STATUTORY INSTRUMENTS

S.I. No. 13 of 2005

European Communities (Insurance Mediation) Regulations 2005

I, Brian Cowen, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), as amended by the European Communities (Amendment) Act 1993 (No. 25 of 1993), and for the purpose of giving effect to Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002, hereby make the following Regulations:

Part 1

PRELIMINARY AND GENERAL

Citation and commencement

1.       (1)       These Regulations may be cited as the European Communities (Insurance Mediation) Regulations 2005.

(2)       These Regulations come into operation on 14 January 2005.

Object and scope of these regulations

2.       (1)       The objective of these Regulations is to give effect to Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation.

These Regulations lay down rules for undertaking insurance mediation and reinsurance mediation by persons who undertake or wish to undertake either or both of those act

Interpretation

3.       (1)       In these Regulations, except where the context otherwise requires--

“application” means an application for registration as an insurance intermediary or reinsurance intermediary;

“authorised officer” means a person appointed and holding office under Regulation 28;

“the Bank” means the Central Bank and Financial Services Authority of Ireland;

“certificate of registration” means a certificate of registration issued to an insurance intermediary or reinsurance intermediary in accordance with these Regulations;

“durable medium” means anything that--

(a)      enables information to be stored in a way that is accessible for future reference for a period of time adequate to the purposes of the information, and

(b)      allows the unchanged reproduction of the information stored,

but does not include internet sites that do not meet the criteria set out in paragraphs (a) and (b) of this definition;

“insurance intermediary” means a person who, for remuneration, undertakes or purports to undertake insurance mediation;

“insurance mediation” means any activity involved in proposing or undertaking preparatory work for entering into insurance contracts, or of assisting in the administration and performance of insurance contracts that have been entered into (including dealing with claims under insurance contracts), but does not include such an activity that--

(a)      is undertaken by an insurance undertaking or an employee of such an undertaking in the employee’s capacity as such, or

(b)      involves the provision of information on an incidental basis in conjunction with some other professional activity, so long as the purpose of the activity is not to assist a person to enter into or perform an insurance contract, or

(c)      involves the management of claims of an insurance undertaking on a professional basis, or

(d)  involves loss adjusting or expert appraisal of claims for reinsurance undertakings;

“the Insurance Mediation Directive” means Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation;

“insurance undertaking” has the same meaning as in the Insurance Act 1989 ;

“large risks” has the meaning given by Article 3A of the European Communities (Non-Life Insurance) Regulations 1976 (S.I. 115/1976);

“Member State” means a Member State of the European Communities;

“the Minister” means the Minister for Finance;

“other Member State” means a Member State other than the State;

“record” means any record of information, however compiled, recorded or stored, and includes--

(a)        any book, a register and any other document containing information, and

(b) any disc, tape or other article from which information is capable of being produced in any form capable of being reproduced visually or aurally,

and also includes part of a record;

“the Register” means the Register of Insurance Mediation Intermediaries established and maintained under Regulation 25;

“registered” means registered under these Regulations or under a law of another Member State that corresponds to these Regulations;

“reinsurance intermediary” means a person who, for remuneration, undertakes or purports to undertake reinsurance mediation;

“reinsurance mediation” means any activity involved in proposing or undertaking preparatory work for entering into reinsurance contracts, or of assisting in the administration and performance of reinsurance contracts that have been entered into (including dealing with claims under reinsurance contracts), but does not include such an activity that--

(a)        is undertaken by a reinsurance undertaking or an employee of such an undertaking in the employee’s capacity as such, or

(b)        involves the provision of information on an incidental basis in conjunction with some other professional activity, so long as the purpose of the activity is not to assist a person to enter into or perform a reinsurance contract, or

(c)        involves the management of claims of a reinsurance undertaking on a professional basis, or

(c)  involves loss adjusting or expert appraisal of claims for insurance undertakings;

(d)

“reinsurance undertaking” means an undertaking, other than an insurance undertaking or an insurance undertaking based outside the European Communities, the main business of which consists of accepting risks ceded by an insurance undertaking, an insurance undertaking based outside the European Communities or any other reinsurance undertaking;

“third country” means a country that is not a Member State, and includes a state, province, region or dependent territory of such a country;

“tied insurance intermediary” means any person--

(a)        who undertakes insurance mediation for and on behalf of one or more insurance undertakings in the case of insurance products that are not in competition, and

(b)        who acts under the direction of those undertakings;

“the 1995 Act” means the Investment Intermediaries Act 1995 (No. 11 of 1995).

(2)       In these Regulations--

(a)    a reference to a Part or Regulation is a reference to a Part or Regulation of these Regulations, and

(b)  a reference to a paragraph or a subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs,

(c)

unless in either case it is indicated that reference to some other provision is intended.

(3)       If a word or expression that is not defined in this Regulation is used in these Regulations and is also used in the Insurance Mediation Directive, the word or expression has, unless the context otherwise requires, the same meaning in these Regulations as it has in that Directive.

(4)       If an enactment or statutory instrument referred to in these Regulations has been amended, or is amended after these Regulations come into operation, the reference is taken to be a reference to the enactment or statutory instrument as amended.

(5)       The Bank is the competent authority in the State for the purposes of the application of the Insurance Mediation Directive to the State.

Non-application of these Regulations

4.       (1)       These Regulations do not--

(a)    apply to or in respect of insurance and reinsurance mediation services provided in relation to risks and commitments arising in a country elsewhere than in a Members State, or

(b)    apply to insurance mediation activities carried out in third countries or to activities of insurance or reinsurance undertakings, as defined in--

(i)       the First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, and

(ii)  First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance, carried out through insurance intermediaries in third countries.

(2)       These regulations do not affect the law of the State relating to insurance mediation business undertaken by insurance and reinsurance intermediaries established in a third country and operating within that State under the principle of freedom to provide services, so long as equal treatment is guaranteed to all persons carrying out or authorised to carry out insurance mediation activities in that State.

Part 2

REGISTRATION REQUIREMENTS

Person not to carry on insurance mediation business unless registered

5.       (1)       A person shall not, in the State or in any other Members State, undertake or purport to undertake insurance mediation or reinsurance mediation, unless the person--

(a)    is registered as an insurance intermediary or reinsurance intermediary or

(b)    is exempt from registration under these Regulations.

(2)       A person who contravenes paragraph (1) commits an offence.

(3)       The Bank shall take all reasonably practicable measures to ensure that persons who contravene paragraph (1) cease to undertake insurance mediation or reinsurance mediation within the State and within every other Member State.

Persons who are exempt from registration

6.       (1)       A person who provides a mediation service for insurance contracts is exempt from registration under these Regulations only if all of the following conditions are satisfied:

(a)    the contracts require only knowledge of the insurance cover that is provided under them;

(b)    the contracts are not for the provision of life assurance;

(c)    the insurance contracts do not cover risks for which the insurers may be liable to indemnify the insured;

(d)    the person’s principal professional activity is not insurance mediation;

(e)    the insurance provided is complementary--

(i)    to a contract for supply of goods and cover the risk of breakdown, loss of or damage to those goods, or

(ii)    to a contract for the provision of travel and cover damage to or loss of baggage and other risks linked to the travel, even if the insurance also covers life assurance or liability risks, so long as the last-mentioned cover is ancillary to the main cover for the risks linked to the travel;

(f)     none of the annual premiums payable under the contracts exceeds €500 and none of the contracts (including renewals) is for a term of more than 5 years.

(2)       A credit institution that immediately before the coming into operation of these Regulations was undertaking insurance mediation or reinsurance mediation is exempt from registration under these Regulations.

Application for registration as an insurance intermediary or reinsurance intermediary

7.--(1) A person who wishes to be registered as an insurance intermediary or reinsurance intermediary shall make an application to the Bank in accordance with this Regulation.

(2)       An application must--

(a)    be in a form approved by the Bank, and

(b)    contain such information, and be accompanied by such documents, as the Bank requires, and

(c)    be accompanied by the fee (if any) prescribed under section 33K of the Central Bank Act 1942 for the purposes of this section..

(3)       The Bank may, by written notice given to an applicant, require the applicant to provide such additional information and documents as are reasonably necessary to enable it to determine the application. If such a requirement is not complied with within a period specified in the notice, not less than 14 days, the Bank may reject the application.

(4)       Nothing in this Regulation prevents the same person from making an application for registration as an insurance intermediary and an application for registration as a reinsurance intermediary.

Grant and refusal of applications for registration.

8.--(1) The Bank shall register an applicant as an insurance intermediary or reinsurance intermediary if it is satisfied that the applicant is or will be able to undertake, in a proper manner, the responsibilities that are imposed on insurance intermediaries or reinsurance intermediaries by or under these Regulations but, if not so satisfied, it shall refuse the applicant’s application.

(2)       On granting an application, the Bank shall--

(a)    record the appropriate particulars of the applicant in the Register, and

(b)    issue the applicant with a certificate of registration certifying as an insurance intermediary or reinsurance intermediary.

(3)       A certificate of registration--

(a)    must be in a form that will enable any interested party, by consulting the Register, to verify that the holder of the certificate is duly registered as an insurance intermediary or reinsurance intermediary, and

(b)    whether or not any other information is included, must provide the information specified in Regulation 13(1)(a) or (b), and, in the case of a certificate issued to a body corporate, specify the name or names of the person or persons who are concerned in the direction or management of the body.

(4)       The Bank may not refuse an application without giving the applicant an opportunity to make representations in writing as to why the application should not be refused.

(5)       If the Bank refuses an application, it shall promptly give to the applicant a written notice of refusal, which must include a statement setting out the reasons for the refusal.

(6)       If--

(a)    at the end of 6 months after the date on which the Bank has received an application, or

(b) if the Bank has required the applicant to provide it with additional information or documents in relation to the application, at the end of 6 months after the receipt by it of the additional information or documents or at the end of 12 months after the date on which the Bank received the application (whichever first occurs),

the Bank has failed to inform the applicant whether or not the application has been granted, the application is taken to have been granted at the end of that period.

Effect of registration

9.       (1)       A registered insurance intermediary or reinsurance intermediary is entitled to undertake insurance mediation or reinsurance mediation in the State and in each of the other Member States subject to compliance with the requirements imposed by or under these Regulations and any restrictions imposed by law.

(2)       A registered insurance intermediary or reinsurance intermediary is entitled to undertake insurance mediation or reinsurance mediation in each of the other Member States subject to compliance with the requirements imposed by or under the law of that other Member State that corresponds to these Regulations.

(3)       The fact that the Bank has registered a person as an insurance intermediary or reinsurance intermediary does not of itself make the Bank liable for any financial loss incurred by a person--

(a)    because the intermediary, any of its officers, employees or agents has contravened or failed to comply with a provision of these Regulations, or any condition of the intermediary’s registration, or

(b)    because the intermediary has become subject to an insolvency process.

(4)       The registration of an insurance intermediary or reinsurance intermediary remains in force until it is cancelled under this Part.

Cancellation of registration by Bank on application of insurance intermediary or reinsurance intermediary

10.     (1)       The Bank may, if it is satisfied that it is appropriate to do so, cancel the registration of an insurance intermediary or reinsurance intermediary on the application of the intermediary. The application must be accompanied by the intermediary’s certificate of registration.

(2)       An insurance intermediary or reinsurance intermediary whose registration is cancelled under this Regulation ceases to be entitled to undertake insurance or reinsurance mediation.

Cancellation of registration otherwise than on application of insurance intermediary or reinsurance intermediary

11.     (1)       The Bank shall cancel the registration of an insurance intermediary or reinsurance intermediary on being satisfied on reasonable grounds that the intermediary is failing or has failed to comply with any of the requirements imposed by or under Part 3.

(2)       The Bank may also cancel the registration of an insurance intermediary or a reinsurance intermediary on any of the following grounds:

(a)    the intermediary has not undertaken insurance mediation or reinsurance mediation within the immediately preceding 6 months;

(b)    the registration was obtained by means of a false or misleading representation;

(c)    the intermediary has become subject to an insolvency process, such as. winding-up or bankruptcy;

(d)    since the intermediary was registered, the circumstances under which the registration took place have changed to the extent that an application for registration would be refused had it been made in the changed circumstances;

(e)    the intermediary, or if it is a body corporate or partnership, any person concerned in its direction or management, is convicted of--

(i)       an offence under these Regulations or under any enactment or statutory instrument specified in Schedule 2 to the Central Bank Act 1942 , or

(ii)  an offence involving fraud, dishonesty or breach of trust.

(3)       An insurance intermediary or reinsurance intermediary whose registration is cancelled under this Regulation ceases to be entitled to undertake insurance or reinsurance mediation.

(4)       The Bank may cancel the registration of an insurance intermediary or reinsurance intermediary under this Regulation only after it has, by notice in writing given to the intermediary, informed the intermediary of its intention to cancel that registration. The notice must specify--

(a)    the grounds on which it is proposed to cancel the intermediary’s registration, and

(b)    that the intermediary may, within 21 days after the giving of the notice, make written representations to the Bank showing why the registration should not be cancelled.

(5)       Not later than 21 days after being given a notice under paragraph (3), the intermediary may make written representations to the Bank as to why the intermediary’s registration should not be cancelled.

(6)       As soon as practicable after cancelling the registration of an insurance intermediary or reinsurance intermediary under this Regulation, the Bank shall give written notice of the cancellation to the intermediary. The notice must include a statement of the reasons for the cancellation.

(7)       An insurance intermediary or reinsurance intermediary whose registration is cancelled under this Regulation shall return the certificate of registration to the competent authority without delay.

(8)       An insurance intermediary or reinsurance intermediary who, without reasonable excuse, fails to comply with paragraph (7) commits an offence.

Consequences of cancellation of registration under this Part as regards other Member States

12.     (1)       On cancelling the registration of an insurance intermediary or reinsurance intermediary under this Part, the Bank shall notify the cancellation to the relevant competent authorities of the other Member States.

(2)       If the Bank cancels the registration of an insurance intermediary or reinsurance intermediary whose original place of registration was the State, the cancellation extends not only to the intermediary’s registration in the State but also to every other Member state where the intermediary undertakes insurance mediation or reinsurance mediation.

(3)       If the Bank cancels the registration of an insurance intermediary or reinsurance intermediary whose original place of registration is another Member State, the cancellation extends only to the intermediary’s registration in the State.

Part 3

OBLIGATIONS OF INSURANCE ANDREINSURANCE UNDERTAKINGS AND INSURANCE AND REINSURANCE INTERMEDARIES

Obligations of insurance undertakings and reinsurance undertakings with respect to insurance intermediaries and reinsurance intermediaries

13      (1)       Every insurance undertaking shall take all reasonable steps to ensure that all insurance intermediaries acting on its behalf comply with the requirements imposed by the Bank under these Regulations.

(2)       After consulting the Minister and other interested parties, the Bank shall, whenever it considers it appropriate, prescribe and promulgate requirements for the purposes of paragraph (1).

Certain requirements to be complied with by insurance intermediaries and reinsurance intermediaries

14.     (1)       Every insurance intermediary shall ensure that the intermediary has at all times the knowledge and ability to be able to comply with the requirements imposed on insurance intermediaries by or under these Regulations.

(2)       Every reinsurance intermediary shall ensure that the intermediary has at all times the knowledge and ability to be able to comply with the requirements imposed on reinsurance intermediaries by or under these Regulations.

Insurance intermediaries and reinsurance intermediaries to be able to demonstrate certain knowledge and ability

15.     (1)       An insurance intermediary or reinsurance intermediary shall, to the extent required by the Bank to do so, ensure that--

(a)    a reasonable proportion of the persons concerned in the direction and management of the undertaking who are responsible for mediation in respect of insurance products, and

(b)    all other persons directly involved in insurance or reinsurance mediation,

demonstrate the knowledge and ability necessary to enable them to undertake their responsibilities with respect to insurance mediation or reinsurance mediation.

(2)       After consulting the Minister and other interested parties, the Bank shall, whenever it considers it appropriate, prescribe and promulgate requirements for the purposes of paragraph (1).

Insurance intermediary to take steps to protect customers

16.     (1)       Every insurance intermediary shall take all necessary steps to protect customers against the inability of the intermediary, in an appropriate case--

(a)    to transfer to the relevant insurance undertaking premiums paid by those customers, and

(b)    to transfer the amounts of claims made by those customers [to?], and

(c)    to return premiums paid to those customers.

(2)       Without limiting paragraph (1), the following provisions apply for the purpose of providing protection to customers of an insurance intermediary:

(a)    premiums paid by a customer to the intermediary are taken to have been paid to the relevant insurance undertaking;

(b)    money paid by an insurance undertaking to the intermediary for a customer are taken not to have been paid to the customer until the customer actually receives it;

(c)    the intermediary shall ensure that premiums and other money paid to the intermediary by customers or by an insurance undertaking are held in, and only transferred by means of, strictly segregated client trust accounts and that the money held in those accounts cannot be used to reimburse other creditors should the intermediary become insolvent.

Insurance intermediaries and reinsurance intermediaries to hold professional indemnity insurance

17      (1)       Every insurance intermediary and every reinsurance intermediary shall hold satisfactory professional indemnity insurance covering all of the Member States or some other comparable guarantee against liability arising from professional negligence--

(a)    for not less than the first prescribed amount for each claim received within each calendar year, and

(b)  in aggregate, for not less than the second prescribed amount for all claims received within that year,

unless the insurance or other guarantee is already provided by an insurance undertaking, a reinsurance undertaking or other undertaking on whose behalf the insurance or reinsurance intermediary is acting, or for which it is empowered to act, or the undertaking has taken full responsibility for the intermediary’s actions.

(2)       For the purposes of paragraph (1)--

(a)    the first prescribed amount is €1,000,000 or, if that amount (including that amount as adjusted) is adjusted under paragraph (3), the adjusted amount, and

(b)    the second prescribed amount is €1,500,000 or, if that amount (including that amount as adjusted) is adjusted under that paragraph, the adjusted amount.

(3)       The Bank shall adjust the amounts referred to in paragraph (5) by reference to changes in the European Index of Consumer Prices as published by Eurostat. The first review must take place on or before the fifth anniversary of the date on which these Regulations came into force and on or before each subsequent fifth anniversary of the date of the immediately preceding review.

(4)       As soon as practicable after adjusting the prescribed amounts, the Bank shall notify those amounts in a publication accessible to insurance intermediaries and reinsurance intermediaries.

(5)       The adjustments made under paragraph (3) take effect on the date on which they are notified under paragraph (4) or on such later date as is specified in the notification.

(6)       Professional indemnity insurance is not satisfactory for the purposes of paragraph (1) if the amount of excess (if any) for which the intermediary is responsible under the relevant insurance policy exceeds of the amount of cover provided to the intermediary under the policy.

Notification of establishment and services in other Member States

18.     (1)       A registered insurance intermediary or registered reinsurance intermediary that intends, for the first time, to undertake insurance mediation in another Member State shall notify its intention to the Bank in writing.

(2)       Within 1 month after being notified that an insurance intermediary or reinsurance intermediary intends, for the first time, to undertake insurance mediation in another Member State, the Bank--

(a)    shall notify the competent authority of the other Member State concerned, and

(b) shall at the same time tell the intermediary that it has notified that competent authority.

This paragraph does not apply if the competent authority of that other Member State has expressly stated that it does not wish to be notified of such intentions.

(3)       Such an insurance intermediary or reinsurance intermediary may begin to undertake insurance mediation or reinsurance mediation in the other Member State concerned after the expiry of 1 month from the date on which the intermediary was notified by the Bank in accordance with paragraph (2). However, if the competent authority of the other Member State does not wish to be notified of the intermediary’s intention to undertake insurance mediation or reinsurance mediation within its jurisdiction, the intermediary can begin to undertake insurance mediation immediately.

(4)       An insurance intermediary or reinsurance intermediary of another Member State shall not undertake insurance mediation in the State until the competent authority of that other Member State has notified the Bank that the intermediary is registered in that other Member State.

(5)       Before imposing additional conditions with which insurance intermediaries or reinsurance intermediaries of another jurisdiction must comply before they may undertake insurance mediation in the State, it shall publish those conditions in such publication as the Bank decides.

Insurance intermediaries to provide certain information to their customers

19.     (1)       Before entering into an initial insurance contract with a customer, or a contract varying or renewing such a contract, an insurance intermediary shall, whether or not the intermediary provides the customer with any other information, provide the customer with the following information:

(a)    the intermediary’s identity and address;

(b)    particulars of the register in which the intermediary is registered and the means for verifying that the intermediary is registered;

(c)    whether the intermediary holds, directly or indirectly, more than 10 per cent of the voting rights or of the capital in a given insurance undertaking;

(d)    whether any particular insurance undertaking, or any parent undertaking of a particular insurance undertaking, holds, directly or indirectly, more than 10 per cent of the voting rights or the capital in the intermediary;

(e)    the procedures under which customers of insurance intermediaries and other interested parties can make complaints to, and seek redress through, the Financial Services Ombudsman concerning insurance intermediaries.

(2)       The insurance intermediary shall also inform the customer whether the intermediary--

(a)    gives advice based on the obligation in paragraph (3) to provide a fair analysis, or

(b)    is under a contractual obligation to conduct insurance mediation business exclusively with one or more insurance undertakings, or

(c)    is not under a contractual obligation to conduct insurance mediation business exclusively with one or more insurance undertakings and does not give advice based on the obligation in paragraph (6) to provide a fair analysis.

(3)       An insurance intermediary who is under a contractual obligation of the kind referred to in paragraph (2)(b) shall, if asked to do so by the customer, provide the customer with the names and addresses of those undertakings.

(4)       An insurance intermediary who is under a contractual obligation of the kind referred to in paragraph (2)(c) shall, if asked to do so by the customer, provide the customer with the names and addresses of the insurance undertakings with which the intermediary may and does conduct business.

(5)       An insurance intermediary who is required to provide information to the customer only when the customer asks for it shall tell the customer of the requirement.

(6)       An insurance intermediary who informs a customer that the intermediary gives advice on the basis of a fair analysis shall give that advice on the basis of an analysis of a sufficiently large number of insurance contracts available on the market, to enable the intermediary to make a recommendation, in accordance with professional criteria, as to which insurance contract would be adequate to meet the customer’s needs.

(7)       Before entering into a contract with a customer relating to the provision of a particular insurance product, an insurance intermediary shall, on the basis of information provided by the customer, specify to the customer both the customer’s demands and needs and the reasons underlying any advice given to the customer. The intermediary shall, so far as necessary, modify the information according to the complexity of the insurance contract being proposed.

(8)       Nothing in this Regulation prevents an insurance intermediary from providing a customer with additional information so long as that information is not inconsistent with the information required to be provided under this Regulation.

(9)       An insurance intermediary need not provide information in accordance with this Regulation if information relates to mediation in the insurance of large risks.

Information provided by insurance intermediaries to comply with certain conditions

20.     (1)       An insurance intermediary shall ensure that all information provided to a customer in accordance with Regulation 19 is communicated to the customer--

(a)    on paper or in some other durable medium that is accessible to the customer, and

(b)    in a clear and accurate manner, comprehensible to the customer;

(c)    in a language agreed by the parties.

(2)       Despite paragraph (1)(a), the intermediary shall provide orally the information required by Regulation 19--

(a)    whenever the customer asks for the information, or

(b)    whenever immediate cover is needed.

In either event, the intermediary shall comply with paragraph (1) immediately after the relevant insurance contract is entered into.

(3)       If an insurance intermediary uses telephone selling to sell an insurance product to a customer, the intermediary shall ensure that the information given to the customer complies with the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004 (S.I. No.853/2004) or with the corresponding law of the relevant Member State concerned. In that case, the intermediary shall comply with paragraph (1) immediately after the relevant insurance contract is entered into.

Power of Bank to give certain directions to insurance intermediaries and reinsurance intermediaries that are companies or partnerships

21.     (1)       This Regulation applies only to an insurance intermediary or a reinsurance intermediary that is a company or a partnership.

(2)       An insurance intermediary or reinsurance intermediary to which this Regulation applies shall take all reasonably practicable steps to ensure that the persons who are concerned in the direction or management of the intermediary--

(a)    are suitably qualified, and

(b)    are of sufficiently good repute, and

(c)    have sufficient experience,

to be able to perform their obligations in that capacity.

(3)       The Bank may, by notice given in writing, direct an insurance intermediary or reinsurance intermediary to which this Regulation applies to provide it with such information relating to the intermediary, or the insurance mediation business carried on by the intermediary, as is specified in the notice, including information concerning the qualifications, reputation and experience of the persons who are concerned in the direction or management of the intermediary.

(4)       If the Bank is satisfied on reasonable grounds that a person who is concerned in the direction or management of an insurance intermediary or reinsurance intermediary to which this Regulation applies--

(a)    is not suitably qualified, or

(b)    is not of sufficiently good repute, or

(d)    does not have sufficient experience,

to be concerned in the direction or management of such an insurance intermediary or reinsurance intermediary, it may, by notice given in writing, direct the intermediary to take such action (including terminating the person’s appointment with the intermediary) as is specified in the notice.

(5)       An insurance intermediary or reinsurance intermediary to which this Regulation applies shall not appoint a person to a position by virtue of which the person will be concerned in the direction or management of the intermediary unless the Bank has previously been notified of the proposal to make the appointment. An appointment made in contravention of this paragraph is void.

(6)       An insurance intermediary or reinsurance intermediary to which this Regulations applies shall provide the Bank with such information as it requires concerning the qualifications, reputation and experience of a person referred to in paragraph (5).

(7)       An insurance intermediary or reinsurance intermediary to which a direction has been notified under this Regulation shall comply with the direction within the period specified in the notice.

(8)       The Bank is not liable in damages for any loss of office arising directly or indirectly because the Bank has given a direction under paragraph (4).

(9)       The Bank may, by further notice in writing, vary or revoke a direction notified to an insurance intermediary or reinsurance intermediary under this Regulation.

(10)      A direction, and a variation or revocation of the direction, notified under this Regulation take effect from the date of the notice or, if a later date is specified in the notice, from that later date.

Power of Bank to give certain directions to insurance intermediaries and reinsurance intermediaries who carry on insurance mediation business alone

22.     (1)       This Regulation applies only to an insurance intermediary or reinsurance intermediary who is a natural person and who carries on an insurance mediation business alone.

(2)       The Bank may, by notice given in writing, direct an insurance intermediary or reinsurance intermediary to whom this Regulation applies to provide it with such information concerning the intermediary or the insurance mediation business carried on by the intermediary as is specified in the notice.

(3)       An insurance intermediary or reinsurance intermediary to whom this Regulation applies shall not appoint a person to a position by virtue of which the person will be concerned in direction or management of the insurance mediation business carried on by the intermediary unless the Bank has previously been notified of the proposal to make the appointment. An appointment made in contravention of this paragraph is void.

(4)       An insurance intermediary or reinsurance intermediary to whom this Regulation applies shall provide the Bank with such information as it requires concerning the qualifications, reputation and experience of a person referred to in paragraph (3).

(5)       An insurance intermediary or reinsurance intermediary to whom a direction has been notified under this Regulation shall comply with the direction within the period specified in the notice.

(6)       The Bank may, by further notice in writing, vary or revoke a direction notified to an insurance intermediary or reinsurance intermediary under this Regulation.

(7)       A direction, and a variation or revocation of the direction, notified under this Regulation take effect from the date of the notice or, if a later date is specified in the notice, from that later date.

Insurance intermediaries and reinsurance intermediaries to lodge periodic returns with the Bank if required

23.     An insurance intermediary or reinsurance intermediary shall, if required to do so by the Bank, lodge with the Bank within such periods or before such dates as the Bank specifies, returns concerning the insurance or reinsurance mediation business carried on by the intermediary.

Part 4

FUNCTIONS AND POWERS OF THE BANK UNDER THESE REGULATIONS

Particular responsibilities of the Bank under these Regulations

24.     (1)       The Bank shall regularly review the activities of each registered insurance intermediary, and each reinsurance intermediary, to ensure that, as far as practicable, the intermediary is complying with the requirements imposed by or under Part 3.

(2)       The Bank may take such additional administrative steps as it considers are needed to reinforce the requirements imposed by or under Part 3.

Bank to establish and maintain Insurance Mediation Register

25.     (1)       The Bank shall establish a register called the Insurance Mediation Register.

(2)       The Bank may subdivide the Register into 2 or more registers if it thinks fit to do so.

(3)       The Register must--

(a)    be compiled electronically and be available in a form that is readily accessible to the public, and

(b)    contain all relevant information relating to registered insurance intermediaries and reinsurance intermediaries, including, in the case of those intermediaries that are companies or partnerships, the names of all persons who are concerned in the direction or management of those intermediaries.

(4)       The Bank shall ensure that the Register --

(a)    specifies the Member States in which each registered insurance intermediary and each registered reinsurance intermediary undertakes insurance mediation, and

(b)    provides details identifying the competent authorities of those Member States.

(5)       Members of the public are entitled, without charge, to inspect the Register the Register during the ordinary business hours of the Bank. However, the Bank may impose a reasonable charge for providing a copy of the Register or of any entry in it.

(6)       The Bank shall ensure that the Register is constantly updated.

Insurance and reinsurance undertakings to collaborate with Bank in certain circumstances

26.     An insurance undertaking or reinsurance undertaking shall, if required by the Bank to do so, take all appropriate steps to facilitate the registration of all insurance intermediaries and reinsurance intermediaries with which the undertaking has an association.

Exchange of information between competent authorities of Member States

27.     (1)       The Bank may exchange with the competent authorities of other Member States any relevant information relating to insurance intermediaries or reinsurance intermediaries registered in the State or in any of the other .Member States.

(2)       Without limiting paragraph (1), the Bank shall notify the competent authorities of other Member States concerned of particulars of--

(a)    any penalty or other sanction that has been imposed on an insurance or reinsurance intermediary under Part 5, or

(b) any sanction that has been imposed on the intermediary by the Bank in accordance with Part IIIB of the Central Bank Act 1942 ,

but only if notification of those particulars is likely to lead to cancellation of the intermediary’s registration in those other States.

Part 5

ENFORCEMENT OF THESE REGULATIONS

Appointment of authorised officers

28.     (1)       The Bank may in writing appoint as authorised officers such and so many persons as it considers necessary for the enforcement of these Regulations.

(2)       The Bank shall ensure that every person whom it appoints to be an authorised officer is provided with a certificate of appointment.

(3)       If a person in relation to whom an authorised officer is seeking to exercise a power conferred by these Regulations requests the officer to produce the officer’s certificate of appointment for the person’s inspection, the officer may exercise the power only after complying with the person’s request.

(4)       The appointment of an authorised officer under this Regulation ends when the appointing authority revokes the appointment, or, if the appointment is for a fixed period, when the period ends.

(4)       An authorised officer may exercise a power conferred by these Regulations in conjunction with the exercise of any power conferred on the officer by or under any enactment or by or under any other statutory instrument.

Powers of authorised officers

29.     (1)       An authorised officer may, for the purpose of obtaining any information that the Bank or a competent authority of any other Member State may require for the purposes of these Regulations or of a law of another Member State that corresponds to these Regulations, enter at all reasonable times premises at which the officer reasonably believes that--

(a)    a person is carrying on an insurance mediation or reinsurance mediation business, or

(b)    records relating to such a business are being kept.

(2)       An authorised officer who enters premises in accordance with paragraph (1) may do all or any of the following:

(a)    search and inspect the premises;

(b)    examine any record or thing found on the premises that the officer reasonably believes is kept or used in connection with the insurance mediation or reinsurance mediation business concerned;

(c)    require any person who carries on, is concerned in the direction or management of, the business, or any employee of the person who carries on the business--

(i)       to produce to the officer any record or thing in the possession or under the control of the person or employee that the officer reasonably believes is kept or used in connection with the business, and

(ii)  if any such record is not in a legible form, to reproduce the record in a permanent legible form or to give to the officer such information as the officer reasonably requires with respect to any information contained in the record;

(d)    carry out or have carried out such examinations, tests, inspections and checks of any record or thing examined or produced on accordance with this paragraph (including in the case of information that is not in legible form a copy of the information in permanent legible form) or any other data found there as the officer considers reasonably necessary;

(e)    make a copy of any record so examined or produced (including, in the case of information in a non-legible form, a copy of the information in a permanent legible form);

(f)     remove and retain, for further examination and use for such period as may be reasonable, any record so examined or produced;

(g)     require any person carrying on or concerned in the direction or management of, or employed in connection with, the business to prepare a report on any specified aspects of the business or to explain entries in any record so examined or produced;

(h)    require any person whom the officer reasonably believes to be in charge of, or to have access to, any data equipment or associated apparatus kept on the premises, to give to the officer all reasonable assistance in relation to the operation of the equipment or apparatus or gaining access to the data stored within it;

(i)    secure the premises or any part of the premises for later inspection.

(3)       An authorised officer may also--

(a)      summon, at any reasonable time, any person who carries on or is concerned in the direction or management of, or is employed in connection with, an insurance mediation or reinsurance mediation business--

(i)       to give to the officer any information, or

(ii)       to produce to the officer any record or thing,

in the possession or under the control of the person that the officer reasonably believes relates to the business, or

(b)    require a person whom the officer believes to be in possession of information, or to have or have access to a record or thing, that that the officer reasonably believes relates to the business to give or produce that information, record or thing to the officer, or

(c)    communicate with a client of an insurance intermediary or reinsurance intermediary for the purpose of confirming the supply or otherwise of the service to the client.

(4)       If a person who is required to produce a record or thing under this Regulation claims a lien over the record or thing, its production in accordance with the requirement does not affect the lien.

(5)       If a person refuses or fails to comply with a requirement made by an authorised officer under this Regulation, the officer may certify the refusal to the High Court, in which case that Court may inquire into the matter. After hearing any evidence adduced or representation made by or on behalf of the officer or person with respect to the matter, make such order as it thinks fit, including a direction to the person to comply with the requirement.

(6)       When exercising a power conferred by these Regulations, an authorised officer may, if the officer considers it appropriate or necessary to do so, be accompanied by other authorised officers, or by one or more members of the Garda Siochana.

(7)       A requirement under this Regulation may be made of an insurance intermediary or reinsurance intermediary registered in another Member State, or a person concerned in the direction or management of the intermediary.

(8)       The obligation to give information or produce a record or other thing under this Regulation extends to an examiner, liquidator, receiver or official assignee of an insurance intermediary or reinsurance intermediary or to any person who was formerly a person concerned in the direction or management of the intermediary.

Warrant required in order to enter private dwelling

30.     (1)       An authorised officer shall not, without the consent of the occupier, enter a private dwelling unless the officer is in possession of a warrant obtained from the District Court under this Regulation.

(2)       If--

(a)    an occupier of a private dwelling refuses to consent to the entry of an authorised officer for the purpose of exercising a power conferred on authorised officers by these Regulations, or

(b) an authorised officer reasonably believes that a request for consent to enter such a dwelling for that purpose is likely to be refused,

an application may be made under this Regulation to the District Court to authorise entry to the dwelling.

(3)       If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that information required by that or another authorised officer under these Regulations is being kept in a private dwelling, the judge may issue a warrant authorising that or another authorised officer, at any time or times within 1 month after the date of issue of the warrant--

(a)    to enter the dwelling, and

(b)    to exercise the powers conferred on authorised officers by these Regulations or such of those powers as are specified in the warrant.

(4)       An authorised officer to whom a warrant has been issued under paragraph (3) may, if appropriate, be accompanied by other authorised officers, or by one or more members of the Garda Siochana, and may use such force as is necessary to gain entry to the dwelling specified in the warrant.

Offence to obstruct authorised officers and members of the Garda Siochana

31.     (1)       A person who--

(a)    without reasonable excuse, obstructs or interferes with an authorised officer in the exercise of the officer’s powers under these Regulations, or

(b)    gives to an authorised officer information that the person knows to be false or misleading, or

(c)    without reasonable excuse, does not comply with a reasonable request or requirement made by an authorised officer under this Part,

commits an offence.

(2)       A reference in paragraph (1) to an authorised officer includes a member of the Garda Siochana who is accompanying the officer in accordance with Regulation 29 or 30.

Offences under Part 3

32.     (1)       An insurance undertaking or reinsurance undertaking that, without reasonable excuse, fails to comply with Regulation 13 commits an offence.

(2)       An insurance intermediary or reinsurance intermediary that, without reasonable excuse, fails to comply with a requirement imposed on insurance intermediaries or reinsurance intermediaries by or under Regulation 14, 15, 16, 17, 18, 19 or 23 commits s an offence.

(3)       An insurance intermediary or reinsurance intermediary that--

(a)    contravenes Regulation 21 (5), or

(b)    fails to comply with Regulation 21(2), (6) or (7),

commits an offence.

(4)       An insurance intermediary or reinsurance intermediary who--

(a)    contravenes Regulation 22(3), or

(b)    fails to comply with Regulation 21(5)

commits an offence.

Offence to use the services of a person who is not registered or exempt from registration

33.     An insurance undertaking or reinsurance undertaking who, in the course of or in connection with undertaking insurance mediation, makes use of the services of a person who is not registered as an insurance intermediary or reinsurance intermediary commits an offence.

Offence to provide false or misleading information in purported compliance with direction or requirement under these Regulations

34.     A person who, knowing the information to be false or misleading, provides the Bank with information in purported compliance with a requirement imposed on the person in accordance with these Regulations commits an offence.

Offence to falsify or alter certificate of registration

35.     A person who--

(a)    falsifies a certificate of registration, or

(b)    without lawful authority, alters such a certificate,

commits an offence.

Liability of directors and managers for offences committed by insurance intermediaries or reinsurance intermediary

36.     (1)       If an insurance intermediary or reinsurance intermediary that is a body corporate commits an offence against these Regulations, each person who, at the time when the offence is found to have been committed, was concerned in the direction or management of the body commits a separate offence, unless the person establishes in the proceedings that--

(a)    the offence was committed by the entity without the person’s knowledge, or

(b)    although the person did have that knowledge, the person took all reasonably practicable steps to prevent the commission of the offence by the entity.

(2)       A person may be prosecuted and convicted of an offence under paragraph (1) even if the body corporate is not prosecuted or convicted.

Penalties for offences under these Regulations

37.     A person who is found guilty of an offence under these Regulations is liable on conviction--

(a)    if a natural person, to a fine not exceeding €3,000 or to imprisonment for a term of not more than 12 months, or to both, or

(b)    if not a natural person, to a fine not exceeding €5,000.

Prosecution of offences under these Regulations

38.     (1)       An offence alleged to have been committed under these Regulations is triable summarily.

(2)       A prosecution for an offence under these Regulations may be taken only by the Bank or by some other person who is authorised by law to prosecute offences.

(3)       Despite section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under these Regulations may be started at any time within 12 months after the date on which the offence is alleged to have been committed.

Power of the High Court to make enforcement orders

39.     (1)       The Bank may apply to the High Court in a summary manner for an order under paragraph (3) if of the opinion that a person specified in the application--

(a)    is contravening, or

(b)    has contravened, or

(c)    is not complying with,

a provision of these Regulations, or a requirement made under such a provision.

(2)       The person in respect of whom an application under paragraph (1) is made is respondent to the application and is entitled as such to appear before and be heard at the hearing of the application.

(3)       The High Court may, on the hearing of the application, make an order directing the respondent--

(a)    to cease to contravene, or

(b)    not to repeat the contravention of, or

(b)    to comply with,

the provision of these Regulations, or the requirement, to which the application relates, provided it is satisfied that the person is contravening or has contravened, or is not complying with, the provision or requirement.

(4)       Pending the hearing of the application made, the High Court may make such interim or interlocutory orders as it thinks fit.

(5)       If the High Court makes an order under paragraph (3), it may also make such ancillary orders as it thinks appropriate in the circumstances.

Part 6

MISCELLANEOUS PROVISIONS

Certain decisions of the Bank to be appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942

40.     The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act:

(a)    the refusal by the Bank of an application for registration as an insurance intermediary or reinsurance intermediary;

(b)    the cancellation of registration of an insurance intermediary or reinsurance intermediary in accordance with Regulation 11;

(c)    the imposition by the Bank of a requirement under Part 3 with respect to a particular insurance intermediary or reinsurance intermediary;

(d)    a direction notified to an insurance intermediary or reinsurance intermediary under Regulation 21 or 22.

Complaints

41.     (1)       Pending the appointment of a person to be Financial Services Ombudsman under Part VIIB of the Central Bank Act 1942 , a customer of an insurance or reinsurance intermediary, or any other interested party (including a consumers’ association), may lodge a complaint with the Bank about the conduct of an insurance or reinsurance intermediary.

(2)       The Bank shall investigate every claim made under paragraph (1) and report the results of the investigation to the complainant.

Retention of certain rights acquired before the commencement of these Regulations

42.     (1)       An insurance intermediary that, immediately before the coming into force of these Regulations, is authorised to undertake insurance mediation services under the 1995 Act is taken to have complied with the requirements of Part 3 when it has satisfied the requirements set out in Regulations 14(2), 16 and 17.

(2)       A holder of a licence issued under the Central Bank Act 1971 , or a building society authorised under the Building Societies Act 1989 , that, immediately before coming into force of these Regulations, is providing insurance mediation services or reinsurance mediation services is taken to have complied with the requirements of Part 3 when it has satisfied the requirements set out in Regulations 14(2), 16 and 17.