Royal Decree of 31 July 2020 Approving the Regulation of the National Bank of Belgium of 12 May 2020 on the Location for the Storage of Insurance or Reinsurance Documents

Royal Decree of 31 July 2020 Approving the Regulation of the National Bank of Belgium of 12 May 2020 on the Location for the Storage of Insurance or Reinsurance Documents (Official Gazette 11 September 2020 Unofficial Coordination 11 September 2020)

Royal Decree of 31 July 2020 Approving the Regulation of the National Bank of Belgium of 12 May 2020 Concerning the Storage Location of Insurance or Reinsurance Documents (Moniteur Belge 11 September 2020 Unofficial Coordination 11 September 2020)

PHILIPPE, King of the Belgians,
To all, present and future, Greetings.

FILIP, King of the Belgians,
To all who are now and hereafter shall be, Our Greetings.

Having regard to the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium, Article 12bis; Having regard to the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings, Articles 76 and 588, § 1, 2°; Having regard to the Law of 4 April 2014 on insurance, Article 14; On the proposal of the Minister of Economy and Consumers, We have decided and decide:

Article 1. The Regulation of the National Bank of Belgium on the location for the storage of insurance or reinsurance documents, annexed to this Decree, is approved.

Article 2. The Minister responsible for the Economy is charged with the execution of this Decree.

Given at Brussels, 31 July 2020
By the King:
Minister of Economy and Consumers,
Nathalie MUYLLE

Regulation of the National Bank of Belgium of 12 May 2020 on the Location for the Storage of Insurance or Reinsurance Documents

The National Bank of Belgium,
Having regard to the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium, Article 12bis; Having regard to the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings, Articles 76 and 588; Having regard to the Law of 4 April 2014 on insurance, Article 14; Having regard to the consultation with the FSMA and with the professional union of insurance and reinsurance companies, Assuralia, Decrees:

Section I. — Definitions

Article 1. For the purposes of this Regulation, the following terms shall be understood as:

1° Bank: the National Bank of Belgium;

2° electronic storage: storage on a digital, photographic, microphotographic, magnetic or optical medium;

3° insurance or reinsurance documents: all documents relating to the activities of insurance or reinsurance undertakings corresponding to the originals. This includes in particular (i) insurance or reinsurance contracts (policies and endorsements), (ii) letters sent to policyholders by these undertakings and (iii) prudential reporting required by or pursuant to the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings for the purposes of prudential supervision and (iv) reporting required by or pursuant to the Law of 4 April 2014 on insurance;

4° EEA: European Economic Area;

5° insurance or reinsurance undertakings: insurance or reinsurance undertakings under Belgian law within the meaning of Article 5, 1°, of the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings, including their branches established abroad, as well as branches established in Belgium of insurance undertakings subject to the law of a third country;

6° FSMA: the Financial Services and Markets Authority;

7° GDPR or "General Data Protection Regulation": Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;

8° Law of 13 March 2016: the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings;

9° Law of 4 April 2014: the Law of 4 April 2014 on insurance;

10° originals: all paper or electronic documents as well as digital or other copies (on a photographic, microphotographic, magnetic, electronic or optical medium) of paper documents insofar as these copies are equated with the originals pursuant to a legal provision;

11° third country: a State that is not a party to the EEA Agreement;

12° Delegated Regulation 2015/35: the Commission Delegated Regulation of 10 October 2014 supplementing Directive 2009/138/EC of the European Parliament and of the Council on the access to and exercise of the activities of insurance and reinsurance;

13° registered office: (i) the registered office of the Belgian insurance or reinsurance undertaking or its actual seat located in Belgium or (ii) the operating seat located in an EEA Member State of the branch of the Belgian insurance or reinsurance undertaking or (iii) the operating seat located in Belgium of the Belgian branch of the insurance or reinsurance undertaking subject to the law of a third country.

Section II — Files on the storage of insurance or reinsurance documents at a location other than the registered office and subject to a simplified authorization procedure

Sub-section 1 – Electronic Storage

Article 2. § 1. Insurance or reinsurance undertakings that intend to store their insurance or reinsurance documents electronically in a data center or a "cloud" located at a place other than their registered office, which is located in Belgium or in the EEA, may benefit from a simplified authorization procedure if they meet the following conditions:

1. insurance or reinsurance undertakings have permanent access to the documents stored in the data center or the "cloud";

2. insurance or reinsurance undertakings are able to respond in a complete and adequate manner and quickly (i.e., within two working days from the request) to access requests from the Bank, the FSMA or the Belgian judicial authorities;

3. insurance or reinsurance undertakings retain control over significant consequences regarding their risk profile, even if these depend on decisions taken by the service provider at the level of the data center or the "cloud". This means that insurance or reinsurance undertakings can, in the event of significant changes to the data center or the "cloud", terminate the contract and transfer the relevant insurance or reinsurance documents to another system before the aforementioned changes are introduced if they do not accept them;

4. regarding insurance or reinsurance documents, the data center or the "cloud" (i) guarantees the integrity and intactness of the documents stored therein and their availability, (ii) guarantees the confidentiality of insurance documents and the protection of personal data in accordance with the GDPR and (iii) meets the prudential expectations issued by the Bank regarding IT security and continuity; and

5. if the storage of insurance or reinsurance documents is entrusted to a third party, an agreement is concluded between the two parties to regulate the modalities of the storage of the documents and the rights and obligations related thereto.

§ 2. To benefit from this simplified authorization procedure, insurance or reinsurance undertakings must submit a file to the Bank comprising (i) a description of how the documents will be stored and (ii) a certificate from the President of the management committee of the undertaking concerned confirming that the conditions set out in § 1 are met.

If electronic storage is subcontracted (in particular of the "cloud" type), this file may form part of the notification of critical or important subcontracting to be submitted to the Bank pursuant to Article 92 of the Law of 13 March 2016 and Article 274 of Delegated Regulation 2015/35. In addition to the elements that must be part of any subcontracting file, the file mentioned in the first paragraph shall additionally include (i) the written agreement concluded with the service provider, (ii) a description of the insurance or reinsurance documents subject to the subcontracting (including but not limited to personal data), (iii) the EEA countries or regions where the insurance or reinsurance documents will be stored and (iv) in the case of "cloud" subcontracting, the "cloud" model (public/private/hybrid/community).

The Bank may request the insurance or reinsurance undertaking to complete its file with information it deems necessary to rule on the application.

§ 3. When the storage concerns documents relating to insurance contracts taken out by Belgian insurers or, in the case of insurers subject to the law of a third country, documents relating to contracts taken out by Belgian branches or relating to risks located in Belgium, the insurer must also submit this file to the FSMA pursuant to Article 14 of the Law of 4 April 2014. The Bank shall consult with the latter before ruling.

§ 4. The Bank shall rule within 8 weeks from the date of receipt of the file, provided that this file can be considered complete within the meaning of paragraph 2 and that the undertaking has also notified the FSMA in accordance with paragraph 3.

Upon expiration of this period and in the absence of notification to the undertaking of a decision by the Bank, an appeal may be lodged with the Council of State. In this latter case, the appeal shall be treated as if the application had been rejected.

§ 5. If an insurance or reinsurance undertaking begins to store its insurance or reinsurance documents at a location other than its registered office without having previously obtained the Bank's agreement, the Bank has the possibility of taking administrative measures or imposing administrative sanctions pursuant to the Law of 13 March 2016.

§ 6. In the event of a major change to the storage system compared to the information included in the initial file, insurance or reinsurance undertakings shall immediately inform the Bank and the FSMA.

Sub-section 2 – Paper Storage

Article 3. § 1. Insurance or reinsurance undertakings that intend to store their insurance or reinsurance documents in paper form at a location other than their registered office and insofar as that other location is located in Belgium or in the EEA may benefit from a simplified authorization procedure if they meet the following conditions:

1. documents relating to the same portfolio of activities are stored in the same place;

2. the storage location(s) must be accessible to the Bank, the FSMA and the judicial authorities and must comply with protection measures

against fire to ensure the integrity of the documents;
3. if not all documents are equally kept on IT media located in Belgium or in the EEA offering security and confidentiality guarantees, the place(s) of conservation must be located in Belgium;
4. the security and continuity measures must be subject to periodic control by the insurance or reinsurance undertaking; and
5. in the event of outsourcing, an agreement is concluded between the two parties to regulate the keeping of documents and the rights and obligations relating thereto.

§ 2. To benefit from the simplified authorization procedure, insurance or reinsurance undertakings submit a file comprising (i) a description of the proposed conservation system and (ii) a certificate from the Chairman of the management committee of the undertaking concerned confirming that the conditions set out in § 1 are met.

If paper conservation is outsourced, this file may form part of the notification of critical or important outsourcing to be communicated to the Bank in application of Article 92 of the Law of 13 March 2016 and Article 274 of Delegated Regulation 2015/35. In addition to the elements that must be part of any outsourcing file, the file mentioned in the first paragraph shall also include (i) the written agreement concluded with the service provider, (ii) a description of the insurance or reinsurance documents subject to the outsourcing (including but not limited to personal data) and (iii) the list of countries or regions of the EEA in which the insurance documents will be kept.

The Bank may ask the insurance or reinsurance undertaking to complete its file with information it deems necessary to rule on the application.

§ 3. When the conservation concerns documents relating to insurance contracts taken out by Belgian insurers or, where the insurers are from a third country, documents relating to contracts taken out by Belgian branches or relating to risks located in Belgium, the insurer must also communicate this file to the FSMA in application of Article 14 of the Law of 4 April 2014.

The Bank will consult with the latter before ruling.

§ 4. The Bank rules within 8 weeks from the date of receipt of the file, provided that this file can be considered complete within the meaning of paragraph 2 and that the undertaking has also notified the FSMA in accordance with paragraph 3. Upon expiry of this period and in the absence of notification to the undertaking of a decision by the Bank, an appeal is available before the Council of State. In this latter case, the appeal is treated as if the application had been rejected.

§ 5. If the insurance or reinsurance undertaking begins to keep its insurance or reinsurance documents in a place other than its registered office without having previously obtained the Bank's agreement, the Bank has the possibility of taking administrative measures or administrative sanctions in application of the Law of 13 March 2016.

§ 6. In the event of a major change to the conservation system compared to the information included in the initial file, insurance or reinsurance undertakings must immediately inform the Bank and the FSMA.

Section III – Files on the conservation of insurance or reinsurance documents in a place other than the registered office and subject to the classic authorization procedure

Art. 4. § 1. When insurance or reinsurance undertakings decide to keep - electronically or on paper - their insurance or reinsurance documents in a place other than their registered office which does not meet the conditions referred to in Articles 2, § 1 and 3, § 1 above, they submit to the Bank an application for authorization to use the proposed conservation system (hereinafter, the "classic procedure").

§ 2. The authorization application referred to in § 1 must be accompanied by a detailed and comprehensive file containing the following information:

1. A description of the scope of the proposed conservation system;
2. The reasons why the undertaking considers it more appropriate that the documents be kept in a place other than the registered office;
3. A copy of the documents defining the rules applicable to the insurance or reinsurance document conservation system, notably, in the event of outsourcing, the written contract governing the relationship with the service provider;
4. The countries or regions where the insurance or reinsurance documents will be kept;
5. A description of the mechanisms in place to ensure that the insurance or reinsurance undertaking has permanent access to the insurance or reinsurance documents stored in the proposed conservation system and that these documents are accessible to the Bank, the FSMA and the judicial authorities;
6. A certificate from the Chairman of the management committee confirming that (i) the proposed conservation system is not likely to seriously compromise the quality of the governance system, unduly increase operational risk or harm the continuous provision of a satisfactory level of service to policyholders and (ii) the place(s) of conservation of the insurance or reinsurance documents guarantee the integrity and intactness of insurance documents, their availability, confidentiality and the protection of personal data in accordance with the GDPR, and meet the prudential expectations issued by the Bank regarding security and continuity as set out in its circulars published on its website;
7. In the event of outsourcing: (i) detailed information concerning the service provider, (ii) a description of the insurance or reinsurance documents subject to the outsourcing (including, but not limited to, personal data) and (iii) if it is "cloud" outsourcing, the relevant "cloud" model (public / private / hybrid / community).

If the conservation is outsourced, this file may form part of the notification of critical or important outsourcing to be communicated to the Bank in application of Article 92 of the Law of 13 March 2016 and Article 274 of Delegated Regulation 2015/35.

In cases where the place of document conservation is located in a third country, including at the registered office of a branch established outside the EEA of the insurance and/or reinsurance undertaking, the file must be supplemented by:

• Either the indication that there is an appropriate cooperation agreement between the Bank and the supervisory authority of the third country concerned and that this agreement provides for access by the Bank to the insurance or reinsurance documents, the premises and the staff, with a view to the proper exercise of the Bank's supervisory powers;
• Or proof that the insurance documents are accessible and auditable from a subsidiary or branch located in the EEA.

The Bank may ask the insurance or reinsurance undertaking to complete its file with information it deems necessary to rule on the application.

§ 3. When the conservation concerns documents relating to insurance contracts taken out by Belgian insurers or, where the insurers are from a third country, documents relating to contracts taken out by Belgian branches or relating to risks located in Belgium, the insurer must also communicate this file to the FSMA in application of Article 14 of the Law of 4 April 2014.

The Bank will consult with the latter before ruling.

§ 4. The Bank rules within 3 months from the date of receipt of the file, provided that this file can be considered complete within the meaning of paragraph 2 and that the undertaking has also notified the FSMA in accordance with paragraph 3.

Upon expiry of this period and in the absence of notification to the undertaking of a decision by the Bank, the Bank is deemed to have rejected the application and an appeal before the Council of State is available to the insurance or reinsurance undertaking.

§ 5. If the insurance or reinsurance undertaking begins to keep its insurance or reinsurance documents in a place other than its registered office without having previously obtained the Bank's agreement, the Bank has the possibility of taking administrative measures or administrative sanctions in application of the Law of 13 March 2016.

§ 6. In the event of a major change to the conservation system compared to the information included in the initial file, insurance and reinsurance undertakings must immediately inform the Bank and the FSMA.

Section IV - Entry into force

Art. 5. This Regulation shall enter into force on the day of entry into force of the Royal Decree approving it.

Brussels, 12 May 2020.
The Governor,

Explanatory Note

The decree that we have the honor to submit for the signature of Your Majesty provides for the approval of the regulation of the National Bank of Belgium of 12 May 2020 relating to the location for keeping insurance or reinsurance documents.

Article 76 of the Law of 13 March 2016 on the status and supervision of insurance or reinsurance undertakings provides that insurance or reinsurance undertakings keep documents relating to their activities at their registered office or at any other place previously authorized by the National Bank of Belgium (hereinafter, the Bank) in consultation with the FSMA.

Article 14 of the Law of 4 April 2014 on insurance, which has a more limited scope of application (cf. infra), also provides that Belgian insurers keep these documents at their head office and foreign insurers at the Belgian office of their branches, or at any other place previously approved by the FSMA and the Bank.

Taking into account recent technological developments and the fact that insurance or reinsurance documents are now very regularly kept in data centers or via "cloud" outsourcing, the Bank has decided to clarify its expectations regarding storage in a place other than the headquarters. The method of document storage remains free. However, it is noted that if the data centers are owned by a third party and in all cases for the use of "cloud", this constitutes outsourcing in the prudential sense, which also implies the application of the rules provided for in Article 92 of the Law of 13 March 2016.

The regulation submitted for approval (hereinafter, the regulation) pursues two objectives.

On the one hand, it aims to establish a simplified authorization procedure for the storage of documents in a place other than the headquarters of the insurance or reinsurance undertaking in cases where the undertaking meets criteria determined by the Bank (including, in particular, the fact that the undertaking must, except in exceptional cases, have permanent access to insurance or reinsurance documents). The main consequence of this procedure is that the Bank issues a decision within a shorter period: 8 weeks instead of 3 months for the classic procedure (time limit of order).

On the other hand, the regulation specifies the content of the file to be communicated to the Bank to receive authorization based on the classic procedure for all cases other than those allowing for simplified authorization (for example, when the storage of insurance or reinsurance documents is done, electronically or on paper, in a third country outside the European Economic Area). The Bank issues a decision within a period of 3 months (time limit of order).

Upon expiration of the two aforementioned deadlines (8 weeks / 3 months), the silence of the Bank is deemed to constitute a decision of refusal subject to appeal before the Council of State.

If the Bank finds that the conditions for benefiting from the simplified authorization procedure are not met, it will inform the undertaking concerned.

To the extent necessary, it is specified that non-compliance with Article 76 of the Law of 13 March 2016 may lead to administrative measures or administrative sanctions. One thinks in particular of the possibility of imposing penalty payments.

The regulation concerns the storage of documents relating to the activities of insurance or reinsurance undertakings which have been defined as aiming at the originals of insurance or reinsurance contracts (policies and endorsements), letters sent to policyholders, and prudential reporting required by or pursuant to the Law of 13 March 2016 and reporting required by or pursuant to the Law of 4 April 2014 on insurance. By "originals", it is understood any paper document or any electronic document. In addition, this also covers digital copies or on another support (photographic, microphotographic, magnetic, electronic or optical support) of paper documents to the extent that these copies are assimilated to originals under a legal provision such as Article 14 of the Law of 4 April 2014, Article 71 of the Coordinated Law of 24 December 1996 on the organization of the public credit sector and the holding of participations of the public sector in certain private law financial companies, and Article XII.25 of the Code of Economic Law.

This scope of application is partly identical to that, more limited, of Article 14 of the Law of 4 April 2014 which concerns documents relating to insurance contracts taken out by Belgian insurers or, when it comes to insurers subject to the law of a third country, documents relating to contracts taken out by Belgian branches or relating to risks located in Belgium. It is for the FSMA and the Bank to ensure the correct respect of Article 14 of the Law of 4 April 2014.

When the storage of documents also concerns these contracts, insurance or reinsurance undertakings must communicate a specific file to each authority and the Bank and the FSMA will consult each other before rendering, each, their decision.

The regulation is therefore to be understood without prejudice to the competencies of the FSMA regarding the storage of the aforementioned documents.

Seen to be annexed to Our decree of 31 July 2020 approving the regulation of the National Bank of Belgium of 12 May 2020 relating to the location for keeping insurance or reinsurance documents.

By the King:
Minister of the Economy and Consumers,
Nathalie MUYLLE

Seen to be added to Our decree of 31 July 2020 approving the regulation of the National Bank of Belgium of 12 May 2020 concerning the storage location of insurance or reinsurance documents.

By Order of the King:
The Minister of Economy and Consumers,
Nathalie MUYLLE