State Ordinance on the Supervision of the Insurance Business

AB 2000 no. 82 CENTRAAL WETTENREGISTER 11 januari 2017 * ==================================================================== Intitulé : LANDSVERORDENING houdende regels inzake het toezicht op het verzekeringsbedrijf Citeertitel: Landsverordening toezicht verzekeringsbedrijf Vindplaats : AB 2000 no. 82 Wijzigingen: AB 2012 no. 55 (inwtr. 2012 61); AB 2014 no. 11 (inwtr. AB 2014 no. 12); AB 2016 no. 53 (inwtr. AB 2016 no. 62) ==================================================================== HOOFDSTUK I Algemene bepalingen § 1. Definities Artikel 1 In these State Ordinance and the provisions based thereon are understood:
life insurance contract: an insurance agreement for the payment of monetary benefits in connection with the life or death of a human being; non-life insurance contract: an insurance agreement, other than a life insurance contract; life insurance business: the closing and settlement of life insurance contracts as a business for one's own account, even if profit is not intended; non-life insurance business: the closing and settlement of non-life insurance contracts as a business for one's own account, even if profit is not intended; insurance business: the life insurance business or the non-life insurance business; insurer: anyone who exercises the insurance business; qualified participation: a direct or indirect interest of more than ten percent of the issued share capital of an insurer or the direct or indirect exercise of more than ten percent of the voting rights in an insurer or the direct or indirect exercise of comparable control; money laundering: a crime as referred to in Articles 2:404, 2:405 and 2:406 of the Criminal Code of Aruba; terrorist financing: the crime referred to in Article 2:55 of the Criminal Code of Aruba; accountant: a person who does not have an employment relationship with the company or institution, being a registered accountant or an accountant-administration consultant regarding whom a note has been placed as referred to in Article 36, second paragraph, item i, of the Dutch Act on the Accountancy Profession (Stb. 2012, 680); establishment: headquarters, agency or branch, as well as any other durable presence of an insurer on the territory of a state in the form of a facility, managed by the insurer's own staff or by an independent person authorized to exercise the insurance business on behalf of the insurer; branch: one or more parts without legal personality of an insurer; the Bank: the Central Bank of Aruba; Court: the Court of First Instance of Aruba; Minister: the Minister of Finance. § 2. Scope Artikel 2

1. The Bank exercises supervision over insurers established under Aruban law and over the branches and agencies in Aruba of insurers established outside Aruba.
2. An insurer established under Aruban law has the legal form of a public limited company, a private limited liability company, an Aruban exempted company, or a mutual insurance company.
3. The Bank determines whether an act or a combination of acts constitutes the exercise of the life insurance business or the non-life insurance business, and whether an act or combination of acts constitutes the exercise of the insurance business from an establishment in Aruba.
4. By State Decree, containing general measures, categories of insurers may be designated, to which this State Ordinance is not applicable in whole or in part, after hearing the Bank.
5. The Establishment Ordinance for Businesses (AB 1990 no. GT 55) is not applicable to an insurer.
   Artikel 3
6. The non-life insurance business is distinguished into five loss groups, namely:
   a. accident and sickness insurance; b. motor vehicle insurance;
   c. marine, transport and aviation insurance;
   d. insurance against fire damage and other damage to goods; e. other non-life insurance.
7. If in a dispute the nature of a non-life insurance contract plays a role or can play a role, the Bank determines, at the request of the most ready party, to which of the loss groups mentioned in the first paragraph a non-life insurance contract belongs.
   Artikel 4
8. The Bank may impose restrictions and attach instructions and conditions to the permits, permissions, or exemptions issued by it in the context of the execution of this State Ordinance.
9. The Bank may grant exemption from instructions set by or pursuant to this State Ordinance, provided that the interests of the policyholder, the insured, or other entitled persons to a payout do not, in its opinion, oppose this.
10. The Bank decides within thirteen weeks after the date of receipt of a complete application on that application. If the Bank has requested additional data, this period begins to run from the date of receipt of this additional data.

HOOFDSTUK II
De toegang tot het verzekeringsbedrijf
§ 1. Algemeen
Artikel 5

1. It is prohibited to approach the public in or from Aruba without a permit from the Bank for the direct or indirect exercise of the insurance business.
2. A permit is granted for the exercise of either the life insurance business or the non-life insurance business. A permit for the exercise of the non-life insurance business is granted per loss group.
   § 2. Vergunningsaanvraag
   Artikel 6
3. The application for the issuance of a permit as referred to in Article 5, first paragraph, is addressed to the Bank and contains at least information regarding:
   a. the identity, antecedents, and a certificate of good conduct, as well as other data to be determined by the Bank, on the basis of which the Bank can determine the reliability and suitability of:
   1°. the directors and other persons who determine or co-determine the policy of the applicant; 2°. the members of the board of commissioners or of the body of the applicant that has a task similar to that of a board of commissioners; b. the identity, antecedents, and a certificate of good conduct, as well as other data to be determined by the Bank, on the basis of which the Bank can determine the reliability of those who hold a qualified participation in the applicant and, if the holder of a qualified participation is a legal entity, of the persons who determine or co-determine the policy of this legal entity, as well as the extent of the respective qualified participation;
   c. an annual account or opening balance sheet, which must be accompanied by a certificate of fairness of the data therein, signed by an accountant;
   d. a program of activities that the applicant intends to perform; e. the intended administrative and organizational structure, including the financial administration and internal control; f. the deed of incorporation, statutes, and regulations of the applicant.
4. If the applicant is part of a group, data regarding the formal and factual control structure within the group and a list of names of those who determine or co-determine the policy of the group must also be submitted.
5. An applicant who intends to conclude agreements to cover the legal liability arising from the use of motor vehicles must attach to its application a declaration signed by it that its insurance conditions meet the requirements set forth in the State Ordinance on Motor Vehicle Liability (AB 1999 no. GT 12).
6. The Bank decides within thirteen weeks after the date of receipt thereof on an application. If the Bank has requested additional data related to the permit application, this period begins to run from the date of receipt of this additional data.
7. Exceeding the period referred to in the fourth paragraph is equated with a refusal to grant the permit.
   § 3. Vergunningsvoorwaarden
   Artikel 7
   The Bank grants a permit, as referred to in Article 5, first paragraph, provided that it has become apparent that the following conditions are met:
   a. the daily policy of the applicant is determined by at least one natural person; b. the applicant has, insofar as it is a legal entity, a board of commissioners or a similar body, consisting of at least three natural persons;
   c. the Bank is of the opinion that the reliability of one or more persons, referred to in Article 6, first paragraph, item a, is beyond doubt;
   d. the Bank is of the opinion that the suitability of one or more of the persons, referred to in Article 6, first paragraph, item a, individually or collectively, is sufficient in connection with the exercise of the insurance business or the exercise of the respective function at the insurer; e. the Bank is of the opinion that the reliability of a holder of a qualified participation in the applicant or, if the holder of a qualified participation is a legal entity, of the persons who determine or co-determine the policy of this legal entity, is beyond doubt, or that otherwise, due to a qualified participation in the applicant, there is no or could be undesirable influence on the policy of the applicant; f. the declaration, referred to in Article 6, first paragraph, item c, implies that the annual account or opening balance sheet gives a true and fair view of the size and composition of the assets of the applicant; g. the applicant is, based on the data as referred to in Article 6, first paragraph, items d and e, able to carry out its intentions or to meet the requirements imposed on it by virtue of supervision; h. the granting of a permit to the applicant does not lead to an undesirable development of the insurance sector or to a circumstance that could cause this;
   i. the applicant has a minimum solvency margin as referred to in Article 14.

HOOFDSTUK III
Intrekking van de vergunning
Artikel 8

1. The Bank withdraws a permit as referred to in Article 5, first paragraph, if the insurer:
   a. requests withdrawal; b. has ceased the exercise of the life insurance business or the business operation in the relevant loss group.
2. The Bank may withdraw a permit as referred to in Article 5, first paragraph, if the insurer:
   a. no longer meets the instructions set by or pursuant to this State Ordinance for obtaining the permit; b. in the opinion of the Bank, fails to comply with the legal instructions applicable in Aruba or abroad regarding the exercise of the insurance business;
   c. does not comply with an instruction as referred to in Article 15, first paragraph;
   d. has not commenced business operations within six months after the date of issuance of the permit; e. in the opinion of the Bank, does not or insufficiently comply with the rules set by or pursuant to the State Ordinance on the Prevention and Combating of Money Laundering and Terrorist Financing (AB 2011 no. 28) or another legal regulation regarding the prevention and combating of money laundering and terrorist financing. Artikel 9
3. The withdrawal, referred to in Article 8, only becomes effective after the decision thereto has become final. Once the withdrawal has become effective, the Bank makes the decision known in the Landscourant of Aruba.
4. The insurer settles the part of its business for which the permit was issued within a period to be determined by the Bank. During this period, the insurer is equated with an insurer that has a permit as referred to in Article 5, first paragraph, for the application of this State Ordinance.

HOOFDSTUK IV
Toezicht op de uitoefening van het verzekeringsbedrijf § 1. Bestuurlijke en administratieve organisatie Artikel 10

1. The Bank may give guidelines to insurers regarding their administrative organization and internal business management, including financial administration and internal control.
2. The guidelines, referred to in the first paragraph, may relate to the execution of instructions in other State Ordinances.
3. The Bank may give instructions to an insurance business regarding the manner in which guidelines as referred to in the first paragraph are executed.
   Artikel 10a
4. An insurer conducts adequate policy for sound corporate governance and organizes its corporate governance structure such that sound corporate governance is guaranteed.
5. The policy and structure as referred to in the first paragraph, address in any case:
   a. the recording and content of the tasks, responsibilities, and working methods of the board of directors and the board of commissioners; b. the suitability, both individually and collectively, of the directors and commissioners;
   c. the establishment and execution of a clear strategy and objectives;
   d. the establishment, execution, monitoring, and if necessary, adjustment of the overall risk policy; e. the systematic control on the management of risks associated with business activities; f. the adequate information provision to the board of directors and the board of commissioners; g. careful and honest decision-making; h. the remuneration of the directors and commissioners;
   i. the independence of the commissioners;
   j. the role and responsibilities of the shareholders of the company.
6. The Bank may give guidelines to insurers regarding the policy and structure as referred to in the first paragraph.
   Artikel 10b
7. An insurer has written procedures for the careful and consistent handling of complaints within a reasonable time.
8. The Bank may give guidelines to insurers regarding the first paragraph.

§ 2. Staten
Artikel 11

1. The insurer sends statements to the Bank within six months after the end of each financial year, which give a clear picture of the management conducted by the insurer and its financial position.
2. The insurer accompanies the statements with a certificate of fairness from an accountant. To prove that the statements have been examined by him, or, if they concern statements as referred to in the third paragraph that were involved in his examination, the accountant certifies the statements. The insurer authorizes the accountant in writing in the assignment to examine to provide the Bank with all information that can reasonably be deemed necessary for the fulfillment of the task imposed on the Bank by or pursuant to this State Ordinance.
3. To the extent applicable, one of the statements includes the actuarial report, which is accompanied by a declaration from the actuary. With his declaration, the actuary confirms that he has satisfied himself that the provisions mentioned in the actuarial report were correctly established. He is authorized to further explain his declaration or to make a reservation on any point.
4. The Bank establishes the models of the statements, referred to in the first paragraph.

§ 3. Jaarverslag
Artikel 12

1. An insurer submits its annual account and annual report to the Bank annually within six months after the end of the financial year. The annual report gives a true and fair view of the position on the balance sheet date and the course of events during the financial year.
2. The annual account and annual report of an insurer with its seat outside Aruba concern the entire business.

§ 4. Technische voorzieningen
Artikel 13

1. An insurer maintains sufficient technical provisions that are fully covered by values. The Bank may object to the nature and valuation of these values, to which objection the insurer must comply without delay.
2. The Bank may give general guidelines regarding the content and extent of the technical provisions, referred to in the first paragraph.

§ 5. Solvabiliteitsmarge
Artikel 14

1. An insurer that exercises the life insurance business has a solvency margin that amounts to eight percent of the provisions for insurance liabilities at the end of the previous financial year, without taking into account the reinsurance of these liabilities.
2. An insurer that exercises the non-life insurance business has a solvency margin that is equal to the highest result of one of the following calculations:
   a. fifteen percent of the gross premium booked in the previous financial year, or b. fifteen percent of the average gross losses booked in the past three financial years.
3. The Bank may give general guidelines regarding the solvency margin, which may indicate, among other things, what amount of solvency margin is to be maintained at least.
4. By State Decree, containing general measures, special solvency margins may be established for certain categories of insurers.

§ 6. Structuurtoezicht
Artikel 14a

1. It is prohibited for a natural person or legal entity without the permission of the Bank:
   a. to hold, acquire, or increase a qualified participation in an insurer; b. to exercise any control, associated with a qualified participation in an insurer.
2. The Bank grants the requested permission as referred to in the first paragraph, unless the Bank is of the opinion that the reliability of the applicant or, if the applicant is a legal entity, of the persons who determine or co-determine the policy of this legal entity, is not beyond doubt, or that otherwise, due to the qualified participation in the company or institution, there is or could be undesirable influence on the policy of the company or institution.
3. If holding, acquiring, or increasing a qualified participation in an insurer has been carried out without having obtained permission as referred to in the first paragraph for that act or without having observed the restrictions set with the permission, the natural person or legal entity in violation must undo the carried out act within a period to be determined by the Bank, or otherwise observe the restrictions. This obligation ceases if permission is subsequently granted for the respective act, or if the restrictions not observed are withdrawn.
4. If the exercise of any control, associated with a qualified participation in an insurer, takes place without having obtained permission for that act, or without having observed the restrictions or conditions set by a permission granted by the Bank, a decision made jointly by the exercised control is voidable by the Court upon request of the Bank, if the decision would have been different or not made without the exercise of the respective control, unless permission is subsequently granted before the time of the ruling, or if the restrictions or conditions not observed are subsequently complied with. The Court regulates, as necessary, the consequences of the voidability.
5. If a natural person or a legal entity does not comply with all instructions or conditions attached to a permission as referred to in the first paragraph, the Bank may set a period within which that natural person or legal entity must subsequently fulfill the non-complied instructions or conditions.
   Artikel 14b
6. Article 6, first paragraph, items a, b, f, and second, fourth, and fifth paragraphs, apply mutatis mutandis to an application for the granting of a permission as referred to in Article 14a, first paragraph.
7. The granting of a permission as referred to in Article 14a, first paragraph, is announced in the Landscourant of Aruba, as well as in one or more newspapers to be determined by the Bank, unless the Bank is of the opinion that the publication would lead or could lead to disproportionate advantage or disadvantage to those involved in the decision or third parties.
8. A permission as referred to in Article 14a, first paragraph, may be modified or withdrawn by the Bank in whole or in part:
   a. upon written request of the holder; b. if the data or documents provided to obtain the declaration have proven to be so incorrect or incomplete that a different decision would have been taken if the correct circumstances had been fully known during the assessment of the request;
   c. if not within the period referred to in Article 14a, fifth paragraph, all instructions or conditions set with the declaration are complied with;
   d. if the holder does not follow an instruction as referred to in Article 15b.
   In such cases, the second paragraph applies mutatis mutandis.
   Artikel 14c
9. A natural person or legal entity, whose qualified participation in an insurer changes such that the extent of this participation falls below 10, 20, 33, or 50 percent, notifies the Bank in writing thereof.
10. An insurer notifies the Bank in writing in the month of July of each year of the identity of every natural person or legal entity that holds a qualified participation in that institution, insofar as these data are known to it. Furthermore, an insurer notifies the Bank in writing as soon as it becomes known to it of every acquisition or disposal of, or mutation in a qualified participation.