuille ou l’agrément d’une succursale ou d’une filiale en Belgique, le régime prévu par l’arrêté en projet est, en principe, le seul qui offre aux entreprises britanniques la possibilité de gérer les contrats en cours après le Brexit sans s’exposer aux sanctions prévues dans le cas de l’exercice illégal de l’activité d’assurance en Belgique.

À cet égard, il est précisé que la perte d’agrément consécutive au retrait du Royaume-Uni de l’Union européenne ne constitue pas per se un motif valable de résiliation ou de modification unilatérale des contrats d’assurance régis par la loi du 4 avril 2014 relative aux assurances de sorte que les entreprises britanniques sont tenues de poursuivre l’exécution desdits contrats.

Les entreprises d’assurance qui bénéficieront d’un tel régime dérogatoire resteront soumises à l’ensemble des obligations en matière d’information et aux règles de conduite applicables, en Belgique, à leurs activités, conformément au Chapitre 5 de la loi du 4 avril 2014 relative aux assurances.

Le présent arrêté exécute également l’article 20, alinéa 1er de la loi du 3 avril 2019 relative au retrait du Royaume-Uni de l’Union européenne, plus communément appelé loi Brexit, en ce qui concerne les intermédiaires d’assurance, les intermédiaires d’assurance à titre accessoire et les intermédiaires de réassurance. Il vise plus précisément à autoriser les intermédiaires d’assurance, intermédiaires d’assurance à titre accessoire et intermédiaires de réassurance relevant du droit du Royaume-Uni ou de Gibraltar à continuer à gérer temporairement les contrats conclus avant la date du retrait du Royaume-Uni de l’Union européenne.

Une inscription obtenue dans un État membre de l’Union européenne pour l’exercice d’activités de distribution d’assurances ou de réassurances est valable sur tout le territoire de l’Union (articles 4 et 6 de la directive IDD 2016/97).

Si des intermédiaires inscrits souhaitent exercer des activités de distribution d’assurances ou de réassurances sur le territoire d’un autre État membre, que ce soit par le biais d’une succursale ou sous le régime de la libre prestation de services, ils doivent uniquement notifier leur intention à l’autorité de contrôle de leur État membre d’origine, laquelle transmettra cette information à l’autorité de contrôle de l’État membre d’accueil. Il s’agit de l’application du principe de l’inscription unique et du principe du passeport européen qui en découle.

En revanche, les intermédiaires d’assurance, intermédiaires d’assurance à titre accessoire et intermédiaires de réassurance relevant du droit d’un État non membre de l’Union européenne ne peuvent exercer d’activités en Belgique qu’à la condition d’être préalablement inscrits au registre des intermédiaires d’assurance et des intermédiaires d’assurance à titre accessoire ou au registre des intermédiaires de réassurance, tenus par la FSMA (article 259, § 1er, alinéa 3, de la loi du 4 avril 2014 relative aux assurances).

BELGIAN OFFICIAL GAZETTE — 31.12.2020 — MONITEUR BELGE 98167

From the date of the United Kingdom's withdrawal from the European Union and in the absence of an agreement between the European Union and the United Kingdom, British intermediaries will no longer have the right to the European passport. Consequently, the intermediaries concerned will no longer be able to carry out activities in Belgium unless they meet the aforementioned conditions. This may create legal uncertainty regarding the further settlement of contracts concluded before the date of the United Kingdom's withdrawal from the European Union and managed by British insurance, ancillary insurance, and reinsurance intermediaries.

Certain British insurance, ancillary insurance, and reinsurance intermediaries have already decided to cease their activities in Belgium. These intermediaries, however, wish to continue managing the ongoing insurance contracts they administer until the final expiry date of the policy or until management can be transferred to an insurance, ancillary insurance, or reinsurance intermediary registered in the EU or to an insurance undertaking (provided the latter holds a license in the EU or is temporarily authorized under this Royal Decree). This management constitutes an insurance distribution activity.

To ensure the orderly handling of these policies and to safeguard the rights of policyholders and beneficiaries, it is necessary to provide for a special scheme. The draft decree provides for a temporary scheme that allows insurance, ancillary insurance, and reinsurance intermediaries established in the United Kingdom or Gibraltar, and which were admitted to operate in Belgium prior to the date of the United Kingdom's withdrawal from the European Union, to remain temporarily active with respect to contracts concluded prior to that date, without having to register in the register maintained by the FSMA.

The proposed scheme aims to ensure the continuity of service for existing contracts after the United Kingdom's withdrawal from the European Union, in the interest of all contracting parties and for a limited period. Such a scheme is necessary to ensure the proper handling of insurance policies and thus protect the interests of policyholders.

Article-by-article discussion

CHAPTER I. — General provisions

Article 1
This article contains the definitions important for the correct application and interpretation of the decree.

CHAPTER II. — Provisions applicable to insurance undertakings

Article 2
Paragraph 1 of the draft article defines the ratione personae scope of the article. This article applies exclusively to insurance undertakings subject to the law of the United Kingdom or Gibraltar that were able to carry out insurance activities in Belgium via a Belgian branch (Articles 550 to 555 of the Law of 13 March 2016) or in the context of the free provision of services (Articles 556 to 561 of the Law of 13 March 2016), and more specifically those among them that cease their activities in Belgium and limit themselves to managing the contracts ongoing on the date of the United Kingdom's withdrawal from the European Union.

The scheme determined in the draft decree does not apply to activities that an undertaking subject to the law of the United Kingdom or Gibraltar wishes to develop in Belgium after the date of the United Kingdom's withdrawal from the European Union. For those activities, the undertakings concerned must submit a file to the Bank to obtain a license for a Belgian branch (Articles 584 et seq. of the Law of 13 March 2016). As confirmed by draft Article 5 (cf. infra), these undertakings may benefit from the scheme of this Chapter during the period prior to the examination of the license application.

It goes without saying that the draft article also does not apply to undertakings that currently have no ongoing contracts in Belgium.

The draft article thus meets the authorization criteria of Article 20, first paragraph, of the aforementioned Law of 3 April 2019.

From the withdrawal of the United Kingdom from the European Union and in the absence of an agreement between the European Union and the United Kingdom, British intermediaries will lose the benefit of the European passport. The intermediaries concerned will therefore no longer be able to exercise activities in Belgium except by respecting the condition mentioned above. This situation is likely to create legal uncertainty regarding the future settlement of contracts concluded before the date of the United Kingdom's withdrawal from the European Union, which are managed by British insurance, ancillary insurance, and reinsurance intermediaries.

Certain British insurance, ancillary insurance, and reinsurance intermediaries have already decided to end their activities in Belgium. These intermediaries nevertheless wish to continue managing the ongoing insurance contracts they currently manage, up to the final expiry of the policy or until such time as this management can be transferred to an insurance, ancillary insurance, or reinsurance intermediary registered in a Member State of the European Union or to an insurance undertaking (provided that the latter is authorized in a Member State of the European Union or benefits from a provisional authorization under this decree). This management constitutes an insurance distribution activity.

To allow for the orderly processing of these insurance policies and to safeguard the rights of policyholders and beneficiaries, it is necessary to provide for a special regime. The draft decree sets up a transitional regime under which insurance, ancillary insurance, and reinsurance intermediaries established in the United Kingdom or Gibraltar who, before the date of the United Kingdom's withdrawal from the European Union were authorized to operate in Belgium, may temporarily continue the exercise of their activities related to contracts concluded before that date, without having to be registered in the register kept by the FSMA.

The proposed regime aims to guarantee the continuity, after the withdrawal of the United Kingdom from the European Union, of the services provided for existing contracts, in the interest of all parties to the contract and for a limited period. Such a regime is necessary to ensure the proper settlement of insurance policies and thus preserve the interests of policyholders.

Commentary on the articles

CHAPTER I. — General provisions

Article 1
This article includes the definitions that are important for the correct application and interpretation of the decree.

CHAPTER II. — Provisions applicable to insurance undertakings

Article 2
Paragraph 1 of the draft article specifies its ratione personae scope. Only insurance undertakings subject to the law of the United Kingdom or Gibraltar that were authorized to practice an insurance activity in Belgium either via a Belgian branch (Articles 550 to 555 of the Law of 13 March 2016) or by free provision of services (Articles 556 to 561 of the Law of 13 March 2016) are concerned. Among these undertakings, only those that cease their activities in Belgium and limit themselves to managing the contracts ongoing on the date of the United Kingdom's withdrawal from the European Union will be retained.

The regime provided for by the draft decree is not applicable to activities that an undertaking subject to the law of the United Kingdom or Gibraltar would wish to develop in Belgium after the date of the United Kingdom's withdrawal from the European Union. For these activities, the undertakings concerned must submit a file to the Bank with a view to the approval of a Belgian branch (Articles 584 et seq. of the Law of 13 March 2016). As confirmed by draft Article 5 (cf. infra), these undertakings may, during the examination period of the approval application, benefit from the regime provided for by this Chapter.

It is obvious that the draft article does not concern undertakings that currently have no ongoing insurance contracts in Belgium.

The draft article thus respects the authorization criteria of Article 20, first paragraph, of the aforementioned Law of 3 April 2019.

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Paragraph 2 provides that the undertakings described above will not have to establish an insurance branch in Belgium to which a license has been granted by the Bank (derogation from Article 584 of the Law of 13 March 2016). Apart from the fact that the Belgian activity must be limited to the management of contracts concluded before the date of the United Kingdom's withdrawal from the European Union, all the conditions listed in paragraph 2 of the draft article must be met to be eligible for the derogation. These are seven conditions.

The first condition is that the undertaking confirms to the Bank its intention to use the scheme introduced by this Royal Decree.

The second condition follows directly from the first. It implies that the undertaking will no longer conclude insurance contracts from the date on which the United Kingdom withdraws from the European Union. This condition is equivalent to waiving the recognition, which is the condition for Belgian undertakings for the application of Article 545 of the Law of 13 March 2016. The concept of new contract extends in particular to the renewal, whether tacit or not, of existing contracts. In other words, the contracts must expire on their first contractual maturity date.

Two exceptions are provided for. The first concerns the conversion of the capital of a life insurance into an annuity (or vice versa). The second is the individual continuation of occupational sickness insurance contracts as referred to in Article 208 of the Law of 4 April 2014.

The third condition is that proof is provided that the British undertaking is authorized in the United Kingdom or in Gibraltar to carry out the insurance activities required for the Belgian contracts. The insurance undertaking must indeed be effectively under the supervision of the authorities of its country of origin, so that the proper execution of its operations in Belgium can be guaranteed.

The fourth condition, which strengthens the previous one, implies that the undertaking must not be in an irregular situation, including with regard to its solvency.

The fifth condition is based on Article 538, § 2, first paragraph of the Law of 13 March 2016 and provides that the undertaking ceasing its activities must send a plan to the Bank indicating how the undertaking will settle its obligations. According to the commentary on the aforementioned article, it can be checked on the basis of this plan "whether the manner in which the undertaking intends to settle its ongoing obligations offers the necessary guarantees for the protection of the rights of creditors in respect of insurance or reinsurance. Thus, the plan must contain a credible estimate of the expected financial flows, on the basis of which it can be checked whether the necessary means are available to honor the ongoing contracts" (Parl.St., 54-1584/1 and 54-1584/4).

The sixth condition implies that the undertaking commits to operationally and financially support the Belgian activities. Even if these activities are being settled and their volume gradually decreases, the undertaking must provide sufficient means for their management and, in particular, to ensure that claim requests are handled correctly and efficiently and that claim payments correspond to what is determined in the contracts.

The seventh condition is more general and allows the Bank to request any information it deems necessary for the supervision of the activities being settled. These may be financial data regarding the contracts concerned or information on the operational and personnel resources deployed for the management of the Belgian contracts.

Finally, the eighth condition obliges the undertaking to have a form of presence in Belgium. If the undertaking had established a branch in Belgium before the withdrawal of the United Kingdom from the European Union, this representative is naturally the general agent appointed on the basis of Article 593 of the Law of 13 March 2016. Undertakings that were active in the context of the free provision of services before the withdrawal of the United Kingdom from the European Union are required by the draft provision to appoint a representative with powers comparable to those of the general agent.

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Paragraph 2 of the draft section 2 stipulates that the information provided to the Bank must be updated. This update must take place at least annually and, in any case, after any significant change in the conditions for carrying out the activity in Belgium, such as when the undertaking must draw up a recovery or resolution plan, or a significant change in the prudential legislation applicable in its country of origin.

Article 3
The draft article stipulates that the Bank communicates the liquidation plan of the Belgian portfolio of insurance undertakings to the FSMA, so that the latter can exercise its supervisory powers over the undertakings that will benefit from the regime provided for in the draft decree.

From this perspective, it should be noted that undertakings falling under the derogation regime must continue to comply, in the exercise of their activities in Belgium and under the supervision of the FSMA, with the rules on information provision and the conduct rules of Chapter 5 of Part 6 of the Law of 4 April 2014 concerning insurance (cf. commentary on Article 11).

Article 4
Undertakings in liquidation can be in very different situations. Some manage only a few contracts while others have a larger number of contracts in their portfolio, at least on the date of the withdrawal of the United Kingdom from the European Union. The supervisory regime of the United Kingdom and Gibraltar furthermore constitutes the transposition of the Solvency II Directive and thus offers guarantees that are in principle very comparable to those of the Law of 13 March 2016. Finally, the number of Belgian contracts will gradually decrease as a result of the liquidation of activities.

For these reasons, it is advisable to take as a starting point the principle of proportionality established in Article 303, § 2, 3° of the Law of 13 March 2016 and to grant the Bank broad discretion regarding the supervisory measures applicable to British undertakings winding up their Belgian portfolio.

The first paragraph of the draft article refers to Article 546 of the Law of 13 March 2016, which enables the Bank to take all measures necessary with regard to an insurance undertaking in liquidation to protect the rights of policyholders and beneficiaries. These measures relate both to the supervision of an undertaking in normal circumstances (Title IV of the Law of 13 March 2016) and to mandatory measures in case the undertaking is in difficulty (Art. 517 of the Law of 13 March 2016). The Bank can even terminate the Belgian contracts (Art. 546, fourth paragraph).

The second paragraph constitutes an additional safeguard measure. According to Article 585, § 1, second paragraph, b) of the Law of 13 March 2016, branches of insurance undertakings from third countries in Belgium must deposit an amount of assets to ensure the proper performance of their Belgian obligations. Since this provision does not apply to branches of undertakings subject to the law of a member state of the European Economic Area, no branch of an undertaking from the United Kingdom or Gibraltar has deposited such an amount of assets. Because the draft decree also does not require branches to be established, these undertakings should in principle not deposit the amount referred to in the aforementioned provision.

The second paragraph of the draft article, however, enables the Bank to require such an amount to ensure the proper performance of the Belgian obligations of British undertakings. The amount to be deposited will be determined by the Bank depending on the turnover of the undertaking and the risks incurred. However, this amount may not exceed the amount required from branches of third-country undertakings, namely half of the absolute lower limit of the minimum capital requirement as referred to in Article 189, § 1, 4° of the Law of 13 March 2016.

Finally, it goes without saying that if the undertakings do not comply with the conditions listed in Article 2, § 2, they may lose the benefit of the application of the regime determined in the draft decree.

The second paragraph of paragraph 2 in the draft imposes an update of the information communicated to the Bank. This update is done at least annually and, in all cases, upon the occurrence of any significant modification of the conditions for exercising the activity in Belgium, such as, for example, the fact that the undertaking must set up a recovery or resolution plan or a significant change in the prudential legislation applicable in its country of origin.

Article 3
The draft article provides that the Bank communicates the liquidation plan of the Belgian portfolio of insurance companies to the FSMA so that it can exercise its supervisory prerogatives vis-à-vis the companies that will benefit from the regime provided for by the draft decree.

From this point of view, it must be observed that companies benefiting from the derogation regime must continue to respect, in the exercise of their activities in Belgium and under the supervision of the FSMA, the rules on information and the conduct rules of Chapter 5 of Part 6 of the Law of 4 April 2014 relating to insurance (cf. commentary on Article 11).

Article 4
The situation of companies in liquidation can be very diverse. Some may manage only a few contracts, while others may have a larger volume of business at least on the date of the withdrawal of the United Kingdom from the European Union. In addition, the supervisory regime of the United Kingdom and Gibraltar constitutes the transposition of the Solvency II Directive and therefore offers guarantees in principle very comparable to those of the Law of 13 March 2016. Finally, due to the liquidation of activities, the Belgian business volume will gradually decrease.

For these reasons, it is appropriate to base oneself on the principle of proportionality inscribed in Article 303, § 2, 3° of the Law of 13 March 2016 and to give a wide power of appreciation to the Bank regarding the supervisory measures applicable to British companies liquidating their Belgian portfolio.

The first paragraph of the draft article refers to Article 546 of the Law of 13 March 2016, which allows the Bank to take, vis-à-vis an insurance company in liquidation, all measures necessary to preserve the rights of policyholders and beneficiaries of insurance. These measures concern as well the supervision of a company in a normal situation (Title IV of the Law of 13 March 2016), as coercive measures in the case where the company would be in difficulty (Art. 517 of the Law of 13 March 2016). The Bank is even authorized to terminate the Belgian contracts (Art. 546, para. 4).

The second paragraph constitutes a complementary safeguard measure. According to Article 585, § 1st, paragraph 2, b) of the Law of 13 March 2016, the branches of insurance companies from third countries must deposit in Belgium an amount of assets as a guarantee of good performance of their Belgian commitments. This provision not being applicable to the branches of companies subject to the law of a member state of the European Economic Area, no branch of a company from the United Kingdom or Gibraltar has made such a deposit. The draft decree not requiring the creation of branches either, these same companies should not, in principle, make the deposit provided for by the aforementioned provision.

However, the second paragraph of the draft article allows the Bank to require such a deposit to guarantee the good performance of the execution of the Belgian commitments of British companies. The amount will be specified by the Bank based on the business volume of the company and the risks incurred. It is however provided that it cannot be higher than the amount required from the branches of third companies, namely half of the absolute minimum of the required solvency capital as referred to in Article 189, § 1st, 4° of the Law of 13 March 2016.

Finally, it goes without saying that if the companies do not respect the conditions listed in Article 2, § 2, they can lose the benefit of the regime provided for by the draft decree.

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Article 5
An undertaking eligible for the application of the provisions of the draft decree may submit an application for a license for a Belgian branch. In accordance with Article 584 of the Law of 13 March 2016, new contracts can only be concluded in Belgium after the Bank has granted this license, but in the meantime, the regime provided for in this decision enables the undertaking to manage its contracts concluded before the withdrawal of the United Kingdom from the European Union.

Consequently, the regime provided for in the draft decree ceases to apply when the license is granted to the Belgian branch or (if this license is not granted) when the obligations resulting from the contracts in force on the date of the withdrawal of the United Kingdom from the European Union have been fully settled.

Article 6
This provision constitutes an exception to the regime provided for in draft Articles 1 and 2. It contains an exception that has been included in Belgian law since 1999, specifically in Article 30ter of the Royal Decree of 22 February 1991 establishing the general regulation concerning the control of insurance undertakings.

As determined in Article 584, first paragraph of the Law of 13 March 2016, the obligation for insurance undertakings subject to the law of third countries to establish a branch in Belgium applies “without prejudice to the provisions of the international treaties to which Belgium is a party”. One of these treaties is the General Agreement on Trade in Services (GATS), which is attached to the Agreement establishing the World Trade Organization of 15 April 1994.

According to this agreement, insurance undertakings from the signatory states may operate on the territory of the other signatory states without establishment for risks related to insurance of ships, aircraft, and other means of transport. Since British undertakings have already directed a notification of activities to the Belgian supervisors within the framework of the European directives, it would be superfluous to repeat this procedure within the framework of the GATS agreement.

The draft article obviously only relates to the activities mentioned therein. If a British undertaking also carries out other activities not covered by the GATS agreement, the provisions of Articles 1 and 2 apply to it.

CHAPTER III. — Provisions applicable to insurance, reinsurance, and ancillary insurance intermediaries

Article 7
Article 7 clarifies the ratione personae scope of Chapter III of this decree regarding insurance, reinsurance, and ancillary insurance intermediaries. It concerns insurance, reinsurance, and ancillary insurance intermediaries subject to the law of the United Kingdom or Gibraltar, who, before the date of the withdrawal of the United Kingdom from the European Union, were able to exercise an activity of insurance or reinsurance distribution in Belgium, either via the establishment of a branch in Belgium, or within the framework of the free provision of services (Article 271 of the Law of 4 April 2014).

Subject to an agreement that regulates this issue between the United Kingdom and the European Union, the aforementioned intermediaries will no longer be able to claim the European passport on the date of the withdrawal of the United Kingdom from the European Union. This means that those intermediaries, if they are not registered in the register of insurance and ancillary insurance intermediaries kept by the FSMA or in the register of reinsurance intermediaries kept by it in accordance with Article 259, § 1, third paragraph, of the Law of 4 April 2014, would have to cease any activity of insurance or reinsurance distribution in Belgium, which may have a negative impact on insurance creditors (policyholders and beneficiaries).

Article 5
A company that benefits from the provisions of the draft decree may submit an approval file for a Belgian branch. In accordance with Article 584 of the Law of 13 March 2016, new contracts can only be concluded in Belgium once this approval is granted by the Bank but in the meantime, the regime provided for by this decree will allow this company to manage its contracts concluded before the withdrawal of the United Kingdom from the European Union. Therefore, the regime provided for by the draft decree will end either at the time of the granting of the approval of the Belgian branch, or (if this approval is not granted) when the commitments resulting from the contracts in force at the time of the withdrawal of the United Kingdom from the European Union have been fully liquidated.

Article 6
This provision constitutes an exception to the regime provided for by Articles 1st and 2nd in draft. It actually reproduces an exception existing in Belgian law since 1999 and appearing in Article 30ter of the Royal Decree of 22 February 1991 establishing the general regulation relating to the control of insurance companies.

As provided in Article 584, paragraph 1st of the Law of 13 March 2016, the obligation for insurance companies subject to the law of third countries to set up a branch in Belgium is “without prejudice to the provisions of International Treaties to which Belgium is a party”. Now, one of these treaties is the General Agreement on Trade in Services (GATS), annexed to the Agreement establishing the World Trade Organization of 15 April 1994.

According to this agreement, insurance companies from the signatory States can operate on the territory of the other signatory States without establishment for what concerns the risks related to maritime, air, and transport insurance. Given that British companies have already performed an activity notification to the Belgian supervisory authorities within the framework of European directives, it is superfluous to renew this procedure within the framework of the GATS agreement.

The draft article obviously only concerns the activities mentioned therein. If a British company exercises these activities and others that are not covered by the GATS agreement, the provisions of Articles 1st and 2nd are then applicable to it.

CHAPTER III. — Provisions applicable to insurance intermediaries, ancillary insurance intermediaries, and reinsurance intermediaries

Article 7
Article 7 clarifies the ratione personae scope of Chapter III of this decree, relating to insurance intermediaries, ancillary insurance intermediaries, and reinsurance intermediaries. Concerned are the insurance intermediaries, ancillary insurance intermediaries, and reinsurance intermediaries subject to the law of the United Kingdom or Gibraltar who were authorized, before the date of the withdrawal of the United Kingdom from the European Union, to practice, in Belgium, an activity of insurance or reinsurance distribution, either via the establishment of a Belgian branch, or in free provision of services (Article 271 of the Law of 4 April 2014).

Subject to an agreement settling this problem between the United Kingdom and the European Union, these intermediaries will no longer be authorized, on the date of the withdrawal of the United Kingdom from the European Union, to benefit from the European passport. This implies that in the absence of having obtained an inscription in the register of insurance intermediaries and ancillary insurance intermediaries or in the register of reinsurance intermediaries held by the FSMA in accordance with Article 259, § 1st, paragraph 3, these intermediaries should cease any activity of insurance or reinsurance distribution in Belgium, which will have a potentially prejudicial impact on insurance creditors (policyholders and beneficiaries).

BELGIAN OFFICIAL GAZETTE — 31.12.2020 — MONITEUR BELGE 98171

Article 8
Article 8 describes the transitional arrangement developed for insurance, ancillary insurance, and reinsurance intermediaries subject to the law of the United Kingdom or Gibraltar, who held a European passport for their activity in Belgium prior to the withdrawal of the United Kingdom from the European Union, and who may continue their activity for a maximum of 18 months, provided that this activity remains limited to the management and execution of insurance or reinsurance contracts in force at the time of the withdrawal of the United Kingdom from the European Union. The continuation of such insurance or reinsurance distribution activity with regard to insurance or reinsurance contracts concluded before the date of the withdrawal of the United Kingdom from the European Union does not in any way mean that the intermediaries concerned are allowed to renew or (tacitly or otherwise) extend existing insurance contracts, or to introduce, extend, increase, or reintroduce coverage in those contracts.

This transitional arrangement constitutes a derogation from Article 259, § 1, third paragraph, of the Law of 4 April 2014, under which no insurance or ancillary insurance intermediary and no reinsurance intermediary with their domicile or statutory seat in a non-EEA country may exercise the activity of insurance and reinsurance distribution in Belgium without having been previously registered in, respectively, the register of insurance and ancillary insurance intermediaries or the register of reinsurance intermediaries kept by the FSMA.

To the extent necessary, it is clarified that this transitional arrangement will only apply to intermediaries subject to the law of the United Kingdom or Gibraltar who, after the withdrawal of the United Kingdom from the European Union, still exercise an activity of insurance or reinsurance distribution in Belgium. It will therefore not apply to intermediaries who have already transferred their distribution activity, on the Brexit date, to other – Belgian or foreign – insurance distributors.

This transitional arrangement applies for a period of 18 months, calculated from the Brexit date. Article 8, § 1, second paragraph, states that this is a maximum period of 18 months. This period could be shorter for certain intermediaries, depending on the duration of their plan to cease their activity, or if they are registered in the FSMA register before the expiry of that period. Intermediaries who would still be exercising an activity of insurance or reinsurance distribution at the expiry of that period, and who would not have been registered in the FSMA register within that period, would have to cease any activity of insurance or reinsurance distribution, even for ongoing contracts. Otherwise, they would be deemed to be exercising an illegal activity of insurance or reinsurance distribution, which could lead to the imposition of criminal or administrative sanctions.

Intermediaries who intend to make use of the aforementioned transitional arrangement must notify the FSMA thereof no later than within two months after the withdrawal of the United Kingdom from the European Union.

Along with the notification, the intermediaries must submit to the FSMA a plan in which they clarify how they will cease their activity before the expiry of the aforementioned 18-month period. That plan must in particular make it possible to verify to what extent the rights of policyholders, insured persons, and beneficiaries of insurance and reinsurance contracts have been taken into account, and to what extent those rights will be safeguarded.

In order to assess to what extent the intermediaries concerned are still subject to supervision in their home state, they must also inform the FSMA if they are no longer permitted to exercise an activity of insurance or reinsurance distribution under their national legislation, or if they have such financial difficulties that they would no longer be able to comply with the legal and regulatory requirements applicable in their home state. This information should also enable the FSMA to assess the quality and follow-up of the plan regarding the cessation of the activity.

Other data could also be useful to the FSMA in assessing the manner in which the plan regarding the cessation of the activity is followed up and respected. To that end, the FSMA may request all additional information regarding the insurance or reinsurance distribution activity still being exercised in Belgium, and in particular all information regarding the insurance or reinsurance contracts which they manage or execute.

The FSMA may also request the same data from insurance undertakings that exercise an activity of direct insurance distribution in Belgium, i.e., without recourse to intermediaries, and for which the derogatory arrangement mentioned in Article 2, § 2 of this Decree applies, so that they can continue the execution of ongoing contracts. This data should also enable the FSMA to assess the manner in which those insurance undertakings organize the cessation of their insurance distribution activity in Belgium.

Article 9
Article 9 gives the FSMA the possibility to take all measures aimed at safeguarding the rights of policyholders, insured persons, and beneficiaries of insurance and reinsurance contracts. Those measures include in particular the possibility for the FSMA to order an intermediary to transfer its activity of insurance or reinsurance distribution in whole or in part, or to terminate the contracts linking them to the policyholders, insured persons, and beneficiaries of insurance and reinsurance contracts.

Those measures may be taken with regard to all intermediaries covered by Article 7. They could therefore also be taken with regard to intermediaries who have not notified the FSMA of their intention to claim the transitional arrangement, and who have therefore not submitted a plan regarding the cessation of their activity in Belgium.

The aforementioned measures may also be taken, for example, if the intermediary does not respect the plan regarding the cessation of its activity submitted by it, or if that plan does not yield the expected results. More generally, the FSMA may take those measures whenever the rights of policyholders, insured persons, and beneficiaries of insurance and reinsurance contracts are jeopardized.

The FSMA may also take the same measures with regard to insurance undertakings that exercise an activity of direct insurance distribution in Belgium, i.e., without recourse to intermediaries, and for which the derogatory arrangement mentioned in Article 2, § 2 of this Decree applies, so that they can continue to execute the ongoing contracts.

Article 10
Article 10 clarifies that the transitional arrangement applies not only to insurance, ancillary insurance, and reinsurance intermediaries who intend not to continue their activity of insurance or reinsurance distribution in Belgium, but also to insurance, ancillary insurance, and reinsurance intermediaries who wish to continue their activity and have meanwhile submitted a request to be registered in the FSMA register, in accordance with Article 259, § 1, third paragraph, of the Law of 4 April 2014.

In that hypothesis, the transitional arrangement applies during the entire period in which their registration application is being processed, i.e., until they are registered in the register. Once they are registered in the register, the application of the transitional arrangement ends, insofar as the intermediary concerned can exercise its distribution activity in Belgium in accordance with the Law of 4 April 2014, without having to limit it to the insurance and reinsurance contracts concluded before the withdrawal of the United Kingdom from the European Union. If the FSMA decides to refuse registration in the register, the transitional arrangement should continue to apply to the intermediary until the maximum period of 18 months set out in Article 8, § 1, second paragraph, expires.

Article 11
Article 11 clarifies that the FSMA, during the duration of the provisional authorization referred to in Article 8, may exercise the investigative powers referred to in Article 304 of the Law of 4 April 2014 with regard to the intermediaries for whom that provisional authorization applies, and that it retains the possibility, with regard to those intermediaries, to take the measures and sanctions referred to in Articles 312, 314, 315, and 319 of the same law, if they fail to comply with the legal and regulatory provisions applicable to them.

would not comply with the legal and regulatory provisions applicable to them, in particular the rules on information provision and the conduct rules of Chapter 5 of Part 6 of the Law of 4 April 2014.

The intermediaries for whom the derogation scheme referred to in Article 8 of this Decree applies must, in fact, when exercising their activity in Belgium and under the supervision of the FSMA, continue to comply with the rules on information provision and the conduct rules of Chapter 5 of Part 6 of the Law of 4 April 2014 concerning insurance.

In accordance with Article 278, § 1, of the Law of 4 April 2014, those rules apply to all insurance distributors subject to the law of third countries that legally provide their services in Belgium, for the distribution activities they carry out on Belgian territory. Now, that is the case with the intermediaries targeted by this Decree, who are legally allowed to carry out a distribution activity in Belgium, even if that permission is temporary.

The same reasoning applies to insurance undertakings.

Those intermediaries must also continue to comply with the provisions of general interest referred to in Article 271, § 1, second paragraph, of the Law of 4 April 2014.

Furthermore, Article 11 clarifies that the FSMA may exercise the investigative powers referred to in Article 304 of the Law of 4 April 2014 with regard to the insurance undertakings for which the transitional scheme of Article 2, § 2 applies, and that it also retains the possibility to take, with regard to those undertakings, the measures and sanctions provided for in Articles 310, 314, 315 and 319 of the same Law if they were to fail to comply with the legal and regulatory provisions applicable to them, in particular the rules on information provision and the conduct rules of Chapter 5 of Part 6 of the Law of 4 April 2014.

It is clarified that, if those provisions refer to the competent authorities of the member state of origin, this means, for the purposes of this Article, the competent authorities of the United Kingdom or of Gibraltar.

Article 12

Article 259, § 2, of the Law of 4 April 2014 provides that insurance or reinsurance distributors, who have a branch in Belgium or who exercise their activities in Belgium without being established there, may not rely on an insurance, ancillary insurance or reinsurance intermediary who is not registered in the register of insurance and ancillary insurance intermediaries kept by the FSMA or in the register of reinsurance intermediaries kept by it, or whose registration has been suspended pursuant to Article 311, § 1, second paragraph, of the same Law. That Article constitutes the transposition, in Belgian law, of Article 16 of the IDD Directive.

Article 13 clarifies that, in derogation from the aforementioned Article 259, § 2, insurance or reinsurance distributors who have a branch in Belgium or who exercise their activities in Belgium without being established there, may rely on the intermediaries referred to in Article 6 for whom the transitional scheme referred to in Article 7 applies.

That provision also applies to the insurance undertakings for which the derogation scheme referred to in Article 2, § 2 of this Decree applies, because they carry out an insurance distribution activity in Belgium.

CHAPTER IV. — Final Provisions

Article 13

This Decree enters into force on the date of entry into force of Article 20 of the Law of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union, in accordance with Article 46 of that Law.

Article 14

This provision requires no special explanation.

The Minister of the Economy,
P.-Y. DERMAGNE

The Minister of Justice,
V. VAN QUICKENBORNE

The State Secretary for Consumer Protection,
E. DE BLEEKER

are applicable, in particular the rules on information and the rules of conduct of Chapter 5 of Part 6 of the Law of 4 April 2014.

The intermediaries who benefit from the transitional scheme of Article 8 must indeed continue to respect, in the exercise of their activities in Belgium, and under the supervision of the FSMA, the rules on information and the rules of conduct of Chapter 5 of Part 6 of the Law of 4 April 2014 relating to insurance.

In accordance with Article 278, § 1st of the Law of 4 April 2014, these rules are applicable to all insurance product distributors who fall under the law of third countries and who are legally authorized to provide their services in Belgium, for their distribution activities carried out on Belgian territory. Now, such is the case of the intermediaries covered by this decree, who are legally authorized to provide distribution services in Belgium, even if this authorization is provisional.

The same reasoning applies to insurance companies.

These intermediaries are also required to continue to respect the provisions of general interest referred to in Article 271, § 1st, paragraph 2 of the Law of 4 April 2014.

Article 11 also clarifies that the FSMA may exercise the investigative powers described in Article 304 of the Law of 4 April 2014 with regard to insurance companies benefiting from the derogatory scheme of Article 2, § 2 and that the FSMA also retains the option to take, with regard to these companies, the measures and sanctions provided for in Articles 310, 314, 315 and 319 of the same Law if they were to fail to comply with the legal and regulatory provisions applicable to them, in particular the rules on information and the rules of conduct of Chapter 5 of Part 6 of the Law of 4 April 2014.

It is specified that when these provisions refer to the competent authorities of the member state of origin, it is necessary to understand, for the application of this article, the competent authorities of the United Kingdom or Gibraltar.

Article 12

Article 259, § 2 of the Law of 4 April 2014 provides that insurance or reinsurance product distributors who have an establishment in Belgium or who exercise their activity there without being established there cannot call upon an insurance intermediary, an ancillary insurance intermediary or a reinsurance intermediary who is not registered in the register of insurance and ancillary insurance intermediaries or in the register of reinsurance intermediaries, kept by the FSMA or whose registration has been suspended pursuant to Article 311, § 1st, paragraph 2 of the same law. This article constitutes the transposition, in Belgian law, of Article 16 of the IDD Directive.

It is specified in Article 13 that by derogation from the aforementioned article, insurance or reinsurance product distributors who have an establishment in Belgium or who exercise their activity there without being established there are authorized to call upon the intermediaries referred to in Article 6 who benefit from the transitional regime of Article 7.

This provision also applies to insurance companies benefiting from the derogatory regime of Article 2, § 2 of this decree since they exercise insurance distribution activities in Belgium.

CHAPTER IV. — Final Provisions

Article 13

This decree enters into force on the day of entry into force of Article 20, paragraph 1, of the Law of 3 April 2019 relating to the withdrawal of the United Kingdom from the European Union, in accordance with Article 46 of this law.

Article 14

This provision calls for no particular comment.

The Minister of the Economy,
P.-Y. DERMAGNE

The Minister of Justice,
V. VAN QUICKENBORNE

The Secretary of State for Consumer Protection, E. DE BLEEKER

98174 BELGIAN OFFICIAL GAZETTE — 31.12.2020 — MONITEUR BELGE

COUNCIL OF STATE legislation section
Opinion 66.043/1 of 24 May 2019 on a draft royal decree 'implementing, for what concerns insurance undertakings, insurance, ancillary insurance and reinsurance intermediaries, Article 20 of the law concerning the withdrawal of the United Kingdom from the European Union'

On 24 April 2019, the Council of State, legislation section, was requested by the Minister of the Economy and Consumers to provide an opinion within a period of thirty days on a draft royal decree 'implementing, for what concerns insurance undertakings, insurance, ancillary insurance and reinsurance intermediaries, Article 20 of the law concerning the withdrawal of the United Kingdom from the European Union'.

The draft was examined by the first chamber on 9 May 2019. The chamber was composed of Marnix VAN DAMME, Chamber President, Wilfried VAN VAERENBERGH and Wouter PAS, Councillors of State, Johan PUT, assessor, and Helena KETS, deputy clerk.

The report was presented by Jonas RIEMSLAGH, auditor.

The agreement between the French and Dutch text of the opinion was checked under the supervision of Wilfried VAN VAERENBERGH, Councillor of State.

The opinion, the text of which follows, was given on 24 May 2019.

In application of Article 84, § 3, first paragraph, of the laws on the Council of State, coordinated on 12 January 1973, the legislation section focused its examination on the investigation of the competence of the author of the act, the legal basis, as well as the question of whether the prescribed formal requirements were met.
Taking into account the time at which this opinion is given, the Council of State draws attention to the fact that, due to the resignation of the government, the competence of the latter is limited to handling current affairs. This opinion is however given without examining whether this draft falls within that limited competence, since the legislation section has no knowledge of the entirety of the factual data which the government may take into account when it has to judge whether it is necessary to establish or modify regulations.

SCOPE AND LEGAL BASIS OF THE DRAFT

The draft royal decree submitted for opinion contains various measures regarding the insurance sector in the event that the United Kingdom leaves the European Union after the expiry of the period referred to in Article 50, paragraph 3, of the Treaty on European Union (TEU) without an agreement on this matter being concluded and approved as provided for in Article 50, paragraph 2, TEU.

The draft first sets out a scheme that allows insurance undertakings subject to the law of the United Kingdom or the law of Gibraltar, under certain conditions, to continue insurance contracts concluded before the date of withdrawal of the United Kingdom from the European Union without the insurance undertaking already having the required authorization (Chapter II of the draft).

In addition, the draft provides for the possibility for insurance, ancillary insurance and reinsurance intermediaries subject to the law of the United Kingdom or the law of Gibraltar to continue, for a maximum period of 18 months and under certain conditions, their activity relating to insurance or reinsurance contracts concluded before the date of withdrawal of the United Kingdom from the European Union, without having already been registered in the register kept by the FSMA for this purpose (Chapter III of the draft). It also provides for a scheme for the insurance undertakings referred to in Chapter II which carry out an insurance distribution activity in Belgium without the intervention of an intermediary (Articles 8, § 3, second paragraph, 9 and 11, second paragraph, of the draft).

The draft finds its legal basis in Article 20 of the Law of 3 April 2019 'concerning the withdrawal of the United Kingdom from the European Union', which reads:

« The King may, on the advice of the Financial Services and Markets Authority and the National Bank of Belgium, take appropriate measures for the proper execution of contracts concluded prior to the loss of recognition, in Belgium, of authorizations, registrations, entries, and, more generally, of any form of permission of persons or companies active in the financial sector, in particular those having the status of credit institution, investment firm, insurance or reinsurance undertaking, payment institution, electronic money institution,

CONSEIL D’ÉTAT legislation section
Opinion 66.043/1 of 24 May 2019 on a draft royal decree 'implementing, for what concerns insurance undertakings, insurance intermediaries, ancillary insurance intermediaries and reinsurance intermediaries, Article 20 of the law relating to the withdrawal of the United Kingdom from the European Union'

On 24 April 2019, the Council of State, legislation section, was invited by the Minister of the Economy and Consumers to communicate an opinion, within a period of thirty days, on a draft royal decree 'implementing, for what concerns insurance undertakings, insurance intermediaries, ancillary insurance intermediaries and reinsurance intermediaries, Article 20 of the law relating to the withdrawal of the United Kingdom from the European Union'.

The draft was examined by the first chamber on 9 May 2019. The chamber was composed of Marnix VAN DAMME, chamber president, Wilfried VAN VAERENBERGH and Wouter PAS, Councillors of State, Johan PUT, assessor, and Helena KETS, deputy clerk.

The report was presented by Jonas RIEMSLAGH, auditor.

The concordance between the French version and the Dutch version of the opinion was verified under the control of Wilfried VAN VAERENBERGH, Councillor of State.

The opinion, the text of which follows, was given on 24 May 2019.

In application of Article 84, § 3, paragraph 1, of the laws on the Council of State, coordinated on 12 January 1973, the legislation section made its examination essentially focus on the competence of the author of the act, the legal basis and the accomplishment of the prescribed formalities.
Taking into account the moment when this opinion is given, the Council of State draws attention to the fact that due to the resignation of the Government, the competence of the latter is limited to the dispatch of current affairs. This opinion is however given without it being examined whether the draft indeed falls within the competence thus limited, the legislation section not having knowledge of the entirety of the factual elements that the Government may take into consideration when it must assess the necessity of adopting or modifying provisions.

SCOPE AND LEGAL BASIS OF THE DRAFT

The draft royal decree submitted for opinion comprises several measures relating to the insurance sector applicable in the event that the United Kingdom leaves the European Union after the expiry of the period referred to in Article 50, paragraph 3, of the Treaty on European Union (TEU), without an agreement on this subject having been concluded and approved as provided for in Article 50, paragraph 2, of the TEU.

The draft first sets out the rules which allow, under certain conditions, insurance companies subject to the law of the United Kingdom or the law of Gibraltar to continue insurance contracts concluded before the date of withdrawal of the United Kingdom from the European Union, without the insurance company already having the required authorization (Chapter II of the draft).

In addition, the draft provides for the possibility for insurance, ancillary insurance and reinsurance intermediaries subject to the law of the United Kingdom or the law of Gibraltar to continue, for a maximum period of 18 months and under certain conditions, their activity relating to insurance or reinsurance contracts concluded before the date of withdrawal of the United Kingdom from the European Union, without having already been registered in the register kept by the FSMA (Chapter III of the draft). In addition, the draft also provides for a regulation for the insurance companies referred to in Chapter II which exercise an insurance distribution activity in Belgium without the intervention of an intermediary (Articles 8, § 3, paragraph 2, 9 and 11, paragraph 2, of the draft).

The draft finds its legal basis in Article 20 of the Law of 3 April 2019 'relating to the withdrawal of the United Kingdom from the European Union', which states as follows:

« The King may, on the advice of the financial services and markets authority and the National Bank of Belgium, take the useful measures for the proper execution of contracts concluded prior to the loss of recognition, in Belgium, of authorizations, registrations, entries and, more generally, of any form of authorization of persons or companies active in the financial sector, in particular those having the quality of credit institution, investment company, insurance or reinsurance company, payment

BELGIAN OFFICIAL GAZETTE — 31.12.2020 — MONITEUR BELGE 98175

money, lender, collective investment undertaking, management company of collective investment undertakings, manager of alternative investment funds, insurance and reinsurance intermediary or credit intermediary and which fall under the law of the United Kingdom of Great Britain and Northern Ireland or of Gibraltar.

With a view to the implementation of agreements concluded prior to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, the measures referred to in the first paragraph may, inter alia, consist in granting the authorizations required for undertakings falling under the law of a non-member State of the Union, or in granting an equivalence with the mutual recognition scheme existing under Union law.

The proposed scheme concerns the further implementation of agreements concluded by undertakings that, as a result of the withdrawal of the United Kingdom from the European Union, no longer have the authorization to carry on the activity in question in Belgium. The measures contained therein may be considered as "useful measures" within the meaning of the aforementioned Article 20 of the Law of 3 April 2019.

EXAMINATION OF THE TEXT

GENERAL OBSERVATION

Access to and the exercise of the activities regulated by the draft in the insurance sector concern the trade policy of the European Union. In accordance with Article 3(1)(e) and Article 207 of the Treaty on the Functioning of the European Union (TFEU), the European Union has exclusive competence for common trade policy. Pursuant to Article 2(1) TFEU, where the Treaties confer an exclusive competence on the Union in a specific area, only the Union may legislate and adopt legally binding acts, and Member States may do so only if they are authorized by the Union or to implement Union acts.

With regard to Chapter II of the draft, it must be noted that Article 162 of Directive 2009/138/EC (1) provides that Member States "shall make access to the activities referred to in Article 2(1), first paragraph, subject to authorization for any undertaking whose head office is located outside the Community."

With regard to Chapter III of the draft, reference may be made to Directive (EU) 2016/97 (2), the scope of which is defined in Article 1(6), second paragraph, as follows:

"This Directive shall not affect the right of a Member State regarding the insurance and reinsurance distribution business carried on in its territory by insurance and reinsurance undertakings or insurance and reinsurance intermediaries established in a third country on the basis of the freedom to provide services, provided that equal treatment is guaranteed for all persons exercising or permitted to exercise insurance and reinsurance distribution business on that market."

Regarding the compatibility of the draft with the exclusive competences and the law of the European Union, the delegate declared the following:

"Regarding the conformity of the solution established by the draft Royal Decree with Union law, in particular with Article 162 of Directive 2009/138/EC which requires the establishment of a branch subject to authorization for insurance undertakings subject to the law of a third State (i.e., not a member of the EEA), the following elements are noted:

First, the situation to which the draft Royal Decree intends to provide a solution is an unprecedented situation that existing Community texts have never envisaged/apprehended. Thus, when Article 162 of the so-called Solvency II Directive refers to non-member States, the provision only aimed (and did not intend to aim) at non-member States that have never been members before. A rule of interpretation established by the CJEU is the teleological interpretation according to which the purpose of the provision must prevail over a purely literal interpretation of the text.
The draft Royal Decree applies principles recognized in Community case law, namely the principles of necessity and legitimate expectation. The state of necessity justifies the draft norm in that, in the assumed case, there is no alternative and the solution adopted has a legitimate purpose and the solution is entirely proportionate (law of circumstance, temporary scope, unique character). Legitimate expectation is explained by the advantage derived from the draft regulatory provisions, primarily for the benefit of insurance clients/debtors, who are and remain persons (natural or legal) under Belgian law or more broadly Belgian residents. By concluding contracts with entities subject to British law, which at the time of conclusion of the contracts were subject to the law of a Member State, these persons were legitimately entitled to expect the benefit of Community law provisions. Not organizing a legal regime favoring the proper execution of ongoing contracts (i.e., concluded before Brexit) would directly go against the legitimate expectation that the counterparties of British companies were entitled to expect.
The solution put forward by the draft Royal Decree is in line with the recommendations issued by the European Insurance and Occupational Pensions Authority established by Regulation No 1094/2010. We take the liberty of attaching said recommendations. One can therefore hardly imagine that the European Commission, as guardian of Community law, would question the validity of the solution provided by the draft Royal Decree."

The proposed scheme concerns the monitoring of contracts concluded by companies that, following the withdrawal of the United Kingdom from the European Union, no longer have the authorization to exercise the activity in question in Belgium. The measures contained therein may be considered as "useful measures" within the meaning of the aforementioned Article 20 of the Law of 3 April 2019.

EXAMINATION OF THE TEXT

GENERAL OBSERVATION

Access to the activities related to the insurance sector, regulated in the draft, as well as their exercise concern the commercial policy of the European Union. According to Article 3(1)(e) and Article 207 of the Treaty on the Functioning of the European Union (TFEU), the European Union has exclusive competence in matters of common commercial policy. Article 2(1) of the TFEU provides that when the Treaties confer exclusive competence on the Union in a specific area, only the Union may legislate and adopt legally binding acts, Member States being able to do so only if they are authorized by the Union, or to implement Union acts.

With regard to Chapter III of the draft, reference may be made to Directive (EU) 2016/97 (2), the scope of which is defined in Article 1(6), second paragraph, as follows:

With regard to the compatibility of the draft with the exclusive competences and the law of the European Union, the delegate declared the following:

First, the situation to which the draft Royal Decree intends to provide a solution is an unprecedented situation that existing Community texts have never envisaged/apprehended. Thus, when Article 162 of the so-called Solvency II Directive refers to non-member States, the provision only aimed (and did not intend to aim) at non-member States that have never been members before. A rule of interpretation established by the CJEU is the teleological interpretation according to which the purpose of the provision must prevail over a purely literal interpretation of the text.
The draft Royal Decree applies principles recognized in Community case law, namely the principles of necessity and legitimate expectation. The state of necessity justifies the draft norm in that, in the assumed case, there is no alternative and the solution adopted has a legitimate purpose and the solution is entirely proportionate ("law of circumstance, temporary scope, unique character"). Legitimate expectation is explained by the advantage derived from the draft regulatory provisions, primarily for the benefit of insurance clients/debtors who are and remain persons (natural or legal) under Belgian law or more broadly Belgian residents. By concluding contracts with entities subject to British law, which at the time of conclusion of the contracts were subject to the law of a Member State, these persons were legitimately entitled to expect the benefit of Community law provisions. Not organizing a legal regime favoring the proper execution of ongoing contracts (i.e., concluded before Brexit) would directly go against the legitimate expectation that the counterparties of British companies were entitled to expect.
The solution put forward by the draft Royal Decree is in line with the recommendations issued by the European Insurance and Occupational Pensions Authority established by Regulation No 1094/2010. We take the liberty of attaching said recommendations. One can therefore hardly imagine that the European Commission, as guardian of Community law, would question the validity of the solution provided by the draft Royal Decree."

At first glance, it may be assumed that the proposed scheme does not pose a problem in light of the aforementioned European principles and provisions, since it does not regulate market access, but only the continuation of existing agreements. The draft also contains guarantees regarding the control and supervision of the companies and intermediaries concerned.

SPECIFIC OBSERVATIONS

Preamble

The first paragraph of the preamble must refer to Article 20 of the Law of 3 April 2019.
Since the request for advice was submitted using Article 84, § 1, first paragraph, 2°, of the coordinated laws on the Council of State, reference must be made in the preamble to that provision and not to Article 84, § 1, first paragraph, 3°. Moreover, the reference and considerations regarding the justification of urgency in the preamble must also be omitted.

Articles 2 and 7

Articles 2 and 7 of the draft refer to undertakings that "before the date of the withdrawal of the United Kingdom from the European Union" were authorized to carry on the activity in question.

The delegate has confirmed that only those undertakings are meant that have such authorization at the time of the withdrawal of the United Kingdom from the European Union and not those undertakings that had authorization at any time before that withdrawal. The text of the relevant provisions must be adapted in this sense.

Article 6

In line with what is set out in the report to the King, it is recommended to refer in Article 6, first paragraph, of the draft to insurance undertakings that meet the conditions of Article 2, § 1, "insofar as those cover risks located in Belgium relating to (...)".

In the Dutch text of Article 6, first paragraph, the introductory sentence must also read "Articles 2 to 4".

Article 12

Article 12 of the draft provides that, in derogation from Article 259, § 2, of the Law of 4 April 2014, insurance or reinsurance distributors who have an establishment in Belgium or who exercise their activities there without being established there may rely "on the intermediaries referred to in Article 7 for whom the transitional scheme of Article 8 applies".

It must be assumed that Article 12 only applies "insofar as" application can be made of Article 8 of the draft. It is therefore recommended to replace the words "for whom" with the words "insofar as".

Article 13

Article 13 of the draft provides that the decision to be taken enters into force on the day it is published in the Belgian State Gazette, but "produces effects from the date of the withdrawal of the United Kingdom from the European Union insofar as this withdrawal takes place without agreement between the United Kingdom and the European Union on the matters covered by this decree".

BELGIAN STATE GAZETTE — 31.12.2020 — MONITEUR BELGE 98177

The decree envisaged cannot enter into force before the provision that provides it with a legal basis. Article 20 of the Law of 3 April 2019 enters into force on the date that, in execution of Article 46 of the same law, the King will determine for the entry into force of the law. Consequently, it is necessary to specify in Article 13 of the draft that the decree enters into force on the same date as that on which the Law of 3 April 2019 enters into force.

If it is further deemed useful to insert into the decree a regulation regarding the implementation (or better: the temporal scope) of the proposed device, care must be taken to ensure that this regulation respects the principle of legal certainty. The phrase segment “to the extent that this withdrawal takes place without an agreement between the United Kingdom and the European Union on the matters covered by this decree,” currently appearing in Article 13 of the draft, appears problematic in this regard, as it does not clearly appear in what manner and by whom the compliance with this condition will be assessed.

The clerk, The President,
Helena Kets Marnix Van Damme

Notes
(1) Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the access to and exercise of the activities of insurance and reinsurance (Solvency II).
(2) Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution.

22 DECEMBER 2020. — Royal Decree implementing, for what concerns insurance undertakings, insurance intermediaries, ancillary insurance intermediaries and reinsurance intermediaries, Article 20, first paragraph, of the Law of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union

PHILIP, King of the Belgians,

To all who are now and hereafter shall be, Greetings.

Having regard to the Law of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union, Article 20, first paragraph;

Having regard to Opinion No. 66.043/1 of the Council of State, given on 24 May 2019, in application of Article 84, § 1, first paragraph, 2° of the coordinated laws on the Council of State;

Having regard to the opinions of the Financial Services and Markets Authority (FSMA) and the National Bank of Belgium, given respectively on 2 and 3 April 2019;

On the proposal of the Minister of the Economy, the Minister of Justice and the Secretary of State for Consumer Protection,

We have decided and decree:

CHAPTER I. — General Provisions

Article 1. For the purposes of this decree and the measures taken for its implementation, the following terms are understood:

1° “the Law of 4 April 2014”: the Law of 4 April 2014 concerning insurance;

2° “the Law of 13 March 2016”: the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings;

3° “the United Kingdom”: the United Kingdom of Great Britain and Northern Ireland;

4° “the date of the withdrawal of the United Kingdom from the European Union”: the date of the end of the transitional period granted to the United Kingdom in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community;

5° “insurance distribution”: the activities referred to in Article 5, 46° of the Law of 4 April 2014;

6° “reinsurance distribution”: the activities referred to in Article 5, 49° of the Law of 4 April 2014;

7° “the Bank”: the National Bank of Belgium as referred to in Article 15, 82° of the Law of 13 March 2016;

8° “the FSMA”: the Financial Services and Markets Authority, as referred to in Article 44 of the Law of 2 August 2002 concerning supervision of the financial sector and financial services.

L’arrêté envisagé ne peut pas entrer en vigueur avant la disposition qui lui procure un fondement juridique. L’article 20 de la loi du 3 avril 2019 entre en vigueur à la date qu’en exécution de l’article 46 de la même loi, le Roi fixera pour l’entrée en vigueur de la loi. Par conséquent, il y a lieu de préciser à l’article 13 du projet que l’arrêté entre en vigueur à la même date que celle à laquelle la loi du 3 avril 2019 entrera en vigueur.

S’il est en outre jugé utile d’insérer dans l’arrêté un règlement relatif à la mise en œuvre (ou mieux : le champ d’application temporel) du dispositif en projet, il faudra veiller à ce que ce règlement respecte le principe de la sécurité juridique. Le segment de phrase « dans la mesure où ce retrait s’effectue sans accord entre le Royaume-Uni et l’Union européenne sur les matières couvertes par le présent arrêté», figurant actuellement à l’article 13 du projet, paraît problématique à cet égard, dès lors qu’il n’apparait pas clairement de quelle manière et par qui le respect de cette condition sera apprécié.

Le greffier, Le président,
Helena Kets Marnix Van Damme

Notes
(1) Directive 2009/138/CE du Parlement européen et du Conseil du 25 novembre 2009 sur l’accès aux activités d’assurance et de réassurance et leur exercice (solvabilité II).
(2) Directive (UE) 2016/97 du Parlement européen et du Conseil du 20 janvier 2016 ‘sur la distribution d’assurances’.

22 DÉCEMBRE 2020. — Arrêté royal portant exécution, pour ce qui concerne les entreprises d’assurance, les intermédiaires d’assurance, les intermédiaires d’assurance à titre accessoire et les intermédiaires de réassurance, de l’article 20, alinéa 1er, de la loi du 3 avril 2019 relative au retrait du Royaume-Uni de l’Union européenne

PHILIPPE, Roi des Belges,

À tous, présents et à venir, Salut.

Vu la loi du 3 avril 2019 relative au retrait du Royaume-Uni de l’Union européenne, l’article 20, alinéa 1er ;

Vu l’avis n° 66.043/1 du Conseil d’État, donné le 24 mai 2019, en application de l’article 84, § 1er, alinéa 1er, 2° des lois coordonnées du 12 janvier 1973 sur le Conseil d’État ;

Vu les avis de l’Autorité des services et marchés financiers (FSMA) et de la Banque nationale de Belgique, rendus respectivement les 2 et 3 avril 2019 ;

Sur la proposition du Ministre de l’Économie, du Ministre de la Justice et de la Secrétaire d’État à la Protection des Consommateurs,

Nous avons arrêté et arrêtons :

CHAPITRE Ier. — Dispositions générales

Article 1er. Aux fins de l’application du présent arrêté et des mesures prises pour son exécution, on entend par :

1° « la loi du 4 avril 2014 » : la loi du 4 avril 2014 relative aux assurances ;

2° « la loi du 13 mars 2016 » : la loi du 13 mars 2016 relative au statut et au contrôle des entreprises d’assurance ou de réassurance ;

3° « le Royaume-Uni » : le Royaume-Uni de Grande-Bretagne et d’Irlande du Nord ;

4° « la date du retrait du Royaume-Uni de l’Union européenne » : la date de l’expiration de la période transitoire octroyée au Royaume-Uni dans l’Accord sur le retrait du Royaume-Uni de Grande-Bretagne et d’Irlande du Nord de l’Union européenne et de la Communauté européenne de l’énergie atomique ;

5° « distribution d’assurance » : l’activité définie à l’article 5, 46° de la loi du 4 avril 2014 ;

6° « distribution de réassurances » : l’activité définie à l’article 5, 49° de la loi du 4 avril 2014 ;

7° « la Banque » : la Banque nationale de Belgique, visée à l’article 15, 82° de la loi du 13 mars 2016 ;

8° « la FSMA » : l’Autorité des services et marchés financiers, visée à l’article 44 de la loi du 2 août 2002 relative à la surveillance du secteur financier et aux services financiers.

98178 BELGISCH STAATSBLAD — 31.12.2020 — MONITEUR BELGE

CHAPTER II. — Provisions applicable to insurance undertakings

Art. 2. § 1. This article applies to insurance undertakings subject to the law of the United Kingdom or the law of Gibraltar and which, on the date of the withdrawal of the United Kingdom from the European Union, were authorized to exercise insurance activities in Belgium in accordance with Articles 550 to 555 or 556 to 561 of the Law of 13 March 2016.

§ 2. In derogation of Article 584 of the Law of 13 March 2016, an undertaking referred to in paragraph 1 which, from the date of the withdrawal of the United Kingdom from the European Union, no longer concludes new insurance contracts in Belgium and terminates its activities in Belgium until it has obtained the legally required authorization, is authorized to continue the execution of insurance contracts concluded before that date without applying for the authorization referred to in the aforementioned article, only if it meets the following conditions:

1° it notifies the Bank of its intention to make use of the scheme provided for in this paragraph;

2° it undertakes not to conclude any new insurance contracts in Belgium, with the exception of the conversion of capital into an annuity or an annuity into capital of life insurance contracts and the continuation on an individual basis of occupational sickness insurance as provided for in Article 208 of the Law of 4 April 2014;

3° it provides the Bank with proof that it is authorized under its national legislation to exercise the insurance activities to which the Belgian insurance contracts relate;

4° it provides the Bank with proof that it complies with the legal and regulatory requirements applicable in the country of its seat, that it is not subject to a recovery plan, a short-term financing plan or a similar measure by the supervisory authorities of the United Kingdom or Gibraltar and that no remedial measure has been imposed on it in the United Kingdom or in Gibraltar;

5° it submits to the Bank a plan indicating how it will settle its obligations;

6° it undertakes to financially and operationally support its Belgian activities so that insurance benefits can be settled in the interest of the policyholders and beneficiaries;

7° it provides the Bank with the information enabling the latter to assess its insurance obligations in Belgium;

8° it appoints a representative in Belgium who meets the conditions of Article 593 of the Law of 13 March 2016.

The undertakings referred to in paragraph 1 regularly update the information referred to in the first paragraph — at least once a year and after any major change.

Furthermore, they inform the policyholders and beneficiaries as soon as possible that the continuity of insurance benefits is guaranteed and provide all useful information regarding this.

Art. 3. The Bank forwards the plan referred to in Article 2, § 2, 4°, to the FSMA.

Art. 4. With a view to compliance with the provisions of Article 2, the Bank may take all measures provided for in Articles 546 and 547 of the Law of 13 March 2016.

Furthermore, the Bank may require the undertaking to deposit an amount of assets sufficient to guarantee the proper execution of its obligations in Belgium with a financial intermediary in Belgium, to render these assets unavailable. This amount may not be higher than half of the absolute lower limit of the minimum capital requirement as defined in Article 189, § 1, 4° of the Law of 13 March 2016.

In case of non-compliance with the conditions listed in the second paragraph of this article and in Article 2, § 2, the Bank may also withdraw the benefit of the application of those provisions.

CHAPTER II. — Provisions applicable to insurance undertakings

Art. 2. § 1er. Le présent article est applicable aux entreprises d’assurance relevant du droit du Royaume-Uni ou du droit de Gibraltar qui, à la date du retrait du Royaume-Uni de l’Union européenne, étaient autorisées à exercer des activités d’assurance en Belgique conformément aux dispositions des articles 550 à 555 ou 556 à 561 de la loi du 13 mars 2016.

§ 2. Par dérogation à l’article 584 de la loi du 13 mars 2016, une entreprise visée au paragraphe 1er qui, à partir de la date du retrait du Royaume-Uni de l’Union européenne cesse de souscrire de nouveaux contrats et met fin à ses activités en Belgique tant qu’elle n’a pas obtenu l’agrément légalement requis, n’est autorisée à poursuivre l’exécution des contrats d’assurance conclus avant cette date sans solliciter l’octroi de l’agrément visé à l’article précité que si elle satisfait aux conditions suivantes :

1° elle notifie à la Banque son intention de bénéficier du régime prévu par le présent paragraphe ;

2° elle s’engage à ne plus conclure de nouveaux contrats d’assurance en Belgique, à l’exception de la conversion du capital en rente ou de la rente en capital des contrats d’assurance sur la vie et de la continuation à titre individuel des assurances maladie liées à l’activité professionnelle telle que prévue par l’article 208 de la loi du 4 avril 2014 ;

3° elle fournit à la Banque la preuve qu’elle est habilitée en vertu de sa législation nationale à pratiquer les activités d’assurance dont relèvent les contrats d’assurance belges ;

4° elle fournit à la Banque la preuve qu’elle est en situation régulière au regard des exigences légales et réglementaires applicables dans le pays de son siège social, qu’elle n’est pas soumise à un plan de redressement, un plan de financement à court terme ou une mesure équivalente de la part des autorités de contrôle du Royaume-Uni ou de Gibraltar et qu’elle ne fait pas l’objet d’une mesure d’assainissement au Royaume-Uni ou à Gibraltar ;

5° elle présente à la Banque un plan précisant la manière dont elle entend procéder à la liquidation de ses engagements ;

6° elle s’engage à supporter financièrement et opérationnellement ses activités belges afin que les prestations d’assurance soient liquidées dans l’intérêt des preneurs et bénéficiaires ;

7° elle fournit à la Banque les informations lui permettant d’évaluer ses engagements d’assurance en Belgique ;

8° elle désigne, en Belgique, un représentant répondant aux conditions de l’article 593 de la loi du 13 mars 2016.

Les entreprises visées au paragraphe 1er mettent à jour régulièrement et, au minimum une fois par an ou après toute modification significative, les informations visées à l’alinéa 1er.

Elles veillent, en outre, à informer dans les meilleurs délais les preneurs et bénéficiaires d’assurance de ce que la continuité des prestations d’assurance est assurée et fournissent toutes informations utiles à cet égard.

Art. 3. La Banque communique à la FSMA, le plan visé à l’article 2, § 2, 4°.

Art. 4. En vue du respect des dispositions de l’article 2, la Banque peut prendre toutes les mesures prévues par les articles 546 et 547 de la loi du 13 mars 2016.

En outre, la Banque peut imposer à l’entreprise qu’elle dépose auprès d’un intermédiaire financier en Belgique de manière à les rendre indisponibles, un montant d’actifs suffisant destiné à garantir la bonne exécution de ses engagements en Belgique. Ce montant ne peut être supérieur à la moitié du seuil absolu du minimum de capital requis prévu à l’article 189, § 1er, 4° de la loi du 13 mars 2016.

En cas de violation des conditions énumérées à l’alinéa 2 du présent article et à l’article 2, § 2, la Banque peut également retirer le bénéfice de cette disposition.

BELGISCH STAATSBLAD — 31.12.2020 — MONITEUR BELGE 98179

Art. 5. Articles 2 to 4 also apply to the insurance undertakings referred to in Article 2, § 1, who have applied for authorization with the Bank in accordance with Articles 584 et seq. of the Law of 13 March 2016, until such authorization is granted.

Art. 6. Articles 2 to 4 do not apply to insurance undertakings that meet the conditions of Article 2, § 1, insofar as they cover risks located in Belgium relating to:
1° maritime shipping, commercial air transport, launching of and freight transport by spacecraft (including satellites), where the following is covered in full or in part: the goods transported, the vehicle transporting the goods, and the liability arising therefrom; 2° international customs transit of goods.
The undertakings referred to in this article may cover the risks referred to in the first paragraph in Belgium through a branch or without establishment in Belgium.

CHAPTER III. — Provisions applicable to insurance, ancillary insurance, and reinsurance intermediaries

Art. 7. This Chapter applies to insurance, ancillary insurance, and reinsurance intermediaries subject to the law of the United Kingdom or the law of Gibraltar, who, on the date of the withdrawal of the United Kingdom from the European Union, were authorized to carry on an activity of insurance or reinsurance distribution in Belgium in accordance with Article 271 of the Law of 4 April 2014.

Art. 8. § 1. By way of derogation from Article 259, § 1, third paragraph, of the Law of 4 April 2014, the intermediaries referred to in Article 7 may continue to carry on their activity of insurance or reinsurance distribution in Belgium with respect to insurance or reinsurance contracts concluded before the date of the withdrawal of the United Kingdom from the European Union, without being registered for this purpose in the register of insurance and ancillary insurance intermediaries kept by the FSMA or in the register of reinsurance intermediaries kept by it. The authorization referred to in the first paragraph applies for a maximum period of 18 months, calculated from the date of the withdrawal of the United Kingdom from the European Union.

§ 2. The intermediaries referred to in paragraph 1 who intend to continue their activity in Belgium under the conditions set out in this article must notify the FSMA no later than two months after the withdrawal of the United Kingdom from the European Union.
They submit to the FSMA a plan clarifying how they intend to cease their activity of insurance or reinsurance distribution in Belgium before the period set in paragraph 1, second paragraph, expires.
They also provide the FSMA with proof that they are authorized under their national legislation to carry on an activity of insurance or reinsurance distribution, and that they are in compliance with the applicable legal and regulatory requirements in the country of their registered office.
The intermediaries referred to in Article 7 update the information referred to in the preceding paragraphs at the frequency and in the manner determined by the FSMA.

§ 3. The intermediaries referred to in Article 7 to whom the provisional authorization referred to in paragraph 1 has been granted shall, upon request of the FSMA, provide all data regarding the insurance or reinsurance distribution activity they carry on in Belgium, and in particular all data regarding the insurance or reinsurance contracts they manage or execute.
The insurance undertakings referred to in Article 2, § 1, for whom the scheme referred to in Article 2, § 2, applies, and which also carry on an activity of insurance distribution in Belgium without the intervention of an intermediary, shall, upon request of the FSMA, provide all data regarding the insurance or reinsurance distribution activity they carry on in Belgium without the intervention of an intermediary, and in particular all data regarding the insurance or reinsurance contracts to which that distribution activity relates.

Art. 9. The FSMA may impose on the intermediaries referred to in Article 7 and on the insurance undertakings referred to in Article 2, § 1, for whom the scheme referred to in Article 2, § 2, applies, and which also carry on an activity of insurance distribution in Belgium without the intervention of an intermediary, all measures intended to safeguard the rights of policyholders, insured persons, and beneficiaries of insurance and reinsurance contracts. Those measures include in particular the possibility for the FSMA to order the intermediary to transfer its insurance or reinsurance distribution activity in full or in part, or to terminate the contracts linking them to the policyholders, insured persons, and beneficiaries of insurance and reinsurance contracts.

Art. 10. Articles 8 and 9 also apply to the intermediaries referred to in Article 7 who have applied for registration in the register of insurance and ancillary insurance intermediaries kept by the FSMA or in the register of reinsurance intermediaries kept by it, in accordance with Article 259, § 1, third paragraph, of the Law of 4 April 2014, and this until the moment of their registration in that register.

Art. 11. Articles 304, 312, 314, 315, and 319 of the Law of 4 April 2014 apply to the intermediaries referred to in Article 7 to whom the provisional authorization referred to in Article 8, § 1, has been granted.
Articles 304, 310, 313, § 1, 314, 315, and 319 of the Law of 4 April 2014 apply to the insurance undertakings referred to in Article 2, § 1, which carry on an activity of insurance distribution in Belgium, and for whom the scheme referred to in Article 2, § 2, applies.
In those provisions, "the United Kingdom or Gibraltar" must be read instead of "the Member State of origin", and "competent authorities of the United Kingdom or of Gibraltar" instead of "authorities of the Member State of origin" or "competent authorities of the Member State of origin".

Art. 12. By way of derogation from Article 259, § 2, of the Law of 4 April 2014, insurance or reinsurance distributors who have an establishment in Belgium or who carry on their activities there without being established there may rely on the intermediaries referred to in Article 7, insofar as the transitional scheme referred to in Article 8 applies.

CHAPTER IV. — Final Provisions

Art. 13. This Decree enters into force on the date of entry into force of Article 20 of the Law of 3 April 2019 concerning the withdrawal of the United Kingdom from the European Union.

Art. 14. The Minister responsible for the Economy and the Minister responsible for Justice are each charged, insofar as he is concerned, with the implementation of this Decree.
Given in Brussels, 22 December 2020.

FILIP
By the King:
The Minister of the Economy,
P.-Y. DERMAGNE
The Minister of Justice,
V. VAN QUICKENBORNE
The State Secretary for Consumer Protection,
E. DE BLEEKER

Royal Decree of 22 December 2020 implementing Article 20(1) of the Act of 3 April 2019 on the withdrawal of the United Kingdom from the European Union for insurance undertakings and intermediaries

Lineage: In force

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