The passporting system allows (i) UK insurers, reinsurers and insurance intermediaries to issue insurance policies and to serve their clients in the EU/EEA, and (ii) EU insurers, reinsurers and intermediaries to conduct insurance business in the UK, across borders (freedom of services) and through local branches (freedom of establishment).
Post-Brexit, both inward and outward passporting rights providing authorisation to carry out insurance business across the EU have been terminated, for both new and existing businesses.
Firms previously relying on passporting to or from the UK need an alternative option (such as obtaining additional licences to carry on business in the EU/EEA states, or establishing new licensed companies instead) or must refrain from conducting cross-border business.
Transitional regime – insurers
As of 1 January 2021, insurance undertakings wishing to terminate their pre-existing business in Belgium can temporarily continue to use their legacy insurance contracts without obtaining a new licence from the National Bank of Belgium (“NBB”). To benefit from this transitional regime, UK insurance undertakings have to:
- notify the NBB of their intention to use the arrangement;
- undertake not to conclude any new insurance policies in Belgium;
- provide the NBB with a plan indicating how they will discharge and settle their obligations under the legacy contracts;
- appoint a Belgian representative; and
- inform their policyholders and beneficiaries that the continuity of their policies is guaranteed.
The NBB may insist that certain assets are deposited with a Belgian financial institution to guarantee the performance of the undertaking’s Belgian liabilities.
It should be noted that the transitional regime does not apply to risks located in Belgium relating to maritime shipping, commercial aviation and space launching, and freight, or to goods in international transit, which may continue to be underwritten by insurance undertakings of third countries that are parties to the GATS treaty.
Transitional regime – insurance intermediaries
Insurance intermediaries wishing to continue their insurance distribution activities in Belgium can do so without additional registration with the Financial Services and Markets Authority (“FSMA”) for a maximum of 18 months (i.e. until 30 June 2022).
Any UK intermediaries wishing to use the transitional regime must notify the FSMA before 28 February 2021 and provide the FSMA with a plan indicating how they will terminate their activities in Belgium within the 18-month period.
Establishing a local presence
CMS Belgium’s insurance lawyers are helping a number of international (re-)insurers and insurance intermediaries to restructure or move their operations to carry on their business in the UK and across the EEA post-Brexit.
Immediately following Brexit, British and Belgian regulations on insurance will remain largely equivalent. British and Belgian laws transposing EU directives (e.g. Insurance Distribution Directive) are set in national law and will not be changed by Brexit. However, Brexit will allow British lawmakers to deviate from this alignment.
A licence request must be filed with the Belgian local regulator (FSMA/NBB) for UK insurance intermediaries or insurers to carry on insurance business in Belgium post-Brexit. An alternative is a passport licence granted in another EEA country to carry out activities in Belgium.
If a new Belgian entity is established, the Belgian regulator will require this entity to have actual substance in Belgium, proportionate to the level of business. This could be a gradual process.
For UK insurers which have underwritten European insurance policies, a run-off or a transfer of portfolios needs to be put in place. Conversely, EEA insurers which have underwritten UK insurance policies should have applied for the UK TPR (temporary permission regime) or now need to run off or transfer those portfolios as well.
Insurers are required to take measures to ensure that contracts can continue to be serviced (note, in particular, the transitional regimes described above). The impact of Brexit on existing policyholders, services, products and policy wording must be reviewed. If needed, policy wording and documentation must be updated (e.g. scope of cover, duration of policy, changes in risk resulting from Brexit, and governing law and jurisdiction). The FSMA asks insurance companies and intermediaries to inform their Belgian policyholders as soon as possible of the consequences of Brexit for their existing contracts.
Post-Brexit, all contracts need to be reviewed to determine whether certain provisions in key commercial contracts should be amended, including provisions on distribution, IP licensing and IT provisions, financing agreements, and standard terms and conditions.
The impact of the GDPR on data transfer and on existing and future contractual arrangements must be reviewed.
There must be a plan for the possible relocation of employees to and from the UK. If relevant, TUPE regulations must be considered.
No specific tax other than insurance premium tax (IPT) applies to the sale of policies in Belgium. Certain types of policy are exempted.
Insurance mediation services (and related services) are exempt from VAT.
Any income from the sale of policies is nevertheless subject to (corporate) income tax.
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