NON-LIFE INSURANCE CONTRACTS

The taking up of insurance business in the territory of italian republic under the freedom by an undertaking with head office in another european state

a cura di Avv. Alessandra Perelli
skype: aleperelli

The taking up of insurance business under the freedom to provide services in the territory of the Italian Republic by an undertaking with head office in another EU or EEA State is subject to the communication to ISVAP (the Italian Supervisory Authority for Private Insurance Undertakings and Insurance Undertakings of Public Interest, herein after ISVAP) by the home supervisor of the following documents drawn up in Italian:
  1. the name of the undertaking and the address of its head office or, in case the undertaking intends to carry on business from a branch situated in another member State, the address of that branch and the name of the general representative;
  2. a certificate of the insurance classes that the undertaking has been authorised to pursue in its home State attesting that the undertaking possesses, with respect to its entire business, the minimum solvency margin envisaged by directive 2002/83/EEC (life assurance) or 1973/239/EEC (non-life insurance) and subsequent modifications and integrations;
  3. a declaration indicating the nature of the risks and commitments which the undertaking is proposing to cover in Italy (undertakings authorised to carry on both life assurance and non-life insurance in their home member States may simultaneously pursue the two lines of business by way of free provision of services provided that they abide by the rules of legislative decrees 174/95 and 175/95, especially as regards the obligation to maintain a separate management);
  4. only if the undertaking is to cover insurance class 10 (motor vehicle liability) and 12 (liability for ships): the name and address of the representative for the handling of claims envisaged by art. 90 of legislative decree 175/95 and a declaration of membership of Ufficio Centrale Italiano (the national bureau as per law 242/1990) and Fondo di Garanzia per le Vittime della Strada (the national guarantee fund envisaged by art. 19 of law 990/1969);
    6. 5. only if the undertaking is to cover insurance class 17 (legal expenses): notification of the option chosen from those described in art. 3 point 2 of directive 87/344/EEC.
The undertaking may start business under the freedom to provide services as soon as it has been notified by its home supervisor.
ISVAP informs the home supervisor of the general good conditions which the undertaking must observe as regards the contracts concluded and the forms of advertising adopted.
Contracts are governed by the Italian law. However, the parties may agree that the contract be subject to the law of another State, except for the limits deriving from the application of Italian mandatory rules and without prejudice to the obligation to apply the Italian law to compulsory insurance contracts.
The undertaking must notify ISVAP through the home supervisor of any changes to the conditions governing pursuit of business contained in the first communication. The undertaking may effect the changes immediately after it has been informed that the communication has been notified to ISVAP.
Business under the freedom to provide services in Italy cannot be carried on through branches, agencies or any other permanent presence even if it consists merely of an office managed by the undertaking's own staff or by a person who is independent but authorised to act on a permanent basis for the undertaking.
The undertaking must appoint a fiscal representative resident in Italy and communicate the name of such representative to
  1. Agenzia delle Entrate, Ufficio Roma 6, Via Canton 20, 00144 Rome,
  2. ISVAP, Istituto di Vigilanza delle Assicurazioni Private e di Interesse Collettivo, Via del Quirinale 21, 00187 Rome.
Furthermore, if the undertaking is also interested in pursuing compulsory insurance, he is subject to specific regulations (inter alia the appointment of an Italian representative and the communication of the policy conditions to ISVAP before their application).

THE DISCLOSURE IN NON-LIFE INSURANCE CONTRACTS

According to Italian Legislative Decree n. 175 dated 17 March 1995 and ISVAP Circular n. 303 of 2 June 1997 concerning the Disclosure in non-life insurance contracts, the undertaking must give the policyholders all the information concerning the company and the policy, contained in an Information Note.

A) INFORMATION CONCERNING THE COMPANY
The information concerning the company shall include:
  1. the name of the EU State where is located the head office of the undertaking or the branch where the contract will be signed;
  2. the ISVAP authorisation to take up insurance business and the sentence: “undertaking authorised by ISVAP to take up insurance business”, specifying the date of the authorisation and the number of the Gazzetta Ufficiale of the Italian Republic where the authorisation is contained;
  3. the head office of the undertaking or the branch where the contract will be signed;
  4. the name and the address of the representative for the handling of claims in case of compulsory insurance for motor vehicles and ships, if the undertaking takes up insurance business under the freedom.
In this case, the Information Note shall also contain the name of the representative for the handling of claims of third parties, duly entitled.
The above mentioned information shall be inserted in all the pre-contractual documents.

B) INFORMATION CONCERNING THE POLICY

The information concerning the policy shall include:

(i) the legislation governing the contract.
Under Article 122 of the Italian Legislative Decree n. 175/95, the contracts shall be governed by Italian Law, upon condition that the risk is located in Italy.
The policyholder shall be informed that the parties may agree that the contract be subject to the law of another State, except for the limits deriving from the application of Italian mandatory rules.
In case of compulsory insurance contracts, the Italian Law and the Italian mandatory rules shall prevail over a different legislation chosen by the parties;

(ii) claims concerning the contract, to be sent to ISVAP - Divisione r.c.a., reclami e tutela del consumatore (Via Vittoria Colonna n. 39 - 00193 Roma) as entity entitled to handle claims, if the parties agree that the contract be subject to Italian law.
The Information Note shall inform the policyholder that, in case of applicability of a foreign law, the entity entitled to handle the claims will be the one stated by the competent applicable law and ISVAP shall facilitate the communication between the competent authority and the policyholder.
If the undertaking has a specific office for claims, it will be mentioned in the Information Note;

(iii) further information concerning the statute of limitation.
ISVAP believe it opportune that the policyholder be informed on the statute of limitation of the rights contained in the contracts.

(iv) further information concerning the compulsory insurance contracts.
With reference to the compulsory insurance contracts for motor vehicles, the information to the policyholder contained in the pre-contractual documents shall include further aspects prescribed in the above mentioned ISVAP Circular n. 303/97 in order to guarantee the clarity and comprehensiveness of the information given to the policyholder.

(v) information concerning the reimbursement of damages ISVAP believes it opportune to give all the necessary information concerning the procedure for the reimbursement of the damages inc case of motor vehicles liability and ships liability.

(vi) further information concerning sickness policies
ISVAP Circular n. 417 of 28 September 2000, states that the Information Note shall contain, in addition to the above mentioned information, the following:
  • duration of the contract and possibility of tacit postponement;
  • period in which the event is not guaranteed and consequently it will not be paid by the undertaking;
  • statute of limitation;
  • disclosure of the policyholder and consequences in case of untrue or reticent statements.

(published on 20 June 2006)


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