Committee Reports > List of Committees > Joint > 1988 > Committee on the Secondary Legislation of the European Communities (5th Committee) > Report No. 08 - Statutory Instruments [14]

APPENDIX 3

European Communities (Non-Life Insurance) (Amendment) Regulations, 1986 [S.I. No. 309 of 1986]

An Runai,

An Roinn Tionscail agus Trachtala.

I am directed by Mrs. Gemma Hussey, TD, Chairperson of the Joint Committee on the Secondary Legislation of the European Communities to request your assistance in assessing the effect of the European Communities (Non-Life Insurance) (Amendment) Regulations, 1986 [S.I. No. 309 of 1986].

The Joint Committee would appreciate your advice on whether the effect of the Regulations is to classify “assistance” as defined therein as insurance business for the first time or whether that type of business could formerly have been carried on under an authorisation granted under the 1976 Regulations but now requires the separate authorisation provided for in the 1986 Regulations.

I am also to enquire if it is the intention that any contract for “assistance” entered into by a person resident in this country with an undertaking outside the State which does not hold an authorisation as provided for in the 1986 Regulations would be unenforceable whether the “assistance” is to be provided inside or outside the State.

P.A. Ryan.

a/s Cleireach an Chomhchoiste.

3 Meitheamh, 1988.

(Reminder issued on 26 July, 1988).

P.A. Ryan,

Principal Clerk,

Joint Committee on the Secondary

Legislation of the European Communities,

Leinster House,

Dublin 2.

I am directed by the Minister for Industry and Commerce to refer to your letter and enclosure of 26 July, 1988 concerning the European Communities (Non-Life Insurance) (Amendment) Regulations, 1986 (S.I. No. 309 of 1986). Your original communication of May, 1988, was not received in this Department.

Prior to the making of the 1986 Regulations, assistance cover was treated as insurance in Ireland and was underwritten by insurers authorised under the European Communities (Non-Life Insurance) Regulations, 1976 (S.I. No. 115 of 1976) under for example, their Accident or Motor authorisations.

The European Communities (Non-Life Insurance) (Amendment) Regulations, 1986 (S.I. No. 309 of 1986) gave effect to the Tourist Assistance Directive (84/641/EEC) and introduced a “new” class of insurance known as “assistance” - Class 18. This “new” Class 18 is essentially the same type of assistance insurance formerly written by insurers under their Accident or Motor authorisations. The purpose and effect of the Directive and the 1986 Regulations was to subject assistance organisations, mainly operating in continental Europe, which were carrying on assistance activities of a quasi-insurance nature, to the same type of supervision as is applied to general insurers.

As a result of the 1986 Regulations, all undertakings writing assistance business, other than on an ancillary risks basis as defined at point C of the Annex to EEC Directive 73/239/EEC - (see Schedule 1 of S.I. 115 of 1976) require an authorisation for Class 18.

Turning to the subject of the enforceability of assistance contracts, Article 4(1) of S.I. 115 provides that subject to limited exceptions, a person “shall not carry on the business of non-life insurance in the State unless he is the holder of an authorisation under (the Regulations) granted by the Minister …”. To do otherwise, is an offence under Article 33.

Section 9 of the Insurance Act, 1936, as applied by Article 4(5) of the said Regulations, makes it an offence for a person “to effect or to endeavour to effect” any contract of insurance with an unauthorised insurer.

In such circumstances, it is doubtful whether any claim against an unauthorised insurer, on foot of an “assistance” contract, entered into illegally by an Irish resident, would be enforceable through the Irish Courts.

I trust that this clarifies the issues raised by you.

J.P. Kelly,

Insurance Section.

18 August, 1988.