Commission Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector (Text with EEA relevance)

• Published date: 28 February 2003
• Official Gazette Publication: Official Journal of the European Union, L 53, 28 February 2003

2003R0358 — EN — 01.05.2004 — 001.001

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This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

►B COMMISSION REGULATION (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector (Text with EEA relevance) (OJ L 053, 28.2.2003, p.8)

Amended by:

		Official Journal
		No	page	date
►M1	COMMISSION REGULATION (EC) No 886/2004 of 4 March 2004	L 168	14	1.5.2004

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▼B

COMMISSION REGULATION (EC) No 358/2003

of 27 February 2003

on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 1534/91 of 31 May 1991 on the application of Article 85(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector ( 1 ), and in particular Article 1(1)(a), (b), (c) and (e) thereof,

Having published a draft of this Regulation ( 2 ),

Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions,

Whereas:

(1) Regulation (EEC) No 1534/91 empowers the Commission to apply Article 81(3) of the Treaty by regulation to certain categories of agreements, decisions and concerted practices in the insurance sector which have as their object cooperation with respect to: — the establishment of common risk premium tariffs based on collectively ascertained statistics or the number of claims, — the establishment of common standard policy conditions, — the common coverage of certain types of risks, — the settlement of claims, — the testing and acceptance of security devices, — registers of, and information on, aggravated risks.

(2) Pursuant to Council Regulation (EEC) No 1534/91, the Commission adopted Regulation (EEC) No 3932/92 of 21 December 1992 on the application of Article 85(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector ( 3 ). Regulation (EEC) No 3932/92, as amended by the Act of Accession of Austria, Finland and Sweden, expires on 31 March 2003.

(3) Regulation (EEC) No 3932/92 does not grant an exemption to agreements concerning the settlement of claims and registers of, and information on, aggravated risks. The Commission considered that it lacked sufficient experience in handling individual cases to make use of the power conferred by Council Regulation (EEC) No 1534/91 in those fields. This situation has not changed.

(4) On 12 May 1999, the Commission adopted a Report ( 4 ) to the Council and the European Parliament on the operation of Regulation (EEC) No 3932/92. On 15 December 1999, the Economic and Social Committee adopted an opinion on the Commission's report ( 5 ). On 19 May 2000, the Parliament adopted a Resolution on the Commission's report ( 6 ). On 28 June 2000, the Commission held a consultation meeting with interested parties, including representatives of the insurance sector and national competition authorities, on the Regulation. On 9 July 2002, the Commission published in the Official Journal a draft of the present Regulation, with an invitation to interested parties to submit comments not later than 30 September 2002.

(5) A new Regulation should meet the two requirements of ensuring effective protection of competition and providing adequate legal security for undertakings. The pursuit of these objectives should take account of the need to simplify administrative supervision to as great an extent as possible. Account must also be taken of the Commission's experience in this field since 1992, and the results of the consultations on the 1999 Report and consultations leading up to the adoption of this Regulation.

(6) Regulation (EEC) No 1534/91 requires the exempting regulation of the Commission to define the categories of agreements, decisions and concerted practices to which it applies, to specify the restrictions or clauses which may, or may not, appear in the agreements, decisions and concerted practices, and to specify the clauses which must be contained in the agreements, decisions and concerted practices or the other conditions which must be satisfied.

(7) Nevertheless, it is appropriate to move away from the approach of listing exempted clauses and to place greater emphasis on defining categories of agreements which are exempted up to a certain level of market power and on specifying the restrictions or clauses which are not to be contained in such agreements. This is consistent with an economics based approach which assesses the impact of agreements on the relevant market. However, it should be recognised that in the insurance sector there are certain types of collaboration involving all the undertakings on a relevant insurance market which can be regarded as normally satisfying the conditions laid down in Article 81(3) of the Treaty.

(8) For the application of Article 81(3) of the Treaty by regulation, it is not necessary to define those agreements which are capable of falling within Article 81(1). In the individual assessment of agreements under Article 81(1), account has to be taken of several factors, and in particular the market structure on the relevant market.

(9) The benefit of the block exemption should be limited to those agreements for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 81(3) of the Treaty.

(10) Collaboration between insurance undertakings or within associations of undertakings in the calculation of the average cost of covering a specified risk in the past or, for life insurance, tables of mortality rates or of the frequency of illness, accident and invalidity, makes it possible to improve the knowledge of risks and facilitates the rating of risks for individual companies. This can in turn facilitate market entry and thus benefit consumers. The same applies to joint studies on the probable impact of extraneous circumstances that may influence the frequency or scale of claims, or the yield of different types of investments. It is, however, necessary to ensure that such collaboration is only exempted to the extent to which it is necessary to attain these objectives. It is therefore appropriate to stipulate that agreements on commercial premiums are not exempted; indeed, commercial premiums may be lower than the amounts indicated by the results of the calculations tables or studies in question, since insurers can use the revenues from their investments in order to reduce their premiums. Moreover, the calculations, tables or studies in question should be non-binding and serve only for reference purposes.

(11) Moreover, the broader the categories into which statistics on the cost of covering a specified risk in the past are grouped, the less leeway insurance undertakings have to calculate premiums on a narrower basis. It is therefore appropriate to exempt joint calculations of the past cost of risks on condition that the available statistics are provided with as much detail and differentiation as is actuarially adequate.

(12) Furthermore, since access to such calculations, tables and studies is necessary both for insurance undertakings active on the geographic or product market in question and also for those considering entering that market, such insurance undertakings must be granted access to such calculations tables and studies on reasonable and non-discriminatory terms, as compared with insurance undertakings already present on that market. Such terms might for example include a commitment from an insurance undertaking not yet present on the market to provide statistical information on claims, should it ever enter the market. They might also include membership of the association of insurers responsible for producing the calculations, as long as access to such membership is itself available on reasonable and non-discriminatory terms to insurance undertakings not yet active on the market in question. However, any fee charged for access to such calculations or related studies to insurance undertakings which have not contributed to them, would not be considered reasonable for this purpose if it were so high as to constitute a barrier to entry on the market.

(13) The reliability of joint calculations, tables and studies becomes greater as the amount of statistics on which they are based is increased. Insurers with high market shares may generate sufficient statistics internally to be able to make reliable calculations, but those with small market shares will not be able to do so, much less new entrants. The inclusion in such joint calculations, tables and studies of information from all insurers on a market, including large ones, promotes competition by helping smaller insurers, and facilitates market entry. Given this specificity of the insurance sector, it is not appropriate to subject any exemption for such joint calculations and joint studies to market share thresholds.

(14) Standard policy conditions or standard individual clauses and standard models illustrating the profits of a life assurance policy can produce benefits. For example, they can bring efficiency gains for insurers; they can facilitate market entry by small or inexperienced insurers; they can help insurers to meet legal obligations; and they can be used by consumer organisations as a benchmark to compare insurance policies offered by different insurers.

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