The International dimension of insurance mediation under the EU ...
The International dimension of insurance mediation under the EU ...
The International dimension of insurance mediation under the EU ...
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Pr<strong>of</strong>. dr Pierpaolo MARANO <br />
THE INTERNATIONAL DIMENSION<br />
OF INSURANCE MEDIATION<br />
UNDER THE <strong>EU</strong> DIRECTIVE ON INSURANCE MEDIATION.<br />
PRESENT AND FUTURE<br />
Abstract<br />
In comparison with o<strong>the</strong>r European directives, <strong>the</strong> directive on <strong>insurance</strong> <strong>mediation</strong> (hereinafter:<br />
IMD) is less prescriptive concerning <strong>the</strong> relationship with third countries. This has given rise<br />
to <strong>the</strong> issues which are examined in this paper. <strong>The</strong> analysis also wants to explain <strong>the</strong> possible solutions<br />
emerging from <strong>the</strong> amending process <strong>of</strong> <strong>the</strong> IMD, which has just begun.<br />
Key words: (Re)Insurance inter<strong>mediation</strong> – (Re)Insurance intermediaries – Third countries –<br />
European Union Directives – Supervisory Authorities – Consumer protection.<br />
<strong>The</strong> existing provisions <strong>under</strong> IMD which are related to <strong>the</strong> services <strong>of</strong>fered by <strong>insurance</strong> intermediaries<br />
1 , established in third countries, in <strong>the</strong> territory <strong>of</strong> Member States, are set out in Article<br />
1(3) subparagraph 2, Article 2(9) and recital 14.<br />
Article 1(3) subparagraph 2 states that IMD shall not affect a Member State's law in respect<br />
<strong>of</strong> <strong>insurance</strong> inter<strong>mediation</strong> business pursued by <strong>insurance</strong> and re<strong>insurance</strong> intermediaries established<br />
in a third country and operating on its territory <strong>under</strong> <strong>the</strong> principle <strong>of</strong> freedom to provide services,<br />
provided that equal treatment is guaranteed to all persons carrying out or authorised to carry out<br />
<strong>insurance</strong> inter<strong>mediation</strong> activities on that market. According to Article 2(9) and recital 14 in conjunction<br />
with Article 3(1), <strong>the</strong> intermediaries should be registered with “<strong>the</strong> Competent Authority<br />
<strong>of</strong> <strong>the</strong>ir home Member State.” 2 Following from that, <strong>the</strong> IMD does not apply to intermediaries established<br />
in third countries.<br />
<strong>The</strong>refore, third country intermediaries have to apply directly for ‘permission’ from every<br />
Member State <strong>the</strong>y want to intermediate within, o<strong>the</strong>rwise <strong>the</strong> inter<strong>mediation</strong> is illegal.<br />
In addition to <strong>the</strong> above rules, Article 1(3) subparagraph 1 states that IMD shall not apply to<br />
<strong>insurance</strong> and re<strong>insurance</strong> <strong>mediation</strong> services provided in relation to risks and commitments located<br />
outside <strong>the</strong> Community, while <strong>the</strong> following subparagraph 3 adds that IMD shall not regulate <strong>insurance</strong><br />
<strong>mediation</strong> activities carried out in third countries nor activities <strong>of</strong> Community <strong>insurance</strong> or re<strong>insurance</strong><br />
<strong>under</strong>takings 3 , carried out through <strong>insurance</strong> intermediaries in third countries.<br />
<strong>The</strong>refore, <strong>the</strong> intermediaries registered with <strong>the</strong> Competent Authority <strong>of</strong> <strong>the</strong>ir own Member State<br />
may carry out <strong>insurance</strong> <strong>mediation</strong> in a third country, if <strong>the</strong>ir own State shall recognize intermediaries<br />
<strong>of</strong> <strong>the</strong> third state to operate in its territory according to <strong>the</strong> condition <strong>of</strong> reciprocity that is characteristic<br />
<strong>of</strong> <strong>the</strong> international law.<br />
Università Cattolica del Sacro Cuore, Milan, email: pp.marano@unical.it.<br />
1 According to Article 2 (3 and 5) IMD, "<strong>insurance</strong> <strong>mediation</strong>" means <strong>the</strong> activities <strong>of</strong> introducing, proposing or carrying out o<strong>the</strong>r work<br />
preparatory to <strong>the</strong> conclusion <strong>of</strong> contracts <strong>of</strong> <strong>insurance</strong>, or <strong>of</strong> concluding such contracts, or <strong>of</strong> assisting in <strong>the</strong> administration and performance<br />
<strong>of</strong> such contracts, in particular in <strong>the</strong> event <strong>of</strong> a claim, while “<strong>insurance</strong> intermediary" means any natural or legal person who,<br />
for remuneration, takes up or pursues <strong>insurance</strong> <strong>mediation</strong>.<br />
2 According to Article 2 (9) IMD, "home Member State" means: (a) where <strong>the</strong> intermediary is a natural person, <strong>the</strong> Member State in<br />
which his residence is situated and in which he carries on business; (b) where <strong>the</strong> intermediary is a legal person, <strong>the</strong> Member State<br />
in which its registered <strong>of</strong>fice is situated or, if <strong>under</strong> its national law it has no registered <strong>of</strong>fice, <strong>the</strong> Member State in which its head<br />
<strong>of</strong>fice is situated.<br />
3 Insurance and re<strong>insurance</strong> <strong>under</strong>takings as defined in First Council Directive 73/239/EEC <strong>of</strong> 24 July 1973 on <strong>the</strong> coordination <strong>of</strong><br />
laws, regulations and administrative provisions relating to <strong>the</strong> taking-up and pursuit <strong>of</strong> <strong>the</strong> business <strong>of</strong> direct <strong>insurance</strong> o<strong>the</strong>r than life<br />
assurance and First Council Directive 79/267/EEC <strong>of</strong> 5 March 1979 on <strong>the</strong> coordination <strong>of</strong> laws, regulations and administrative<br />
provisions relating to <strong>the</strong> taking-up and pursuit <strong>of</strong> <strong>the</strong> business <strong>of</strong> direct life assurance.
According to a survey conducted by <strong>the</strong> Committee <strong>of</strong> European Insurance and Occupational<br />
Pensions Supervisors (hereinafter: CEIOPS) among Member States in 2010, only a few have registered<br />
subsidiaries from third countries. O<strong>the</strong>r than one Member, <strong>the</strong>re are no branches <strong>of</strong> companies<br />
from third countries acting within one Member State. <strong>The</strong> requests <strong>of</strong> intermediaries from third<br />
countries concerning <strong>the</strong> registration within one Member State are significantly low.<br />
<strong>The</strong> survey does not provide an explanation for this situation. <strong>The</strong> lack <strong>of</strong> attractiveness to<br />
<strong>insurance</strong> intermediaries <strong>of</strong> third countries to carry out business in one or more <strong>of</strong> <strong>the</strong> Member States<br />
may depend on several factors. <strong>The</strong> lack <strong>of</strong> legal certainty is definitely between <strong>the</strong>se factors and<br />
it is probably <strong>the</strong> most important <strong>of</strong> <strong>the</strong>m. 4 In any case, it appears as <strong>the</strong> factor on which <strong>the</strong> European<br />
Commission has focused its efforts, where it has to amend <strong>the</strong> provisions <strong>of</strong> <strong>the</strong> IMD.<br />
With <strong>the</strong> entry into force <strong>of</strong> <strong>the</strong> Solvency II Framework Directive, a risk-based solvency regime<br />
will be introduced for <strong>insurance</strong> <strong>under</strong>takings. This will also affect <strong>the</strong> relationship between <strong>insurance</strong><br />
<strong>under</strong>takings and policy holders. Against this background, Recital 139 <strong>of</strong> <strong>the</strong> Solvency II Directive invites<br />
<strong>the</strong> Commission to come forward with a proposal for <strong>the</strong> revision <strong>of</strong> <strong>the</strong> IMD, in order to extend <strong>the</strong><br />
benefits <strong>of</strong> a risk based solvency regime and increased transparency rules to policy holders. <strong>The</strong> Commission<br />
requested technical advice from CEIOPS on 27 January 2010, on some pr<strong>of</strong>iles <strong>of</strong> <strong>the</strong> IMD that<br />
<strong>the</strong> Commission has identified as likely to evolve. 5 CEIOPS provided its opinion on 10 November<br />
2010. 6 <strong>The</strong>n, <strong>the</strong> Commission issued a consultation document on 26 November 7 , held a public hearing<br />
with all interested parties on 10 December in Brussels 8 and set a deadline <strong>of</strong> 28 February 2011 to ga<strong>the</strong>r<br />
views on <strong>the</strong> mentioned document. As a result <strong>of</strong> this consultation, <strong>the</strong> Commission will adopt <strong>the</strong> draft<br />
containing <strong>the</strong> proposed amendments to <strong>the</strong> IMD, expected by end 2011 as stated in <strong>the</strong> Communication<br />
COM (2010) 301 final, 2 June 2010.<br />
Requesting <strong>the</strong> above technical advice from CEIOPS, <strong>the</strong> Commission would like to receive<br />
advice on <strong>the</strong> ways to improve <strong>the</strong> legal certainty <strong>of</strong> services <strong>of</strong>fered by <strong>insurance</strong> intermediaries,<br />
established in third countries, in <strong>the</strong> territory <strong>of</strong> Member States.<br />
CEIOPS answered that <strong>the</strong> IMD is less prescriptive concerning <strong>the</strong> relationship with third<br />
countries, in comparison with o<strong>the</strong>r European directives. This gave rise to <strong>the</strong> issues reported by <strong>the</strong><br />
CEIPOS as follows.<br />
Article 1(3) subparagraph 2, IMD states that it does not apply to intermediaries established in a<br />
third country. However, <strong>the</strong> statement is limited to <strong>the</strong> condition that “equal treatment is guaranteed to<br />
all persons …”. This condition is in some way ambiguous as it is not based on <strong>the</strong> superior law <strong>of</strong> <strong>the</strong><br />
Treaty. According to Article 49 and 56 TF<strong>EU</strong> in conjunction with Article 54 <strong>the</strong> freedom <strong>of</strong> services<br />
and <strong>the</strong> freedom <strong>of</strong> establishment does only apply to persons having <strong>the</strong> nationality <strong>of</strong> an <strong>EU</strong> Member<br />
State or being established according to <strong>the</strong> law <strong>of</strong> an <strong>EU</strong> Member State without any limitation.<br />
<strong>The</strong>refore, CEIOPS recommends that Article 1(3) subparagraph 2, IMD be amended to clarify<br />
<strong>the</strong> treatment <strong>of</strong> intermediaries from third countries. This amendment will have <strong>the</strong> effect <strong>of</strong><br />
<strong>the</strong>se intermediaries having to apply directly for ‘permission’ from every Member State that <strong>the</strong>y<br />
wish to carry out <strong>insurance</strong> inter<strong>mediation</strong> activities.<br />
In addition, CEIOPS points out that Articles 15 and 63 MiFID provide a basis for treatment<br />
<strong>of</strong> intermediaries from third countries which could be adapted for <strong>the</strong> IMD. <strong>The</strong>se provisions are related,<br />
respectively, to relations 9 and exchange <strong>of</strong> information 10 with third countries. On this basis,<br />
4 An explanation on <strong>the</strong> obstacles to <strong>the</strong> development <strong>of</strong> a cross border trade in markets for retail financial services is provided by <strong>the</strong><br />
Communication COM(2009) 204, which is available at http://ec.europa.eu/internal_market/finservicesretail/docs/investment_products/29042009_impact_assessment_en.pdf<br />
5 Paper s available at http://ec.europa.eu/internal_market/<strong>insurance</strong>/<strong>mediation</strong>_en.htm<br />
6 <strong>The</strong> technical advice issued by CEIOPS is available at https://eiopa.europa.eu/publications/submissions-to-<strong>the</strong>-ec/index.html<br />
7 Consultation document is available at http://ec.europa.eu/internal_market/<strong>insurance</strong>/<strong>mediation</strong>_en.htm<br />
8 Program is available at http://ec.europa.eu/internal_market/<strong>insurance</strong>/<strong>mediation</strong>_en.htm<br />
9 Article 15 MiFID states that:<br />
1. Member States shall inform <strong>the</strong> Commission <strong>of</strong> any general difficulties which <strong>the</strong>ir investment firms encounter in establishing<br />
<strong>the</strong>mselves or providing investment services and/or performing investment activities in any third country.<br />
2. Whenever it appears to <strong>the</strong> Commission, on <strong>the</strong> basis <strong>of</strong> information submitted to it <strong>under</strong> paragraph 1, that a third country does not<br />
grant Community investment firms effective market access comparable to that granted by <strong>the</strong> Community to investment firms from that
CEIPOS recommends that Article 1(3), IMD might be fur<strong>the</strong>r elaborated upon by reference to related<br />
provisions in MiFID (Articles 15 and 63), whereby: (a) difficulties in dealing with third countries<br />
might be drawn to <strong>the</strong> Commission’s attention; and (b) <strong>the</strong> possibility and conditions for exchanging<br />
information with third countries could be clearly articulated. 11<br />
O<strong>the</strong>r issue addressed by CEIOPS was summarized as follows: Should <strong>the</strong>re be set up some<br />
kind <strong>of</strong> relief for those intermediaries established in third countries who are already licensed for <strong>insurance</strong><br />
inter<strong>mediation</strong> in one Member State?<br />
third country, <strong>the</strong> Commission may submit proposals to <strong>the</strong> Council for an appropriate mandate for negotiation with a view to obtaining<br />
comparable competitive opportunities for Community investment firms. <strong>The</strong> Council shall act by a qualified majority.<br />
3. Whenever it appears to <strong>the</strong> Commission, on <strong>the</strong> basis <strong>of</strong> information submitted to it <strong>under</strong> paragraph 1, that Community investment<br />
firms in a third country are not granted national treatment affording <strong>the</strong> same competitive opportunities as are available to<br />
domestic investment firms and that <strong>the</strong> conditions <strong>of</strong> effective market access are not fulfilled, <strong>the</strong> Commission may initiate negotiations<br />
in order to remedy <strong>the</strong> situation.<br />
In <strong>the</strong> circumstances referred to in <strong>the</strong> first subparagraph, <strong>the</strong> Commission may decide, in accordance with <strong>the</strong> procedure referred<br />
to in Article 64(2), at any time and in addition to <strong>the</strong> initiation <strong>of</strong> negotiations, that <strong>the</strong> competent authorities <strong>of</strong> <strong>the</strong> Member States<br />
must limit or suspend <strong>the</strong>ir decisions regarding requests pending or future requests for authorisation and <strong>the</strong> acquisition <strong>of</strong> holdings<br />
by direct or indirect parent <strong>under</strong>takings governed by <strong>the</strong> law <strong>of</strong> <strong>the</strong> third country in question. Such limitations or suspensions<br />
may not be applied to <strong>the</strong> setting-up <strong>of</strong> subsidiaries by investment firms duly authorised in <strong>the</strong> Community or by <strong>the</strong>ir subsidiaries,<br />
or to <strong>the</strong> acquisition <strong>of</strong> holdings in Community investment firms by such firms or subsidiaries. <strong>The</strong> duration <strong>of</strong> such measures<br />
may not exceed three months.<br />
Before <strong>the</strong> end <strong>of</strong> <strong>the</strong> three-month period referred to in <strong>the</strong> second subparagraph and in <strong>the</strong> light <strong>of</strong> <strong>the</strong> results <strong>of</strong> <strong>the</strong> negotiations,<br />
<strong>the</strong> Commission may decide, in accordance with <strong>the</strong> procedure referred to in Article 64(2), to extend <strong>the</strong>se measures.<br />
4. Whenever it appears to <strong>the</strong> Commission that one <strong>of</strong> <strong>the</strong> situations referred to in paragraphs 2 and 3 obtains, <strong>the</strong> Member States<br />
shall inform it at its request:<br />
(a) <strong>of</strong> any application for <strong>the</strong> authorisation <strong>of</strong> any firm which is <strong>the</strong> direct or indirect subsidiary <strong>of</strong> a parent <strong>under</strong>taking governed by <strong>the</strong><br />
law <strong>of</strong> <strong>the</strong> third country in question;<br />
(b) whenever <strong>the</strong>y are informed in accordance with Article 10(3) that such a parent <strong>under</strong>taking proposes to acquire a holding in a<br />
Community investment firm, in consequence <strong>of</strong> which <strong>the</strong> latter would become its subsidiary.<br />
That obligation to provide information shall lapse whenever agreement is reached with <strong>the</strong> third country concerned or when<br />
<strong>the</strong> measures referred to in <strong>the</strong> second and third subparagraphs <strong>of</strong> paragraph 3 cease to apply.<br />
5. Measures taken <strong>under</strong> this Article shall comply with <strong>the</strong> Community's obligations <strong>under</strong> any international agreements, bilateral<br />
or multilateral, governing <strong>the</strong> taking-up or pursuit <strong>of</strong> <strong>the</strong> business <strong>of</strong> investment firms.<br />
10 Article 63 MiFID states that:<br />
1. Member States may conclude cooperation agreements providing for <strong>the</strong> exchange <strong>of</strong> information with <strong>the</strong> competent authorities<br />
<strong>of</strong> third countries only if <strong>the</strong> information disclosed is subject to guarantees <strong>of</strong> pr<strong>of</strong>essional secrecy at least equivalent to those required<br />
<strong>under</strong> Article 54. Such exchange <strong>of</strong> information must be intended for <strong>the</strong> performance <strong>of</strong> <strong>the</strong> tasks <strong>of</strong> those competent authorities.<br />
Member States may transfer personal data to a third country in accordance to Chapter IV <strong>of</strong> Directive 95/46/EC.<br />
Member States may also conclude cooperation agreements providing for <strong>the</strong> exchange <strong>of</strong> information with third country authorities, bodies<br />
and natural or legal persons responsible for:<br />
(i) <strong>the</strong> supervision <strong>of</strong> credit institutions, o<strong>the</strong>r financial organisations, <strong>insurance</strong> <strong>under</strong>takings and <strong>the</strong> supervision <strong>of</strong> financial markets;<br />
(ii) <strong>the</strong> liquidation and bankruptcy <strong>of</strong> investment firms and o<strong>the</strong>r similar procedures;<br />
(iii) carrying out statutory audits <strong>of</strong> <strong>the</strong> accounts <strong>of</strong> investment firms and o<strong>the</strong>r financial institutions, credit institutions and <strong>insurance</strong><br />
<strong>under</strong>takings, in <strong>the</strong> performance <strong>of</strong> <strong>the</strong>ir supervisory functions, or which administer compensation schemes, in <strong>the</strong> performance<br />
<strong>of</strong> <strong>the</strong>ir functions;<br />
(iv) overseeing <strong>the</strong> bodies involved in <strong>the</strong> liquidation and bankruptcy <strong>of</strong> investment firms and o<strong>the</strong>r similar procedures;<br />
(v) overseeing persons charged with carrying out statutory audits <strong>of</strong> <strong>the</strong> accounts <strong>of</strong> <strong>insurance</strong> <strong>under</strong>takings, credit institutions, investment<br />
firms and o<strong>the</strong>r financial institutions,<br />
only if <strong>the</strong> information disclosed is subject to guarantees <strong>of</strong> pr<strong>of</strong>essional secrecy at least equivalent to those required <strong>under</strong> Article<br />
54. Such exchange <strong>of</strong> information must be intended for <strong>the</strong> performance <strong>of</strong> <strong>the</strong> tasks <strong>of</strong> those authorities or bodies or natural or<br />
legal persons.<br />
2. Where <strong>the</strong> information originates in ano<strong>the</strong>r Member State, it may not be disclosed without <strong>the</strong> express agreement <strong>of</strong> <strong>the</strong> competent<br />
authorities which have transmitted it and, where appropriate, solely for <strong>the</strong> purposes for which those authorities gave <strong>the</strong>ir<br />
agreement. <strong>The</strong> same provision applies to information provided by third country competent authorities.<br />
11 By adhering to this approach, however, Article 177 <strong>of</strong> <strong>the</strong> Solvency II Directive could be adapted to <strong>the</strong> <strong>insurance</strong> <strong>mediation</strong> without<br />
any prejudice to <strong>the</strong> prerogatives <strong>of</strong> each Member States. <strong>The</strong>y shall inform - hypo<strong>the</strong>tically - <strong>the</strong> Commission <strong>of</strong> any general<br />
difficulties encountered by <strong>the</strong>ir <strong>insurance</strong> or re<strong>insurance</strong> intermediaries in establishing <strong>the</strong>mselves and operating in a third country<br />
or pursuing activities in a third country, while <strong>the</strong> Commission shall, periodically, submit a report to <strong>the</strong> Council examining <strong>the</strong> treatment<br />
accorded, in third countries, to <strong>insurance</strong> or re<strong>insurance</strong> intermediaries authorised in <strong>the</strong> Community, toge<strong>the</strong>r with any appropriate<br />
proposals or recommendations.
CEIOPS acknowledged that Directive 2005/36/EC on <strong>the</strong> recognition <strong>of</strong> pr<strong>of</strong>essional qualifications<br />
does apply only to persons having <strong>the</strong> nationality <strong>of</strong> an <strong>EU</strong> Member State. 12 <strong>The</strong>refore CEIOPS<br />
considered <strong>the</strong> pros and cons <strong>of</strong> facilitating freedom <strong>of</strong> services and freedom <strong>of</strong> establishment for intermediaries<br />
established in third countries already licensed by one Member States and concluded that because<br />
<strong>of</strong> <strong>the</strong> harmonization by <strong>the</strong> IMD, Member States have <strong>the</strong> same minimum standards for <strong>insurance</strong><br />
inter<strong>mediation</strong> as a basis for <strong>the</strong> mutual recognition <strong>of</strong> a license given to an intermediary established in a<br />
third country. As such, CEIOPS recommends that Member States may retain <strong>the</strong> ability to apply ‘due<br />
credit’ to an application for registration <strong>of</strong> an intermediary already registered in ano<strong>the</strong>r Member State,<br />
but this should be an option and not be binding on Competent Authorities in every circumstance.<br />
<strong>The</strong> last issue considered by CEIOPS concerns <strong>the</strong> possibility that IMD contains an explicit<br />
authorisation provision for Member States to conclude agreements with one or more third countries<br />
to apply certain provisions <strong>of</strong> <strong>the</strong> IMD.<br />
CEIOPS concluded that it was not necessary to introduce new provisions in IMD in respect<br />
<strong>of</strong> agreements between Member States and third countries on <strong>the</strong> treatment <strong>of</strong> third country intermediaries,<br />
while <strong>the</strong> Competent Authorities in each Member State is responsible for <strong>the</strong> application <strong>of</strong><br />
IMD provisions to intermediaries from third countries.<br />
According to this approach, <strong>the</strong> power to negotiate agreements with a third country should<br />
be retained by each Member State, without <strong>the</strong> Commission may act in this filed at <strong>the</strong> request <strong>of</strong> a<br />
Member State or on its own initiative. This suggestion reflects a more general approach <strong>of</strong> CEIOPS,<br />
which seems to consider <strong>the</strong> market <strong>of</strong> <strong>insurance</strong> products as essentially on domestic basis. This is<br />
true with respect to <strong>the</strong> present moment, but <strong>the</strong> Commission wants to go fur<strong>the</strong>r by removing national<br />
barriers to create a genuine Single market.<br />
<strong>The</strong> development <strong>of</strong> <strong>the</strong> international <strong>dimension</strong> <strong>of</strong> <strong>insurance</strong> <strong>mediation</strong>, <strong>the</strong>n, is related to<br />
<strong>the</strong> ability <strong>of</strong> <strong>the</strong> Commission to introduce a higher level <strong>of</strong> harmonization in order to also increase<br />
<strong>the</strong> cross-border activity within <strong>the</strong> Single market. Achieving a level <strong>of</strong> harmonization in <strong>the</strong> rules<br />
for taking up and pursuing <strong>insurance</strong> <strong>mediation</strong>, which is comparable to that achieved with respect<br />
to <strong>insurance</strong> (and re<strong>insurance</strong>) <strong>under</strong>takings, is probably necessary to assume a right to negotiate<br />
with third countries entrusted to <strong>the</strong> Commission pursuant to <strong>the</strong> Treaty.<br />
<strong>The</strong> IMD aims to guarantee a high level <strong>of</strong> consumer protection. <strong>The</strong> Commission services<br />
initiated an implementation check <strong>of</strong> <strong>the</strong> IMD in 2005. According to this review, Commission found<br />
that IMD has established a legal framework, aiming at a high level <strong>of</strong> pr<strong>of</strong>essionalism and competence<br />
among <strong>insurance</strong> intermediaries. A centralised registration system for <strong>insurance</strong> intermediaries<br />
provides a mechanism for <strong>the</strong> pro<strong>of</strong> <strong>of</strong> pr<strong>of</strong>essional requirements and facilitates cross border activities<br />
by way <strong>of</strong> freedom <strong>of</strong> establishment and freedom to provide services. 13 Due to its minimum<br />
harmonisation character, however, a patchwork <strong>of</strong> national regulations has emerged in Member States.<br />
This has lead to significant gaps and inconsistencies as far as <strong>the</strong> activity <strong>of</strong> <strong>insurance</strong> <strong>mediation</strong><br />
is concerned. 14<br />
<strong>The</strong> upcoming changes to <strong>the</strong> IMD should be directed exclusively towards overcoming national<br />
barriers, so as to harmonize <strong>the</strong> rules in <strong>the</strong> Single market and level <strong>the</strong> playing field between<br />
<strong>the</strong> various intermediaries regardless <strong>of</strong> <strong>the</strong>ir nationality. <strong>The</strong> existence <strong>of</strong> common rules allow <strong>the</strong><br />
Commission to negotiate with third countries similar rules, effective for all Member States, instead<br />
<strong>of</strong> several bilateral agreements between individual States (members and third countries).<br />
Looking at <strong>the</strong> technical advice issued by CEIOPS, however, <strong>the</strong> impression is that national<br />
supervisors who were all members <strong>of</strong> that committee do not want to lose <strong>the</strong>ir regulatory powers in<br />
12 According to Article 3(3) Directive 2005/36/EC, formal qualifications issued by a third country shall be regarded as evidence <strong>of</strong><br />
formal qualifications if <strong>the</strong> holder has three years' pr<strong>of</strong>essional experience in <strong>the</strong> pr<strong>of</strong>ession concerned on <strong>the</strong> territory <strong>of</strong> <strong>the</strong> Member<br />
State which recognised that evidence <strong>of</strong> formal qualifications in accordance with this Directive, certified by that Member State.<br />
13 See also CEIOPS’ Report on <strong>the</strong> Implementation <strong>of</strong> <strong>the</strong> Insurance Mediation Directive’s Key Provisions, at http://www.ceiops.eu/media/files/publications/submissionsto<strong>the</strong>ec/CEIOPS-DOC-09<br />
07IMDReport.pdf<br />
14 See COMMISSION STAFF WORKING PAPER, Consultation document on <strong>the</strong> Review <strong>of</strong> <strong>the</strong> Insurance Mediation Directive<br />
(IMD), at http://ec.europa.eu/internal_market/consultations/docs/2010/<strong>insurance</strong>-<strong>mediation</strong>/consultation-document_en.pdf
favor <strong>of</strong> EIOPA , which is <strong>the</strong> newly formed European Authority in Insurance. Will Member States<br />
give up <strong>the</strong>ir legislative power to negotiate bilateral agreements with third countries in favor <strong>of</strong> <strong>the</strong><br />
<strong>EU</strong> Commission?<br />
<strong>The</strong> upcoming draft proposal <strong>of</strong> <strong>the</strong> new IMD will be an opportunity to assess <strong>the</strong> contents<br />
<strong>of</strong> <strong>the</strong> amendments to <strong>the</strong> current Directive, but it also seems a check-up on <strong>the</strong> health <strong>of</strong> <strong>the</strong> European<br />
integration process.<br />
SUMMARY<br />
<strong>The</strong> development <strong>of</strong> <strong>the</strong> international <strong>dimension</strong> <strong>of</strong> <strong>insurance</strong> <strong>mediation</strong> needs to improve<br />
especially <strong>the</strong> legal certainty <strong>of</strong> services <strong>of</strong>fered by <strong>insurance</strong> intermediaries, established in third countries,<br />
in <strong>the</strong> territory <strong>of</strong> Member States. <strong>The</strong> <strong>EU</strong> Commission has several options to achieve this<br />
goal. Some <strong>of</strong> <strong>the</strong>m require technical solutions, while o<strong>the</strong>rs appear to be more dependent on political<br />
decisions, which should settle <strong>the</strong> Commission's aspirations to a higher level <strong>of</strong> harmonization,<br />
<strong>the</strong> latent strengths <strong>of</strong> national supervisory authorities and <strong>the</strong> nascent ambitions <strong>of</strong> a new European<br />
technocracy.