Table of Contents
The insurance and reinsurance business in Luxembourg: statutory framework .................................................................. 1 The Luxembourg insurance supervisory authority (Commissariat aux Assurances)............................................... 1 Authorisation to conduct insurance business in Luxembourg... 2 Authorisation to conduct reinsurance business in Luxembourg.......................................................................... 2 Freedom of establishment and freedom to provide services .... 2 Requirements applicable to non-EEA insurance and reinsurance companies ............................................................ 3 Professional secrecy ................................................................ 4 Captive insurers and reinsurers................................................ 4 Insurance intermediaries .......................................................... 4 Professionals of the insurance sector....................................... 6 Life insurance ........................................................................... 6 Capitalisation bonds ................................................................. 6 Distance insurance policies ...................................................... 6 Financial aspects of insurance products in Luxembourg .......... 7 Reinsurance special purpose vehicles ..................................... 8 Contacts ................................................................................... 9
The insurance and reinsurance business in Luxembourg: statutory framework
The transposition of Directive 2009/138/EC of 25 November 2009 on the taking-up and pursuit of the business of insurance and reinsurance (the "Solvency II Directive") substantially changed the Luxembourg legal framework for the insurance sector. The Act of 6 December 1991 on the insurance sector, as amended, which provided a statutory framework for the provision of insurance and reinsurance services in Luxembourg, was repealed and replaced by a new act on the insurance sector dated 7 December 2015, as amended (the ''Insurance Act''). In addition, the Act of 27 July 1997 on insurance contracts (the "Insurance Contracts Act") and the Act of 8 December 1994 on the annual accounts of insurance and reinsurance undertakings were amended by another act of 7 December 2015.
The Luxembourg insurance supervisory authority (Commissariat aux Assurances)
The Luxembourg supervisory authority for the insurance sector is the Commissariat aux Assurances (the "Commissariat"). The Commissariat is responsible for supervising insurance and reinsurance business in Luxembourg, including the licensing and supervision of insurance and reinsurance undertakings,
insurance and reinsurance intermediaries, professionals of the insurance sector and certain pension funds.
management function, a compliance function, an internal audit function and an actuarial function.
All persons working for or who have worked for the Commissariat are bound by a duty of confidentiality, breach of which may result in imposition of the criminal sanctions set out in Article 458 of the Luxembourg Criminal Code. Pursuant to this duty, any confidential information such persons receive in connection with their work may not be disclosed under any circumstances, except in the cases provided for by law. For more information on the professional secrecy obligation applicable to other actors in the Luxembourg insurance sector and its recent overhaul, please refer to the "Professional secrecy" section of this brochure.
Authorisation to conduct insurance business in Luxembourg
Article 44 of the Insurance Act states that in order to carry out insurance business in or from Luxembourg an insurer must be authorised to do so by the Ministry of Finance.
In order to be licensed as an insurance undertaking, a company must meet the following main requirements: (i) it must take the corporate form of a public limited company (socit anonyme), a partnership limited by shares (socit en commandite par actions), a cooperative company (socit cooprative), a cooperative company organised as a public limited company (socit cooprative organise comme une socit anonyme), a European company (socit europenne), a mutual insurance association (association d'assurances mutuelles) or a European cooperative company (socit cooprative europenne); (ii) it must have its registered office and central administration in Luxembourg; (iii) its corporate purpose must be exclusively limited to insurance activities; (iv) it must fulfil minimum capital requirements, as set out in the Insurance Act; (v) it must be managed by professionals with a good reputation and adequate professional qualifications; and (vi) the Commissariat must be informed of the identity of any shareholders whose stake in the company represents 10% or more of the capital or voting rights or otherwise allows them to substantially influence the company's business.
Luxembourg insurance undertakings must have in place an effective system of governance which ensures sound and prudent management of the business. Such a system of governance shall provide for, amongst other things, a risk-
Authorisation to conduct reinsurance business in Luxembourg
Reinsurance is a means by which an insurance or reinsurance company insures itself against the risk of loss and consists of accepting risks transferred by an insurer or another reinsurer. This procedure allows the transferor to reduce its risk, thereby minimising the danger of a single large monetary loss.
The Insurance Act states that any reinsurance undertaking with its registered office in Luxembourg must be approved by the Ministry of Finance before it can commence activities in or from Luxembourg.
In Luxembourg, only undertakings whose corporate purpose is limited to the acceptance of risks ceded by insurance or reinsurance undertakings may be authorised to engage in reinsurance business. In other words, in principle, reinsurance companies in Luxembourg may not engage in direct insurance activities.
Approval by the Ministry of Finance is subject to the same conditions as those mentioned above for insurance undertakings.
Freedom of establishment and freedom to provide services
Freedom of establishment (i) Insurance undertakings
Pursuant to the principle of freedom of establishment, any insurance company with its registered office in Luxembourg which is authorised by the Ministry of Finance is entitled to establish a branch in another Member State. In order to do so, it must first notify the Commissariat and provide the latter with the following information: (i) the Member State where it intends to establish a branch, (ii) a scheme of operations setting out the types of business envisaged and the structural organisation of the branch, (iii) the address in the host Member State from which documents may be obtained and to which they may be delivered, and (iv) the name of the branch's agent, which must have sufficient powers to bind the insurance undertaking in dealings with third parties and to represent it in relations with the authorities and courts of the Member State where the branch is
located. The Commissariat will certify to the host Member State that the undertaking in question has the requisite solvency capital and minimum capital calculated in accordance with the Insurance Act.
The Commissariat will forward the abovementioned information to the competent authority of the host Member State within three months from receipt of a complete file and inform the insurance undertaking thereof.
Conversely, any insurance company with its registered office in another EEA Member State which is authorised by the supervisory authority of that Member State to conduct insurance activities is entitled to establish a branch in Luxembourg once the competent authority of the home Member State has provided the information listed above to the Commissariat.
(ii) Reinsurance undertakings
A Luxembourg reinsurance undertaking that wishes to establish a branch in another Member State must first notify the Commissariat and provide the latter with the information listed above.
A reinsurance undertaking with its registered office in another EEA Member State may likewise set up a branch in Luxembourg if it has been authorised to conduct reinsurance business in its home country and the competent authority of the home Member State has provided the information listed above to the Commissariat.
Freedom to provide services
(i) Insurance undertakings
Pursuant to the principle of freedom to provide services, an insurance company duly authorised in Luxembourg may provide insurance services in another Member State by notifying beforehand the Commissariat and indicating the nature of the risks it intends to cover or the commitments it intends to make. Within one month from receipt of such a notification, the Commissariat shall transfer to the competent authority of the Member State on whose territory the undertaking intends to conduct business further to the principle of freedom to provide services (i) a certificate attesting to the fact that the undertaking in question has the requisite solvency capital and minimum capital calculated in accordance with the Insurance Act, (ii) information on the classes of insurance the undertaking has
been authorised to offer, and (iii) information on the nature of the risks the undertaking intends to cover or the commitments it intends to make. At the same time, the Commissariat shall inform the insurance undertaking that it has transmitted this information to the competent authority of the host Member State. The insurance undertaking may commence activities in the host Member State with effect as from the date on which it is informed of this communication by the Commissariat.
Likewise, an insurance company authorised to do business in another Member State may provide insurance services in Luxembourg, without being established in Luxembourg, and cover risks or make commitments for which it has obtained approval in its home Member State once the competent authority of the home Member State has provided the Commissariat with the information mentioned in the preceding paragraph.
(ii) Reinsurance undertakings
Luxembourg reinsurance undertakings can carry out activities under the principle of freedom to provide services without having to fulfil further formalities.
Likewise, a reinsurance undertaking with its registered office in another EEA Member State may conduct reinsurance business in Luxembourg pursuant to the principle of freedom to provide services if it is authorised to conduct reinsurance business in its home country.
Requirements applicable to non-EEA insurance and reinsurance companies
Companies from non-EEA countries can conduct insurance or reinsurance business in Luxembourg through the establishment of a branch in Luxembourg, provided they have obtained an authorisation from the Ministry of Finance. This authorisation is subject to the following requirements, amongst others:
the company is authorised to exercise insurance or reinsurance activities in its home country;
the company has designated a representative, who must be approved by the Ministry of Finance;
the company has the solvency capital and minimum capital required by the Insurance Act; and
the company satisfies the governance requirements set out in the Insurance Act.
Insurance companies from non-EEA countries operating in Luxembourg are not deemed to conduct insurance activities in Luxembourg when the policyholder has taken the initiative of subscribing to the insurance contract at the conditions set out in the Insurance Act.
Reinsurance undertakings with their registered office in a nonEEA country are allowed to operate in Luxembourg without having to establish a branch but may not be treated more favourably than Luxembourg reinsurance undertakings.
The Commissariat is responsible for overseeing the business of non-EEA insurance and reinsurance companies conducted in and from Luxembourg.
The Act of 27 February 2018 amending inter alia the Insurance Act substantially modified the professional secrecy rules in the insurance sector and aligned them to the recently updated professional secrecy rules applicable to other financial sector actors, such as banks, financial sector professionals (professionnels du secteur financier) and payment institutions.
The reference to persons bound by the professional secrecy obligation, breach of which is sanctioned by Article 458 of the Luxembourg Criminal Code, has been simplified to include natural and legal persons established in Luxembourg that are subject to supervision by the Commissariat or a foreign supervisory authority (with respect to activity that falls within the scope of the Insurance Act) as well as members of their management and supervisory bodies, their employees and other persons performing services for such institutions. It should be noted that the professional secrecy obligation does not apply to reinsurers and pension funds subject to supervision by the Commissariat, pursuant to Article 300 of the Insurance Act.
It is significant that there are now more exemptions from the professional secrecy obligation, i.e. situations in which confidential information may be disclosed.
First, a new exemption has been introduced, pursuant to which information covered by the professional secrecy obligation can be disclosed to a Luxembourg-based entity that is itself: (i) supervised by the Commissariat, the Luxembourg financial sector regulator (Commission de Surveillance du Secteur Financier or CSSF) or the European Central Bank, (ii) bound by
a professional secrecy obligation the breach of which carries criminal sanctions, and (iii) bound by a service agreement with the disclosing party.
Second, another exemption has been introduced to allow disclosure to any entity (not only supervised ones) to which services are outsourced, its employees and similar persons. Unlike the abovementioned exemption, this one is contingent on agreement by the policyholder with: (i) the outsourcing, (ii) the type of information transferred in the framework of the outsourcing and (iii) the country where the outsourced service provider is based. The service provider must also be subject to a professional secrecy obligation or bound by a non-disclosure agreement.
The simplification and extension of the exemptions from the professional secrecy obligation listed above allow insurers to outsource operations in a more flexible manner.
Captive insurers and reinsurers
A captive insurer or reinsurer is an insurance or reinsurance company established for the specific purpose of insuring or reinsuring risks emanating from its parent company or affiliated entities. Using a captive insurer is a risk management technique whereby a business forms its own insurance subsidiary in order to cover its business-related risks. The term "captive" refers to the fact that the policyholder (the parent company or affiliated entity) owns the insurance company.
In Luxembourg, a captive insurer or reinsurer must be approved by the Ministry of Finance in order to conduct business and is subject to the rules applicable to insurance and reinsurance undertakings. However, since a captive insurer or reinsurer insures only the risks of its commercial or industrial parent company or affiliated entities, it has a different risk profile than an ordinary insurance or reinsurance undertaking. Consequently, Luxembourg law provides for certain exceptions to these rules, such as a lower capital requirement (EUR 1,200,000 rather than EUR 3,600,000).
The provisions of the Insurance Act on the sale of insurance and reinsurance products were recently overhauled, following the adoption of the Act of 10 August 2018 amending the Insurance Act and transposing into Luxembourg law the Insurance
Distribution Directive (2016/97EU) (the "IDD") which repealed the Insurance Mediation Directive (2002/92/EC).
In keeping with the IDD, the notion of "insurance mediation" has been replaced with "insurance distribution" and the definition extended to cover: (i) the provision of advice on insurance contracts; (iii) the performance of preparatory work for the conclusion of insurance contracts; (iv) the conclusion of insurance contracts or contribution to their management and execution (excluding the management of claims of an insurer or reinsurer on a professional basis as well as the assessment and settlement of such claims); and (v) provision of the following services in relation to insurance contracts in accordance with criteria selected by customers through a website or other media, when the customer is able to directly or indirectly conclude an insurance contract using a website or other media: (a) the provision of information on one or more insurance contracts, (b) the compilation of an insurance product ranking list, including price and product comparison, and (c) the provision of a discount on the price of an insurance contract.
Another important change is that the activities listed above are deemed insurance distribution even if they are carried out directly by an insurance company (i.e. without the involvement of an insurance intermediary). The Act of 10 August 2018 also introduced a new type of insurance intermediary, the so-called ancillary insurance intermediary, which offers insurance products complementary to another good or service and whose principal professional activity is not insurance distribution (e.g. travel agents that sell travel insurance).
Similar provisions were introduced with respect to reinsurance intermediaries.
Luxembourg intermediaries that carry out insurance transactions on behalf of third parties must be approved by the Ministry of Finance, with the exception of ancillary insurance intermediaries, which need only be included in the register of distributors. Approval may be granted to natural persons who serve as agents, insurance and reinsurance brokers or insurance subbrokers, or directors of brokerage companies as well as legal persons, such as insurance agencies or insurance and reinsurance brokerage firms. The bill introduces the possibility to request approval only for life insurance or non-life insurance activity, as applicable.
An agent or agency is a natural or legal person, other than an ancillary insurance intermediary, engaged in insurance mediation that acts as the representative of one or more insurance companies. Contractual relations between salaried agents and the insurance companies for which they work are governed by employment law. Contractual relations between non-salaried agents and the insurance companies that serve as their principals are governed by a written agency agreement between the parties.
An insurance broker is a natural person, other than an ancillary insurance intermediary, who manages an insurance brokerage company or acts for his or her own account or a legal person which, without being linked to one or more insurance companies, acts as an intermediary between policyholders and authorised insurance companies. Insurance brokers are their clients' representatives. They may be approved only if they are not linked to one or more insurance companies. The functions of an insurance broker and a reinsurance broker may be performed concurrently, provided the broker informs the Commissariat in advance.
The minimum required capital for insurance and reinsurance brokerage firms is set at EUR 50,000, raised to EUR 125,000 within five years from the firm's date of authorisation. Natural persons authorised as brokers must have capital of EUR 25,000, which is raised to EUR 50,000 within five years from the date of authorisation.
A Luxembourg insurance or reinsurance intermediary may exercise its activities in another Member State either through the establishment of a branch or further to the principle of freedom to provide services once it has notified its intention to do so to the Commissariat. Likewise, an intermediary authorised in another Member State shall be authorised to conduct business in Luxembourg under the principle of freedom to provide services or through the establishment of a branch, provided it has obtained an authorisation to do so in its home country and the competent authority in that country has notified the Commissariat.
A Luxembourg insurance or reinsurance intermediary may conduct activities in non-EEA countries through a branch or not, provided it notifies the Commissariat beforehand at the conditions set out in the Insurance Act.
Professionals of the insurance sector
The Luxembourg Act of 12 July 2013 introduced a new category of insurance professionals (professionels du secteur des assurances or "PIS"), classified as follows:
management companies for captive insurers; management companies for run-off insurance
undertakings; management companies for reinsurance undertakings; management companies for pension funds; authorised providers of actuarial services; insurance portfolio management companies; authorised providers of services related to the
governance of insurance and reinsurance undertakings; and claims handlers.
The abovementioned PIS require a prior authorisation from the Ministry of Finance. An authorisation will be granted only if certain conditions pertaining to the internal organisation and management of the PIS are fulfilled. The minimum capital required for a legal person PIS is EUR 50,000, raised to EUR 125,000 within five years from the date of authorisation. Natural person PIS (i.e. providers of actuarial services, providers of governance-related services to insurance and reinsurance undertakings, and claims handlers) must have minimum capital of EUR 25,000, raised to EUR 50,000 within five years of authorisation. In addition, each PIS must take out an insurance policy with an insurance undertaking authorised to offer civil liability insurance in Luxembourg.
Like insurance and reinsurance undertakings, legal person PIS must be effectively managed by a duly authorised natural person, have their central administration in Luxembourg and ensure the external audit of their annual accounts.
The creation of PIS has increased the outsourcing possibilities for Luxembourg insurance and reinsurance undertakings.
Pursuant to the Insurance Contracts Act, a life insurance policy is a contract according to which, in return for the payment of a fixed or variable premium, one party, the insurer, undertakes to provide another party, the policyholder, with a benefit determined in the contract should an uncertain event that affects the life,
physical integrity or family situation of the insured occur. The Insurance Contracts Act provides for different types of life insurance policies, depending on the type of risk being insured.
Thus, it is possible to have an insurance policy covering the death of the insured: under this type of policy, the risk covered is the death of the insured, and the insurer undertakes to pay the amount stipulated in the policy if the insured dies during the policy's period of validity.
It is also possible to take out an insurance policy covering the life of the insured: in this case, the risk covered is the survival of the insured for a determined period of time or until a given age. If this condition is met, the insurer must pay the amount stipulated in the contract to the beneficiary.
Finally, a so-called mixed policy covers both the risk of death and the risk of the insured still being alive at a certain point in time or at a given age.
A capitalisation bond is a bearer contract based on the capitalisation principle which entails a commitment by the insurer, in return for unique or periodic payments, to pay the investor the accrued capital specified in the contract or an amount determined based on the value or performance of assets linked to the contract.
Performance of the contract is not linked to the duration of the investor's life, and the investor does not insure his or her own life. According to the Insurance Contracts Act, a capitalisation bond is only considered an insurance policy if it includes a beneficiary clause.
Distance insurance policies
According to the Insurance Contracts Act, a distance insurance policy is a contract between an insurer and a policyholder concluded in the framework of a distance sale or provision of services organised by the insurer which, for this type of contract, uses exclusively one or more means of distance communication up to and through conclusion of the contract.
Article 10(1) of the Insurance Contracts Act states that before the policy is entered into, the insurer must provide the policyholder with information about the insurer, the relevant supervisory authority and the policy, such as the right to cancel it.
Communications between the insurer and the policyholder must be in the language in which the contract is drafted.
Specific provisions of the Insurance Contracts Act apply to distance insurance policies where the policyholder is a natural person and does not enter into the contract for reasons related to his or her professional or commercial activity.
In addition to the information mentioned above, the policyholder must also be provided with the following information before entering into the policy: (i) the special and general terms and conditions of the policy; (ii) a description of the principal elements of the policy; (iii) the mode of payment and implementation of the policy; (iv) any additional costs charged to the policyholder associated with the use of distance communication; (v) an indication of the Member State's law on which the insurer based its relationship with the policyholder before entering into the distance insurance policy; and (vi) the existence or absence of any guarantee fund or other compensation mechanism.
All information provided to the policyholder must be clear and easily understandable. Obligations arising from the policy must be in accordance with the information provided to the prospective insured before entering into the contract.
The policyholder has a 14-day period to cancel the policy without penalty and without having to provide a reason for doing so. This period starts to run on the day the contract is entered into or on which the policyholder receives the special and general terms, if these are received after entering into the contract.
Financial aspects of insurance products in Luxembourg
Premiums Under Luxembourg law, it is possible to distinguish between insurance policies with a fixed premium and those with a variable premium.
A fixed-premium policy can provide for a single premium to be paid by the policyholder upon signing the contract: the policyholder has thus fulfilled its obligations under the contract from the outset.
A fixed-premium policy can also provide for the payment of premiums on a regular basis in accordance with a predetermined schedule. In this case, the amount and periodicity of the
premiums, as well as the return guaranteed by the insurer upon maturity, must be determined at the outset. The insurer bears the risk if the insured fails to pay the premiums.
Conversely, under a variable-premium policy, the policyholder determines the amount and periodicity of the premiums. The policyholder invests in the policy to the extent and as often as possible, and the term of the contract is normally not determined at the outset.
Consequently, variable-premium policies are quite flexible.
Unit-linked insurance plans (ULIPs) A unit-linked insurance plan (ULIP) is a long-term insurance contract between a policyholder and an insurance company. The policyholder agrees to pay contributions, which the insurance company invests on the policyholder's behalf. The profits that can be generated by a unit-linked insurance plan are expressed in terms of units and unit price. A ULIP can be viewed as a combination of an insurance policy and a mutual fund, guided by the basic principle that the policyholder's investment should grow over time. The insured thus has life cover while the ULIP generates a return on investment. In short, the policyholder pays a premium and receives insurance cover in return, while a portion of the premium is invested in the fund(s) underlying the ULIP. The secured capital and benefits depend on the unit price, which is determined at the outset of the policy and which fluctuates along with the financial markets. The investment risks inherent in a ULIP are typically borne solely by the policyholder.
ULIPs may be linked to the following types of investment funds, as indicated in Circular Letter 15/3 of the Commissariat on the investment rules for life insurance products linked to investment funds that do not provide a guaranteed return ("Circular 15/3"):
- internal dedicated funds (fonds internes ddis), i.e. internal funds linked in principle to a single contract and managed by an asset manager appointed by the insurance company based on the policyholder's investment profile;
- specialised insurance funds (fonds d'assurance spcialiss), i.e. internal funds linked in principle to a single contract and which can be managed by the policyholder;
- internal collective funds (fonds internes collectifs), i.e. internal insurance funds liked to several contracts;
- external funds (fonds externes), i.e. undertakings for collective investment in transferrable securities (UCITS).
A mixed policy (contrat mixte) is one linked, on the one hand, to funds with no guaranteed return as listed above and, on the other hand, to internal funds with a guaranteed return.
A dedicated policy (contrat dedi) is a policy linked, in whole or in part, to a dedicated fund. If it is linked only in part to a dedicated fund, the policy may also be linked to external or internal collective funds, with or without a guaranteed return. A dedicated policy may consequently also be a mixed policy.
Circular 15/3 sets out the rules applicable to the assets of unitlinked insurance plans in Luxembourg.
Unit-linked insurance plans may invest solely in the following types of assets:
shares in external funds; shares in internal funds without a guaranteed return; liquid assets.
Unit-linked insurance plans based on a mixed policy may also invest in units of internal funds with a guaranteed return, including the insurance undertaking's general fund.
II-based investor protection provisions, whereby insurance intermediaries and insurers distributing IBIPs are obliged to, amongst other things: (i) maintain operational arrangements to prevent and detect conflicts of interest; (ii) provide clients with the appropriate information in a timely manner before entering into the IBIP distribution contract; and (iii) assess whether a given IBIP is suitable and appropriate to the client and provide the client with relevant information, as applicable.
Reinsurance special purpose vehicles
A reinsurance special purpose vehicle (SPV) is a legal entity, incorporated or not, distinct from an insurance or reinsurance undertaking, that bears the risk transferred from an insurance or reinsurance undertaking and that finances this exposure by issuing securities or through another mechanism. The rights of creditors of an SPV are subordinated to the SPV's reinsurance obligations.
SPVs and management companies of SPVs without legal personality having their registered office in Luxembourg are considered to be located in Luxembourg. They must be authorised by the Minister of Finance before they can conduct business in Luxembourg and are subject to supervision by the Commissariat.
The general terms and conditions must stipulate that the policyholder has a right to receive annually, free of charge, an assessment of the contract and an updated list of all assets linked to the policy.
The annexes to Circular 15/3 set out the investment classes and limits applicable to the investment funds linked to the contract.
In order to make Luxembourg insurance companies more competitive with respect to external funds, they are allowed to apply higher investment limits insofar as the legislation of the country where the fund is located allows the policyholder to invest more ("a level playing field"). If a Luxembourg insurance company wishes to apply this rule, however, it must be able to prove that the higher limit has been approved by local law.
Since ULIPs are hybrid products combining insurance and investment elements, they qualify as "insurance-based investment products" ("IBIPs"), i.e. insurance products with a maturity or surrender value which is wholly or partially exposed, directly or indirectly, to market fluctuations. IBIPs involve MiFID
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Miryam Lassalle Head of Insurance and Reinsurance T. +352 26 12 29 7403 M. +352 621 56 74 03 E. firstname.lastname@example.org Jose Weydert Partner T. +352 26 12 29 97 M.+352 621 28 08 31 E. email@example.com
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