Private Insurance Code and Consumer Code modified by the Italian “European Law”
On February 1, Law No. 238/2021 (“Law”), which regulates Italy’s obligations arising from its membership of the European Union, officially came into force.
The Law transposing Directive (EU) 2019/2177 of the European Parliament and of the Council introduced, among other things, a series of amendments and additions to the Italian Personal Insurance Code (the “Law”).
In particular, the law introduced the following in Article 28:
A. Paragraph 2-bis, with identical wording, in both Art. 14-bis (“Operating Plan”) and Art. 59 (“Requirements and Procedures”) of the Code. The added provision provides that if the business plan submitted at the stage of authorization for Italian insurance and reinsurance companies to carry on business indicates that a relevant part of their activities are carried out under the right of establishment or the freedom to provide services regimes in another Member State and that these activities may be relevant for the market of the host Member State, IVASS shall notify EIOPA and the supervisory authority of the relevant host Member State with appropriate level of detail;
B. Paragraph 5-bis in Article 46-bis (“Authorization to use full or partial internal models: general provisions”) of the Code, which provides that when an entity requests authorization to use or change an internal model, IVASS the EIOPA and it needs to inform may request their technical assistance in deciding on the application;
C. Paragraph 4-bis in Article 192 of the Code concerning the supervision of the technical and financial management of Italian insurance companies. Pursuant to paragraph 4-bis, if IVASS detects deteriorating financial conditions or other emerging risks deriving from the activity that the Italian company carries out on a significant scale in another Member State, the Italian insurance regulator EIOPA and the regulator shall provide appropriate information to the authority of this host Member State;
D. Paragraph 1-ter in Art. 193 on the supervision of insurance companies from other Member States, according to which IVASS must inform the supervisory authority of the home Member State if it has reason to believe that the company from another Member State is carrying out relevant activities in the territory of the Italian Republic expresses serious and justified concerns regarding consumer protection . In cases where no bilateral solution can be found between IVASS and the authority of that Member State, IVASS may refer the matter to EIOPA and request its assistance;
e. analogous provisions as above in points c) and d) in Articles 195 (paragraph 3) and 195-bis (paragraph 1-ter) of the Code, respectively in relation to Italian reinsurance companies and reinsurance companies from another Member State;
F. Paragraphs 2 and 5 of Article 207-octies have been amended (‘Cooperation for the approval of a group internal model’) and provide that in the event of a request for approval of the use of the internal model at group level, IVASS shall inform EIOPA and the concerned supervisory authority by submitting the complete application including the submitted documents in a timely manner and may request EIOPA’s technical assistance in relation to the decision on the application;
G. Art. 208-quater (“Collaboration Platforms established by EIOPA”), on the basis of which IVASS will provide EIOPA, upon request, with all the necessary information in a timely manner to allow the proper functioning of the Collaboration Platforms established by EIOPA; IVASS can request the establishment of cooperation platforms with the supervisory authorities of the other Member States or join existing platforms;
H. an amendment of Article 217-ter paragraph 4 (“Centralised risk management: application for approval”), which now provides that the group supervisory authority has the final decision whether the EIOPA involved by the relevant supervisory authority does not decide on the application for approval for supervision the solvency of the group, which has centralized risk management.
Article 37 of the Law has also amended and introduced some new provisions on Consumer Law.
In particular and among other things, the above article has:
A. In Article 37-bis, paragraph 1 of the Consumer Code, the indication of the Italian Competition Authority (AGCM) as competent authority for the application of Council Directive 93/13/EEC of April 5, 1993 on unfair terms in contracts concluded consumers. In addition, it also found that Article 27 of the Consumer Code applies when assessing sanctions for breaches of the above-mentioned Directive 93/13/EEC;
B. replaces paragraph 2 of Art. 144-bis (“Cooperation between national authorities for the protection of consumers”) of the Consumer Code, which now provides that the Ministry of Economic Development and other competent authorities, all of which provide them with information pursuant to Art. 9 of Regulation (EU) 2017/2394 ( ie minimum investigative and enforcement powers required for the application of the regulation providing for cooperation between national authorities responsible for the enforcement of consumer protection laws) and these, under Article 10 of the same regulation, now retain additional and broader powers. Furthermore, with regard to infringements that harm the collective interests of consumers at national level who are exempted from the application of Regulation (EU) 2017/2394 referred to above, these authorities, without prejudice to the additional and broader powers that they, exercise the same investigative and enforcement powers pursuant to art. 9 of the above Regulation, in accordance with art. 10 of the same Regulation, with the right to rely on specially appointed persons who will process the data, messages and information in accordance with the provisions in the applicable regulations acquire specified expertise and methods;
C. Paragraph 1-bis introduced in Article 51-octies of the Tourism Code (Appendix 1 to Legislative Decree 23/2011), which provides that the Italian Competition Authority (AGCM) is now the competent authority for the application of the Directive (EU) 2015 /2302 of the European Parliament and of the Council of 25 November 2015 on package travel and tourism services. Article 27 of the Italian Consumer Code applies in the event of a breach of the above Directive (EU) 2015/2302.