Insurance and insurance distribution activities in Spain are regulated, among others, under the Act 20/2015, of 14 July on the organisation, supervision and solvency of insurance and reinsurance companies, the Royal Decree 1060/2015, of 20 November, which approves the regulation on organisation, supervision and solvency of insurance and reinsurance companies and Royal Decree-Law 3/2020, of 4 February, on urgent measures to transpose into Spanish law several European Union directives in the areas of public procurement in certain industries, private insurance, pension plans and funds, taxation and tax litigation. Additionally, the Act 50/1980, of 8 October on insurance contract, governs the content of insurance agreements, rights and obligations of the parties and related issues.
There are various alternatives available for carrying out insurance activity in Spain. This depends on the origin of the company undertaking the business.
To carry out insurance or insurance distributions activities in Spain, Spanish companies must obtain a licence granted by the Ministry of Economic Affairs and Digital Transformation (i.e. Ministerio de Asuntos Económicos y Transformación Digital). For this purpose, the General Directorate of Insurance and Pension Funds (“DGSFP”) is responsible for compiling and analysing the relevant information provided for prospective insurance companies or insurance distributors. Such activities will be limited to the classes of insurance that are expressly authorised by the licence. Likewise, it is necessary to bear in mind that Spanish legislation requires insurers to supervise their employees in order to comply with the requirements established to be able to distribute insurance (e.g. they meet the requirement of commercial and professional honourability; they possess appropriate knowledge and skills, etc.).
On their incorporation, Spanish insurance companies have to fulfil a series of requirements, among which the following should be highlighted: (i) legal form provided by law; (ii) limitation of the corporate purpose to insurance and reinsurance activity; (iii) presentation of a programme of activities; (iv) having the minimum share capital or mutual fund; (v) maintaining minimum funds to protect the minimum capital; (vi) having an effective system of governance, among others.
Insurance companies and insurance distributors based within the EEA already authorised by their home country regulators will be entitled to carry out insurance activity in Spain through the incorporation of a branch in Spain (on a right-of-establishment basis) or directly from their home country (on a freedom-of-services basis). In these cases, EEA insurance companies and distributors will be allowed to conduct insurance activities in Spain in accordance with the licence granted by their home country regulator, upon notification has been made by this regulator to the DGSFP communicating their intention to conduct insurance or insurance distribution activities in Spain.
For an EEA insurer, it is more time-consuming to incorporate and obtain a licence from the Spanish Ministry of Economic Affairs and Digital Transformation than to proceed on a right-of-establishment or freedom-of-services basis, where the home country regulator notifies the Spanish Ministry of Economic Affairs and Digital Transformation of: (i) the intention of the company to conduct insurance or insurance distribution activities; (ii) the submission in Spanish of the documentation and information required by the DGSFP; and (iii) to have the obligation to register in the correspondent Administrative Register, but for merely informative purposes.
Companies based outside the EEA are required to establish a branch and obtain a licence from the Ministry of Economic Affairs and Digital Transformation in order to carry out insurance activities. Once the authorization has been granted, the branch, its general representative and the managers will be registered in the administrative registry.
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