EU-UK Trade and Cooperation Agreement and the (Re)insurance Sector

The signing of the EU-UK Trade and Cooperation Agreement (TCA) on 30 December 2020 gives greater clarity on the new relationship between the UK and the EU27 Member States, including Ireland. The TCA means that there is now certainty on trading arrangements across a range of sectors. However, it does not contain much of significance for (re)insurance or financial services generally.

The statements in the TCA about a framework for regulatory cooperation to be agreed by March 2021 between the EU and the UK should assist the (re)insurance sector. This proposed EU-UK memorandum of understanding should also precipitate progress on Solvency II equivalence determinations. However, there is a political dimension to these determinations and a further delay cannot be ruled out.

Irish Temporary Run-off Regime

To provide a degree of legal certainty, Ireland has enacted a new legal framework to facilitate the run-off of existing insurance business of UK (and Gibraltar) insurers and insurance intermediaries (Firms). In early 2021, the Central Bank of Ireland (CBI) published details of the registration process for Firms seeking to avail of the Temporary Run-off Regime (TRR). This is implemented through the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020.

We summarise the main elements as follows:

Scope

  • Subject to satisfying the conditions of the TRR (see below), Firms are permitted to administer their existing insurance portfolio for up to a maximum period of 15 years from 31 December 2020 (Relevant Date) in order to terminate their activities in Ireland.
  • The TRR applies in respect of all life and non-life contracts of insurance written by Firms in Ireland which were entered into before the Relevant Date. It does not apply to reinsurance contracts.
  • Under the TRR, a Firm is limited to exclusively administering its existing insurance policies in order to terminate its activity in Ireland. Mid-term adjustments to policies are likely to fall foul of the TRR, with the exception of immaterial / administrative changes which do not, in total, undermine the TRR's requirements.

Conditions

To avail of the TRR, the Firm must:

  • Be authorised as an insurer or registered as an insurance intermediary in the UK or Gibraltar and have passported into Ireland (either on a freedom of establishment or freedom of services basis) immediately before the Relevant Date.
  • Have ceased to conduct new insurance contracts and/or new insurance distribution business, as appropriate, in Ireland on or before the Relevant Date.
  • Exclusively administer its existing portfolios in order to terminate its activity in Ireland after the Relevant Date.
  • Comply with the general good requirements (as applicable).

Other Key Points

In the FAQ section on its website, the CBI provides some limited insight on its interpretation of how the TRR applies in given circumstances. Key points include:

  • Mid-term policy adjustments – in response to the question whether such adjustments are permitted under the TRR, the CBI's guidance gives some but not total clarity. It will likely be subject to some debate. The CBI states that policy adjustments which "establish, renew, extend, increase or resume insurance cover on an existing policy, may not be in accordance with the TRR. Immaterial and / or administrative adjustments to policies may be permissible, provided these adjustments in total, do not undermine the requirements of the TRR, which include permanently ceasing to carry on insurance business." Notwithstanding the CBI's attempts to clarify the point, debate on what constitutes an "immaterial" and/or "administrative" adjustment seems likely.
  • Life products – regarding pension policies where there is an option in the existing contract, the CBI's guidance limits itself to saying that it will consider the treatment of annuities in the context of how a Firm is complying with the TRR's conditions in terms of run-off. It advises Firms to seek legal advice in such instances.
  • Occupational pension schemes – similar to life products, the CBI indicates that it will consider the addition of new members to such schemes in the context of how the Firm is complying with the TRR's conditions generally.
  • Withdrawal from TRR – the CBI notes that it has the power to withdraw the temporary authorisation / registration of a Firm if (a) it does not continue to satisfy the conditions of the TRR; or (b) the CBI is not satisfied with the progress made towards terminating its business within the maximum 15 year period.
  • Regulatory regime – the CBI confirms that its existing supervisory approach under the Solvency II and the IDD regimes will continue to apply to Firms, in addition to the requirements of the TRR itself.

Registration

A Firm seeking to avail of the TRR must notify the CBI no later than 3 months after the Relevant Date.

The CBI has now published the required forms of notification on its website (see here). Firms must file these forms by the end of March. The CBI has given details of the ongoing reporting requirements which will apply to Firms relating to registrations under the TRR.

A public register of Firms that notified the CBI that they are availing of the TRR will be available on the registers section of the CBI's website.