Article 117 of the Insurance Code provides that premiums paid to intermediaries and monies used to settle claims or due by insurers must be kept in separate accounts, the holder of which can be an intermediary that acts expressly in such a capacity. These monies are independent to those of the intermediary. No seizure or distraint of the separate account can be carried out by creditors other than policyholders and insurers. Statutory and judicial offsetting will not apply to the separate account or the contractual offsetting of the depositary's claims on the intermediary.
Pursuant to Article 117 of the code, intermediaries that can prove via a bank guarantee that their financial capacity is equal to 4% of the premiums collected (€15,000 at a minimum) are exempt from the obligation to set up segregated accounts.
IVASS (the Italian insurance regulator), through IVASS Regulation 5/2006, further developed Article 117 of the Insurance Code by providing that:
- monies must be deposited in a separate bank account immediately or no later than 10 days after the premium is paid;
- monies may be deposited net of the commission due to intermediaries if this is allowed by the principal undertakings;
- intermediaries acting for various undertakings must adopt procedures which aim to guarantee the allocation of monies to each principal insurer and the respective insured persons (including in the case of enforcement proceedings); and
- intermediaries cannot temporarily deposit premiums or monies to be used for the settlement of claims in accounts other than separate accounts.
On November 6 2017 IVASS clarified the following issues following the outcome of an investigation into the compliance of intermediaries with the above rules:
- Intermediaries cannot use separate bank accounts for the management of transactions relating to their own business, such as rent payments or the payment of mandatory contributions.
- Intermediaries are under no duty to open separate bank accounts based on the number of undertakings for which they act; one separate bank account is sufficient.
- The offset of the insured's debits on account of its premium and its credit towards the insurer is permitted, provided that the relevant entries are properly recorded.
- If the intermediaries act for a number of insurers, the bank guarantee (which can replace the obligation to establish a separate bank account) will be equal to 4% of the total net premium cashed by the intermediaries as of December 31 of the preceding year rather than 4% of the net premium earned for each insurer that the intermediary represents.
- Prepaid cards cannot be used for the management of premiums, as such cards are linked to bank accounts which do not have the features of a separate account (ie, the intermediary's creditors could bring enforcement actions against such accounts).
For further information on this topic please contact David Maria Marino at DLA Piper Italy by telephone (+39 02 80 61 81) or email (firstname.lastname@example.org). The DLA Piper Italy website can be accessed at www.dlapiper.com.
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