21991A0727(01)

21991A0727(01) 21991A0727(01) Agreement between the European Economic Community and the Swiss Confederation on direct insurance other than life assurance - Protocol No 1: Solvency margin - Protocol No 2: Scheme of operations - Protocol No 3: Relationship between the ECU and the Swiss franc - Protocol No 4: Agencies and branches of undertakings whose head office is situated outside the territories to which this Agreement applies - Exchanges of Letters - Joint Declaration - Final Act Official Journal L 205 , 27/07/1991 P. 0003 - 0027  Dates: of document:   20/06/1991 of effect:   01/01/1993; Entry into force See Art 44; OJ L 33/93 P. 16 of signature:   10/10/1989; Luxembourg end of validity:   99/99/9999 Authentic language: The official languages ; Spanish ; Danish ; German ; Greek ; English ; French ; Italian ; Dutch ; Portuguese Author: EUROPEAN ECONOMIC COMMUNITY ; Switzerland Subject matter: External relations ; Internal market ; Provisions under Article 235 EEC Directory code: 11401010 ; 06202010 EUROVOC descriptor: insurance ; Switzerland Legal basis: 157E057-P2................ Adoption 157E235................... Adoption Amended by: Adopted by.... 391D0370.......... DP20/6/91 Amended by.... 201D0776.......... Replacement PT A.4 ANN 2 from 18/07/2001 Amended by.... 201D0776.......... Completion ANN 3 from 18/07/2001 Amended by.... 201D0776.......... Replacement PT B.A ANN 3 from 18/07/2001 Amended by.... 201D0776.......... Replacement PROT 2 ART 2 from 18/07/2001 Amended by.... 201D0776.......... Amendment PROT 1 ART 1 from 18/07/2001 Subsequent related instruments: Amendment proposed by 500SC2156......... AGREEMENT between the European Economic Community and the Swiss Confederation on direct insurance other than life assurance CONTENTS of the Agreement between the European Economic Community and the Swiss Confederation on direct insurance other than life assurance 1. Principal agreement Preamble Section I: Basic provisions (Articles 1 to 6) Section II: Conditions governing admission (Articles 7 to 14) Section III: Conditions governing the pursuit of business (Articles 15 to 26) Section IV: Withdrawal of authorization (Articles 27 to 29) Section V: Collaboration between supervisory authorities (Articles 30 to 33) Section VI: General and final provisions (Articles 34 to 44) Signature 2. Annex N° 1: Classes of insurance subject to the Agreement 3. Annex N° 2: Kinds of insurance, operations and undertakings not subject to the Agreement 4. Annex N° 3: Listing of acceptable legal forms 5. Annex N° 4: Particular provisions for certain Member States of the Community 6. Annex N° 5: Methods of calculating the equalization reserve for the credit insurance class and conditions governing exemption from the obligation to set up such a reserve 7. Protocol N° 1: Solvency margin 8. Protocol N° 2: Scheme of operations 9. Protocol N° 3: Relationship between the ecu and the Swiss franc 10. Protocol N° 4: Agencies and branches of undertakings whose head office is situated outside the territories to which this Agreement applies 11. Exchange of Letters N° 1: Principle of non-discrimination 12. Exchange of Letters N° 2: Scope of authorization 13. Exchange of Letters N° 3: Authorized agent 14. Exchange of Letters N° 4: Assignment to the Swiss Securities Fund of immovable property directly owned by insurance undertakings 15. Exchange of Letters N° 5: Principles governing investment 16. Exchange of Letters N° 6: Swiss list of classes of insurance 17. Exchange of Letters N° 7: The capital of insurance undertakings 18. Exchange of Letters N° 8: Transitional arrangements for assistance 19. Exchange of Letters N° 9: Transitional arrangements for the large risks referred to in paragraph 2.1 of Protocol No 2 20. Joint Declaration by the Contracting Parties concerning the period between the date of signature and the date of entry into force of the Agreement 21. Final Act PREAMBLE THE EUROPEAN ECONOMIC COMMUNITY of the one part THE SWISS CONFEDERATION of the other part CONSIDERING the close relations which exist between Switzerland and the Community; DESIRING to avail themselves of the occasion offered by the establishment of a unified Community insurance market to consolidate existing economic relations between the two Parties in this field, and to promote, under fair conditions of competition, the harmonious development of these relations by ensuring protection for insured persons; RESOLVED to that end to remove obstacles to the taking-up and pursuit of the business of direct insurance, other than life assurance, on a reciprocal and non-discriminatory basis safeguarded by the necessary legal conditions in respect of supervision, and thus to introduce between themselves freedom of establishment in this field; EMPHASIZING that this in no way affects their power to legislate subject to limits set by public international law; ENDEAVOURING to do everything in their power to see that their domestic legal orders in this field evolve in a mutually compatible manner; OBSERVING that it is in the interest of their economies to develop and strengthen their relations in this way in a field which up to now has not been governed by contractual rules, and to contribute thus to the coordination of economic law between the two Parties; DECLARE themselves ready to consider in the light of any relevant factor, and particularly of the evolution of Community insurance law, the possibility of concluding other agreements in respect of private insurance; HAVE AGREED in pursuit of these aims to conclude the present Agreement and to this end have designated as their Plenipotentiaries: THE EUROPEAN ECONOMIC COMMUNITY: Mrs Edith CRESSON, Minister for European Affairs, President-in-Office of the Council of the European Communities; Sir Leon BRITTAN, Vice-President of the Commission of the European Communities; THE SWISS CONFEDERATION: Mr Jean Pascal DELAMURAZ, President of the Swiss Confederation, Head of the Federal Department of Public Economy; Mr Franz BLANKART, State Secretary, Director of the Federal Office for Foreign Economic Affairs; WHO, having exchanged their Full Powers, found in good and due form, have agreed as follows: SECTION I BASIC PROVISIONS Article 1 Object of the Agreement The object of the Agreement is to lay down, on a reciprocal basis, the conditions which are necessary and sufficient to enable agencies and branches of undertakings whose head office is situated in the territory of one of the Contracting Parties and which wish to become established in the territory of the other Contracting Party, or are established there, to take up or pursue the self-employed activity of direct insurance other than life assurance. Article 2 Scope The classes of insurance which are subject to this Agreement are set out in Annex 1. Article 3 Exceptions to the scope The kinds of insurance, operations and undertakings which are not subject to this Agreement are listed in Annex 2. Article 4 Application of domestic law The law in force in each Contracting Party shall apply: - to points which are not governed by this Agreement, and - to questions relating to points governed by this Agreement, in so far as such questions are not regulated by the Agreement. Article 5 Principle of non-discrimination The Contracting Parties undertake to apply the principle of non-discrimination when introducing and applying the provisions of this Agreement. Article 6 Supervisory authority For the purposes of this Agreement, the supervisory authority shall, in the case of the Community, be the competent authority of the Member State in whose territory the head office of the undertaking is situated or in whose territory an agency or branch takes up or pursues the business of direct insurance. SECTION II CONDITIONS GOVERNING ADMISSION Article 7 Compulsory authorization 7.1. Each Contracting Party shall make the taking-up of the business of direct insurance in its territory by an undertaking which establishes its head office there subject to authorization by the supervisory authority. 7.2. Each Contracting Party shall, furthermore, make the opening in its territory of an agency or branch of an undertaking whose head office is situated in the territory of the other Contracting Party subject to authorization by the supervisory authority. 7.3. In addition, it shall make the opening in its territory of an agency or branch of an undertaking whose head office is situated outside the territories to which this Agreement applies, as laid down in Article 43, subject to authorization by the supervisory authority. Article 8 Scope of authorization 8.1. An authorization shall be valid for the covering of risks situated in the entire territory in which the supervisory authority granting the authorization is competent unless, and in so far as the legislation applicable permits, the applicant seeks permission to carry on his business only in a part of that territory. 8.2. A risk is situated in the territory in which a supervisory authority is competent: - in the case of insurance relating either to buildings or to buildings and their contents, in so far as the contents are covered by the same insurance policy, where the property is situated in that territory; - in the case of insurance relating to vehicles of any type, where the vehicle is registered in that territory; - in the case of policies of a duration of four months or less covering travel or holiday risks, whatever the class concerned, where the policy-holder took out the policy in that territory; - in all cases not explicitly covered by the foregoing indents, where the policy-holder has his habitual residence in that territory or, if the policy-holder is a legal person, where the latter's establishment, to which the contract relates, is situated in that territory. 8.3. Authorization shall be granted in respect of a particular class of insurance. It shall cover the entire class, unless the applicant wishes to cover only part of the risks pertaining to such class, as classified under Part A of Annex 1. However: - it shall be open to the supervisory authority to grant authorization for any group of classes classified under Part B of Annex 1, provided that it attaches to such authorization the appropriate denomination specified therein; - authorization granted for one class or group of classes shall also be valid for the purpose of covering ancillary risks included in another class if the conditions specified under Part C of Annex 1 are fulfilled. Article 9 Legal form The legal forms which may be assumed by an undertaking whose head office is situated in the territory of a Contracting Party are listed in Annex 3. Article 10 Conditions of authorization 10.1. Each Contracting Party shall require that an undertaking whose head office is situated in the territory of the other Contracting Party and which seeks an authorization to open in its territory an agency or branch shall satisfy the following conditions: (a) it shall submit its statutes and a list of its directors and managers; (b) it shall produce a certificate issued by the supervisory authority of the Contracting Party in whose territory its head office is situated, attesting: - that the applicant undertaking is constituted in one of the legal forms listed in Annex 3, - that the applicant undertaking limits its business activities to the business of insurance and to operations directly arising therefrom to the exclusion of all other commercial business, - the classes of insurance which the undertaking is entitled to transact, - that it possesses the minimum guarantee fund referred to in paragraph 3.2 of Protocol N° 1 or, where appropriate, the minimum solvency margin calculated in accordance with paragraph 2.2 of that Protocol if the minimum solvency margin is higher than the minimum guarantee fund, - the risks which it actually covers, - the existence of the financial resources referred to in paragraph 1 (f) of Protocol No 2; (c) it shall submit a scheme of operations drawn up in accordance with Protocol N° 2, accompanied by the balance sheet and profit and loss account of the undertaking for each of the past three financial years. However, where an undertaking has existed for fewer than three financial years, it shall submit such documents only for the financial years that have closed, if: - it is a new undertaking created as a result of a merger between existing undertakings, or - it is a new undertaking created by one or more existing undertakings for the purpose of transacting a specific class of insurance, previously pursued by one of the undertakings in question; (d) it shall designate an authorized agent having his permanent residence and abode in the territory in which the supervisory authority of the Contracting Party in question is competent and possessing sufficient powers to bind the undertaking in relation to third parties and to represent it in relations with the authorities and courts of that Contracting Party. Where the legal provisions of a Contracting Party permit the authorized agent to have legal personality, it shall have its head office in the territory of that Contracting Party and in turn designate a natural person to represent it who satisfies the above conditions. 10.2. This Agreement shall not prevent the Contracting Parties from enforcing provisions requiring for all insurance undertakings, at the time of granting of the authorization, approval of the general and special policy conditions, scales of premiums and any other documents necessary for the normal exercise of supervision. However, with regard to the risks referred to in paragraph 2.1 of Protocol N° 2, the Contracting Parties shall not lay down provisions requiring the approval or systematic notification of general and special policy conditions, scales of premiums, or forms and other printed documents which the undertaking intends to use in its dealings with policy holders. They may require only non-systematic notification of these conditions and other documents, for the purpose of verifying compliance with laws, regulations and administrative provisions in respect of such risks, and this requirement may not constitute a prior condition for an undertaking to be able to carry on its activities. For the purposes of this Agreement, general and special policy conditions shall not include specific conditions intended to meet, in an individual case, the particular circumstances of the risk to be covered. This Agreement shall likewise not prevent the Contracting Parties from subjecting undertakings requesting authorization for class 18 in Part A of Annex 1 to checks on their direct or indirect resources in staff and equipment, including the qualification of their medical teams and the quality of the equipment, available to the undertakings to meet their commitments arising from this class of insurance. Article 11 Granting of authorization 11.1. Each Contracting Party undertakes to grant authorization provided the conditions laid down in Article 10 are met and further provided that the other provisions governing undertakings with their head offices in its territory are observed. 11.2. The Contracting Parties shall not make authorization subject to the lodging of a deposit or the provision of security. 11.3. The Contracting Parties undertake furthermore that no application for an authorization shall be examined in the light of the economic requirements of the market. 11.4. The designated authorized agent may be challenged by the supervisory authority only on grounds relating to his good repute or technical qualifications. Article 12 Extension of the scope of an authorization 12.1. Each Contracting Party shall make any extension of the business for which an initial authorization was granted pursuant to Articles 7 and 8 subject to a new authorization. 12.2. Each Contracting Party shall require that, for the purpose of extending the business of an agency or branch either to other classes or in the circumstances referred to in paragraph 8.1, the applicant for the authorization shall submit a scheme of operations in accordance with Protocol N° 2 and produce the certificate referred to in paragraph 10.1 (b). Article 13 Authorization procedure 13.1. Authorization shall be sought from the supervisory authority by the undertaking whose head office is situated in the territory of the other Contracting Party. 13.2. The scheme of operations drawn up in accordance with Protocol N° 2, together with the observations of the supervisory authority responsible for granting authorization, shall be forwarded by the latter to the supervisory authority of the Contracting Party in whose territory the head office is situated. The latter shall make known its opinion to the former within three months following receipt of the documents. If no opinion has been received upon the expiry of that period, it shall be deemed to be favourable. 13.3. The supervisory authority from whom authorization has been sought shall forward to the applicant undertaking its decision on the application not later than six months following receipt of the application for authorization. Article 14 Refusal of authorization 14.1. Any decision to refuse an authorization shall be accompanied by the grounds on which it is based and shall be notified to the undertaking in question. 14.2. Each Contracting Party shall make provision for a right of recourse to the courts in the event of any refusal of authorization. Provision shall also be made for such right in regard to cases where the supervisory authority has not given a decision on an application for authorization upon the expiry of a period of six months from the date of its receipt. SECTION III CONDITIONS GOVERNING THE PURSUIT OF BUSINESS Article 15 Choice of assets The Contracting Parties shall not prescribe any rules as to the choice of assets in excess of those representing the technical reserves referred to in Articles 19 to 23. Subject to the provisions of paragraph 18.2, Articles 20, 21 and 23 and paragraphs 29.2 and 29.3, the Contracting Parties shall not restrict the free disposal of movable or immovable property forming part of the assets of undertakings. Article 16 Establishment of solvency margin 16.1. Each Contracting Party shall require every undertaking whose head office is situated in its territory to establish an adequate solvency margin in respect of its entire business. 16.2. The definition of the solvency margin and the manner in which it is to be calculated and represented, and the minimum guarantee fund fixed, are set out in Protocol No 1. Article 17 Verification of the state of solvency 17.1. The supervisory authority of the Contracting Party in whose territory the head office of the undertaking is situated shall verify the state of solvency of the undertaking with respect to its entire business. 17.2. The supervisory authority of the other Contracting Party shall, where it has granted the said undertaking authorization to open an agency or branch, provide the abovementioned authority with all the information necessary to enable such verification to be carried out. 17.3. Each Contracting Party shall require undertakings whose head office is situated in its territory to produce an annual account, covering all their transactions, of their situation and solvency, and, as regards cover for risks listed under class 18 in Part A of Annex N° 1, of the other resources available to them for meeting their liabilities, where its laws provide for supervision of such resources. Article 18 Restoration of financial situation 18.1. For the purpose of restoring the financial situation of an undertaking whose solvency margin has fallen below the minimum required under paragraph 2.2 of Protocol No 1, the supervisory authority of the Contracting Party in whose territory the head office is situated shall require a plan for the restoration of a sound financial situation to be submitted for its approval. 18.2. If the solvency margin falls below the guarantee fund defined in Article 3 of Protocol N° 1, the supervisory authority of the Contracting Party in whose territory the head office of the undertaking is situated shall require the latter to submit a short-term financing plan for its approval. It may also restrict or prohibit the free disposal of the assets of the undertaking. It shall inform the supervisory authority of the Contracting Party in whose territory authorized agencies or branches of the undertaking are situated of any such measures. If they are requested by the former authority, the latter authority shall take the same measures. The supervisory authority may, furthermore, take all measures necessary to safeguard the interests of insured persons should the situation envisaged in this paragraph arise. Article 19 Establishment of technical reserves 19.1. Each Contracting Party in whose territory an undertaking carries on business shall require that undertaking to establish sufficient technical reserves. 19.2. The amount of such reserves shall be determined in accordance with the rules laid down in each Contracting Party, or, in the absence of such rules, in accordance with the established practices in each Contracting Party. 19.3. Each Contracting Party shall furthermore require undertakings established in its territory and underwriting risks listed under class 14 in Part A of Annex 1 (credit insurance) to set up an equalization reserve for the purpose of offsetting any technical deficit or above average claims ratio arising in that class for a financial year. The methods of calculating the equalization reserve and the conditions governing exemption from the obligation to make such a reserve are set out in Annex No 5. The equalization reserve must be calculated, under the rules laid down by each Contracting Party, in accordance with one of the four methods set out in Annex 5, which shall be regarded as being equivalent. Up to the amount calculated in accordance with those methods, the equalization reserve shall be disregarded for purposes of calculating the solvency margin. Undertakings shall make available to the supervisory authority accounts showing both the technical results and the technical reserves relating to this business. Article 20 Matching assets and localization of assets constituting technical reserves 20.1. Technical reserves shall be represented by equivalent and matching assets localized in the territory in which the supervisory authority of each Contracting Party is respectively competent. Each Contracting Party may, however, permit relaxations of the rules on matching assets and the localization of assets. 20.2. 'Matching assets` means the representation of underwriting liabilities expressed in a particular currency by assets expressed or realizable in the same currency. 20.3. 'Localization of assets` means the existence of movable or immovable assets in the territory in which the supervisory authority of the Contracting Party concerned is competent, but shall not be construed as involving a requirement that movable property be deposited or that immovable property be made subject to restrictive measures such as the registration of a mortgage. Assets represented by claims against debtors shall be regarded as localized in the territory in which the supervisory authority of the Contracting Party where they are to be realized is competent. Subject to the above, localization shall be governed by the respective rules in force in the Contracting Parties. Article 21 Nature of technical reserves 21.1. The rules in force in each Contracting Party in whose territory an undertaking pursues its business shall determine the nature of the assets and, where appropriate, the extent to which they may be used for the purpose of representing the technical reserves, and shall also determine the rules for valuing such assets. 21.2. The expression 'nature of the assets` refers to the various categories of movable and immovable assets and their specific characteristics, such as those relating to the debtor in the case of a claim forming part of the representation of the technical reserves. 21.3. If a Contracting Party allows any technical reserves to be represented by claims against re-insurers, it shall fix the percentage so allowed or shall make provision for it to be fixed. In such case, notwithstanding the provisions of paragraph 20.1, it may not require the assets representing such claims to be localized. Article 22 Balance sheet The supervisory authority of the Contracting Party in whose territory the head office of an undertaking is situated shall verify that the undertaking's balance sheet shows in respect of the technical reserves assets equivalent to the underwriting liabilities assumed in all the countries in which it carries on business. Article 23 Non-compliance with the requirements relating to technical reserves If an agency or branch does not comply with the provisions laid down in Articles 19 to 21, the supervisory authority of the Contracting Party in whose territory it carries on business may prohibit the free disposal of assets localized in its territory after having informed the supervisory authority of the Contracting Party in whose territory the head office is situated that it intends to take such action. The supervisory authority of the Contracting Party in whose territory such agency or branch carries on business may, furthermore, take any measure necessary to safeguard the interests of insured persons. Article 24 Transfer of portfolio 24.1. Under the conditions laid down by the legal provisions in force in the Contracting Party in question, the supervisory authority shall authorize undertakings which are established in the territory for which it is responsible to transfer all or part of their portfolios of contracts to an accepting office established in the same territory as the transferring undertaking, if the supervisory authority of the Contracting Party in whose territory the head office of the accepting office is situated certifies that the latter possesses the necessary margin of solvency after taking the transfer into account. 24.2. A transfer authorized in accordance with paragraph 24.1 shall be published in the territory in which the supervisory authority of the Contracting Party in which the transferring undertaking and the accepting office are established is competent, under the conditions laid down by the legal provisions in force in each Contracting Party in question. Such transfer shall be automatically valid against the policy-holders, the insured persons and any other person having rights and obligations arising out of the contracts transferred. However, this paragraph shall not preclude the existence in each of the Contracting Parties of provisions providing policy-holders with the option of cancelling the contract within a given period after the transfer. Article 25 Approval of conditions and scales of premiums 25.1. This Agreement shall not prevent the Contracting Parties from enforcing provisions requiring of all undertakings and in respect of all classes of insurance, during the pursuit of business, approval of the general and special policy conditions, scales of premiums and any other documents necessary for the normal exercise of supervision. However, with regard to the risks referred to in paragraph 2.1 of Protocol N° 2, the Contracting Parties shall not lay down provisions requiring the approval or systematic notification of general and special policy conditions, scales of premiums, forms and other printed documents which the undertaking intends to use in its dealings with policy-holders. They may require only non-systematic notification of these conditions and other documents, for the purpose of verifying compliance with laws, regulations and administrative provisions in respect of such risks. With regard to the same risks, the Contracting Parties may not retain or introduce prior notification or approval of proposed increases in scales of premiums except as part of a general price control system. 25.2. This Agreement shall likewise not prevent the Contracting Parties from subjecting undertakings which have obtained authorization for class 18 in Part A of Annex 1 to checks on their direct or indirect resources in staff and equipment, including the qualification of their medical teams and the quality of the equipment, available to the undertakings to meet their commitments arising from this class of insurance. 25.3. For the purposes of this Agreement, general and special policy conditions shall not include specific conditions intended to meet, in an individual case, the particular circumstances of the risk to be covered. Article 26 Documentation The Contracting Parties shall require undertakings carrying on business in their territory to produce the documents, including statistical documents, necessary for the exercise of supervision and, as regards cover for risks listed under class 18 in Part A of Annex 1, to indicate the resources available to them for meeting their liabilities, where their laws provide for supervision of such resources. SECTION IV WITHDRAWAL OF AUTHORIZATION Article 27 Withdrawal conditions The supervisory authority of a Contracting Party may withdraw from an undertaking whose head office is situated in the territory of the other Contracting Party the authorization which it granted to open an agency or branch, where such agency or branch: (a) no longer fulfils the conditions for admission, or (b) fails seriously to fulfil its obligations under the rules applicable to it, in particular with respect to the establishment of technical reserves. Article 28 Withdrawal procedure 28.1. Before withdrawing authorization, the supervisory authority shall consult the supervisory authority of the Contracting Party in whose territory the head office of the undertaking is situated. If the former authority deems it necessary to suspend the business of the agency or branch referred to in Article 27 before consultation is concluded, it shall immediately advise the latter authority thereof. 28.2. Any decision to withdraw an authorization or to order the suspension of business shall state the reasons on which it is based and shall be notified to the undertaking in question. 28.3. Each Contracting Party shall make provision for a right of recourse to the courts against such a decision. Article 29 Withdrawal of the authorization granted to the head office 29.1. Where the supervisory authority of a Contracting Party in whose territory the head office is situated withdraws the authorization which it has granted to the undertaking, it shall notify such action to the supervisory authority of the other Contracting Party if the latter has granted the undertaking authorization to open an agency or branch. The latter authority shall also withdraw its authorization. 29.2. In the case referred to in paragraph 1, the supervisory authority of the Contracting Party in whose territory the head office is situated shall, in conjunction with the supervisory authority of the other Contracting Party, take all measures necessary to safeguard the interests of insured persons and shall, in particular, restrict the free disposal of the assets of the undertaking, if this measure has not already been taken, pursuant to paragraph 18.2 and Article 23. 29.3. Paragraph 29.1 and, where relevant, 29.2 shall likewise apply where the undertaking surrenders of its own accord the authorization granted to it. SECTION V COLLABORATION BETWEEN SUPERVISORY AUTHORITIES Article 30 Conditions of collaboration The Contracting Parties shall take all necessary measures to enable their supervisory authorities to collaborate closely in the implementation of this Agreement. Article 31 Objectives of collaboration 31.1. The supervisory authorities shall collaborate in verifying the provisions by undertakings of financial guarantees as defined in Articles 16 and 19 to 21 and, in particular, in applying the measures provided for in Articles 18 and 23. 31.2. Where the undertakings in question are authorized to cover the risks listed under class 18 in Part A of Annex No 1, the supervisory authorities shall also collaborate in supervising the resources available to those undertakings for carrying out the assistance operations they have undertaken to perform, where their laws provide for supervision of such resources. Article 32 Exchange of information The supervisory authorities shall furnish each other with all documents and information necessary for exercising supervision. Article 33 Requirements of secrecy 33.1. Articles 30 to 32 shall under no circumstances be interpreted as requiring any supervisory authority to furnish information which would disclose commercial secrets of an undertaking or information the communication of which would be contrary to public policy. 33.2. Nevertheless, the secrecy rules to which the supervisory authorities are subject shall not hinder collaboration between those authorities and the mutual assistance provided for by this Agreement. 33.3. The information exchanged shall be used by such authorities solely for the purpose of carrying out their supervisory duties. SECTION VI GENERAL AND FINAL PROVISIONS Article 34 Particular provisions and undertakings of third countries 34.1. Particular provisions applicable to certain Member States of the Community are set out in Annex 4. 34.2. The provisions applicable to agencies and branches of undertakings whose head office is situated outside the territories to which this Agreement applies pursuant to Article 43 thereof are set out in Protocol No 4. Article 35 Integral parts of the Agreement The Annexes, Protocols and Exchanges of Letters annexed to this Agreement shall form an integral part thereof. Article 36 Failure to fulfil obligations 36.1. The Contracting Parties shall refrain from taking any measures which might jeopardize the attainment of the objectives of the Agreement. 36.2. They shall take all general or special measures necessary to ensure fulfilment of the obligations arising from this Agreement. If either Contracting Party considers that the other Contracting Party has failed to fulfil an obligation arising from this Agreement, the procedure referred to in paragraph 37.2 shall apply. Article 37 Joint Committee 37.1. A Joint Committee, composed of representatives of Switzerland and representatives of the Community, is hereby established, which shall be responsible for the administration of the Agreement and its proper implementation and for taking decisions in the circumstances provided for therein. Its decisions shall be taken by mutual agreement. 37.2. For the purpose of the proper implementation of the Agreement, the contracting Parties shall exchange information and, at the request of either Party, shall hold consultations within the Joint Committee. The exercise of supervision, referred to in Section V, shall not come within its powers. 37.3. The Joint Committee shall adopt its own rules of procedure. 37.4. The Joint Committee shall be chaired in turn by each of the Contracting Parties in accordance with detailed arrangements to be laid down in its rules of procedure. At the request of either Contracting Party, in accordance with conditions to be laid down in its rules of procedure, it shall be convened by its Chairman whenever special circumstances so require. The Joint Committee may decide to set up any working party needed to assist it in carrying out its tasks. Article 38 Settlement of disputes 38.1. If a dispute arises between the Contracting Parties concerning the operation of this Agreement and in particular its interpretation or implementation and such dispute cannot be resolved either through collaboration between the supervisory authorities referred to in Section V or by the Joint Committee referred to in Article 37, the Contracting Parties shall consult each other through diplomatic channels. 38.2. If it has not been possible to resolve the dispute by means of the procedure provided for in paragraph 38.1, it shall be referred, at the request of either of the Parties, to an arbitration tribunal consisting of three members. Reference may be made to this tribunal at the earliest after a period of two years following the first reference to the Joint Committee referred to in Article 37, unless the Parties agree jointly to refer their dispute to the said tribunal before the end of that period. Each Party shall appoint an arbitrator. The two arbitrators appointed shall appoint an umpire who shall be a national neither of Switzerland nor of a Member State of the Community. 38.3. Where one of the Contracting Parties does not appoint its arbitrator and has not complied with the request made by the other Party to make such appointment within two months, the arbitrator shall be appointed, at the request of that other Party, by the President of the International Court of Justice. 38.4. Where after a period of two months following their appointment the two arbitrators are unable to agree on the choice of an umpire, the latter shall be appointed at the request of one of the Parties by the President of the International Court of Justice. 38.5. Where, in the case provided for in paragraphs 38.3 and 38.4, the President of the International Court of Justice is unable to act, or is a national of Switzerland or of a Member State of the Community, the appointments shall be made by the Vice-President. If the latter is unable to act or is a national of Switzerland or of a Member State of the Community, the appointments shall be made by the oldest member of the Court who is not a national either of Switzerland or of a Member State of the Community. 38.6. Save as otherwise provided by the Contracting Parties, the tribunal shall lay down its own rules of procedure. It shall take its decision by majority vote. 38.7. The decisions of the tribunal shall be binding on the Contracting Parties. Article 39 Evolution of the domestic legislation of the Contracting Parties 39.1. The Agreement shall be without prejudice to the right of each Contracting Party, subject to compliance with the principle of non-discrimination and the provisions of this Article, unilaterally to amend its domestic legislation on a point regulated by this Agreement. 39.2. As soon as a Contracting Party has initiated the process for adopting a draft amendment of its domestic legislation concerning the conditions for taking up and pursuing, by means of establishment, the activity of direct insurance other than life assurance, it shall inform the other Contracting Party via the Joint Committee referred to in Article 37. The Joint Committee shall hold an exchange of views on the implications of such an amendment for the proper functioning of the Agreement. 39.3. As soon as the amended legislation has been adopted, and eight days after adoption at the latest, the Contracting Party concerned shall notify the text of the new provisions to the other Contracting Party. 39.4. In order to guarantee legal certainty, a period of at least 12 months from the date of adoption of the amended legislation must be laid down by the Contracting Party concerned for the implementation of any amendment of legislation which deviates from the provisions of the Agreement. 39.5. Any amendment of legislation which has been the subject of the procedures referred to in paragraphs 39.2 and 39.3 and which, in the opinion of either Contracting Party, deviates from the provisions of the Agreement, shall be referred to the Joint Committee. The Joint Committee shall meet at the latest six weeks after the notification laid down in paragraph 39.3. 39.6. The Joint Committee shall: - either adopt a decision revising the provisions of the Agreement so as to integrate therein, if necessary on a basis of reciprocity, the amendments made to the legislation in question, - or, as long as the insured person is guaranteed equivalent protection to that provided for under the Agreement, adopt a decision to the effect that the amendments to the legislation in question shall be regarded as in accordance with the Agreement, - or decide any other measure to safeguard the proper functioning of the Agreement. 39.7. The decisions of the Joint Committee shall be published in the Official Compendium of Federal Laws (Recueil Officiel des lois fłdłrales) and in the Official Journal of the European Communities. Each decision shall state the date of its implementation in the two Contracting Parties and any other information likely to concern economic operators. The decisions shall be submitted as necessary for ratification or approval by the Contracting Parties in accordance with their own procedures. The Contracting Parties shall notify each other of the completion of this formality. If upon the expiry of the period provided for in paragraph 39.4 such notification has not taken place, the decisions of the Joint Committee shall be implemented provisionally pending their ratification or approval by the Contracting Parties. If either Contracting Party notifies the non-ratification or non-approval of a decision of the Joint Committee, paragraph 39.8 shall apply mutatis mutandis from the time of such notification. 39.8. If the Joint Committee does not reach agreement on the decisions to be taken within six months of the date of referral pursuant to paragraph 39.5, the Agreement shall be regarded as ended on the day the legislation in question is implemented, pursuant to paragraph 39.4; in that event the provisions of Article 38 are not applicable. The provisions of paragraph 42.2 shall apply mutatis mutandis. Article 40 Revision of the Agreement 40.1. If a Contracting Party wishes that this Agreement be revised, it shall request the other Contracting Party to open negotiations to that end. Such request shall be made through diplomatic channels. 40.2. Amendments to this Agreement shall enter into force in accordance with the procedure set out in Article 44. 40.3. Nevertheless, amendments to the Annexes, Protocols and Exchanges of Letters annexed to this Agreement shall be adopted by the Joint Committee referred to in Article 37, which shall determine the date of their entry into force. Article 41 Matters not covered by the Agreement 41.1. Where a Contracting Party considers that it would be useful in the interests of both Contracting Parties to develop the relations established by this Agreement by extending them to private insurance activities not covered thereby, it shall propose to the other Contracting Party that negotiations be opened to that end. 41.2. Agreements resulting from negotiations referred to in paragraph 41.1 shall be subject to ratification or approval by the Contracting Parties in accordance with their own procedures. Article 42 Denunciation 42.1. Either Contracting Party may denounce this Agreement at any time by notifying the other Contracting Party to that effect. The Agreement shall cease to be in force 12 months after the date of such notification. 42.2. In the event of denunciation, the Contracting Parties shall jointly agree on rules governing the situation of undertakings which have obtained authorization in accordance with paragraph 11.1. In the absence of agreement upon expiry of the period of 12 months referred to in paragraph 42.1, those undertakings shall be made subject to the rules applicable to those of third countries. Nevertheless, the Contracting Parties hereby undertake that the authorization obtained in accordance with paragraph 11.1 shall not be withdrawn in the light of the economic requirements of the market for a period of at least five years from the date on which this Agreement ceases to be in force. Article 43 Territorial scope This Agreement shall apply, on the one hand, to the territory of the Swiss Confederation and, on the other hand, to the territories in which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty. Article 44 Entry into force 44.1. This Agreement was negotiated in French and drawn up in duplicate in the Danish, Dutch, English, French, German, Italian, Portuguese and Spanish languages, each of these texts being equally authentic. 44.2. This Agreement shall be ratified or approved by the Contracting Parties in accordance with their own procedures. 44.3. This Agreement shall enter into force on the first day of the calendar year following the exchange of instruments of ratification or approval on condition that such exchange takes place not later than one month before that date. Nevertheless, the Contracting Parties may, on exchanging instruments of ratification or approval, jointly agree on another date for the entry into force of this Agreement; in that case, the date shall be published forthwith. En fe de lo cual, los plenipotenciarios abajo firmantes suscriben el presente Acuerdo. Til bekröftelse heraf har undertegnede befuldmögtigede underskrevet denne aftale. Zu Urkund dessen haben die unterzeichneten Bevollmōchtigten ihre Unterschriften unter dieses Abkommen gesetzt. ÅłĖ ĘčėĮųė÷ Įųż ńżųĮąęų, ˙ł įĘ˙óõóęńüüąż˙ł Ęū÷ęõž˙žėł˙ł ąųõėńż ĮłĖ įĘ˙óęńŠąĖ Į˙įĖ ėĮ÷ż Ęńę˙žėń ėįüŠųżčń. In witness whereof the undersigned Plenipotentiaries have signed this Agreement. En foi de quoi, les plłnipotentiaires soussignłs ont apposł leurs signatures au bas du prłsent accord. In fede di che, i plenipotenziari sottoscritti hanno apposto le loro firme in calce al presente accordo. Ten blijke waarvan de ondergetekende gevolmachtigden hun handtekening onder deze Overeenkomst hebben gesteld. Em fł do que, os plenipotencińrios abaixo assinados apuseram as suas assinaturas no final do presente acordo. Hecho en Luxemburgo, el diez de octubre de mil novecientos ochenta y nueve. Udfördiget i Luxembourg, den tiende oktober nitten hundrede og niogfirs. Geschehen zu Luxemburg am zehnten Oktober neunzehnhundertneunundachtzig. łÅółżõ ėĮ˙ Ė˙įžõüņ˙žęó˙, ėĮłĖ ōąśń ĻśĮųņęč˙į ščūłń õżżłńśŽėłń ˙óōŽżĮń õżżąń. Done at Luxembourg on the tenth day of October in the year one thousand nine hundred and eighty-nine. Fait š Luxembourg, le dix octobre mil neuf cent quatre-vingt-neuf. Fatto a Lussemburgo, addü dieci ottobre millenovecentottantanove. Gedaan te Luxemburg, de tiende oktober negentienhonderd negenentachtig. Feito no Luxemburgo, em dez de Outubro de mil novecentos e oitenta e nove. En nombre del Consejo de las Comunidades Europeas Põ vegne af Rõdet for De Europöiske Föllesskaber Im Namen des Rates der Europōischen Gemeinschaften Åž ˙żŽüńĮ˙Ė Į˙į Óįüņ˙įūč˙į Įųż ÅįęųĘńŪśžż Ź˙łż˙ĮČĮųż On behalf of the Council of the European Communities Au nom du Conseil des Communautłs europłennes A nome del Consiglio delle Comunitš europee Namens de Raad van de Europese Gemeenschappen Em nome do Conselho das Comunidades Europeias Por el Gobierno de la Confederaciėn Suiza For regeringen for Schweiz FŽr die Regierung der Schweizerischen Eidgenossenschaft Ćłń Į÷ż śįņąęż÷ė÷ Į÷Ė ÅūņõĮłśČĖ Óįż˙ü˙ėĘ˙żōčńĖ For the Government of the Swiss Confederation Pour le gouvernement de la Confłdłration suisse Per il governo della Confederazione svizzera Voor de Regering van de Zwitserse Bondsstaat Pelo Governo da Confedera÷óo Suż÷a ANNEX 1 CLASSES OF INSURANCE SUBJECT TO THE AGREEMENT A. Classification of risks according to classes of insurance 1. Accident (including industrial injury and occupational diseases) - fixed pecuniary benefits, - benefits in the nature of indemnity, - combinations of the two, - injury to passengers. 2. Sickness - fixed pecuniary benefits, - benefits in the nature of indemnity, - combinations of the two. 3. Land vehicles (other than railway rolling stock) All damage to or loss of: - land motor vehicles, - land vehicles other than motor vehicles. 4. Railway rolling stock All damage to or loss of railway rolling stock. 5. Aircraft All damage to or loss of aircraft. 6. Ships (sea, lake and river and canal vessels) All damage to or loss of: - river and canal vessels, - lake vessels, - sea vessels. 7. Goods in transit (including merchandise, baggage and all other goods) All damage to or loss of goods in transit or baggage, irrespective of the form of transport. 8. Fire and natural forces All damage to or loss of property (other than property included in classes 3, 4, 5, 6 and 7) due to: - fire, - explosion, - storm, - natural forces other than storm, - nuclear energy, - land subsidence. 9. Other damage to property All damage to or loss of property (other than property included in classes 3, 4, 5, 6 and 7) due to hail or frost, and any event such as theft, other than those mentioned under 8. 10. Motor vehicle liability All liability arising out of the use of motor vehicles operating on land (including carrier's liability). 11. Aircraft liability All liability arising out of the use of aircraft (including carrier's liability). 12. Liability for ships (sea, lake and river and canal vessels) All liability arising out of the use of ships, vessels or boats on the sea, lakes, rivers or canals (including carrier's liability). 13. General liability All liability other than those forms mentioned under Nos 10, 11 and 12. 14. Credit - insolvency (general), - export credit, - instalment credit, - mortgages, - agricultural credit. 15. Suretyship - suretyship (direct), - suretyship (indirect). 16. Miscellaneous financial loss - employment risks, - insufficiency of income (general), - bad weather, - loss of profits, - continuing general expenses, - unforeseen trading expenses, - loss of market value, - loss of rent or revenue, - indirect trading losses other than those mentioned above, - other financial loss (non-trading), - other forms of financial loss. 17. Legal expenses Legal expenses and costs of litigation. 18. Tourist assistance Assistance for persons who get into difficulties while travelling, while away from home or while away from their permanent residence. The risks included in a class may not be included in any other class except in the cases referred to in Part C. B. Description of authorizations granted simultaneously for more than one class of insurance Where the authorization simultaneously covers: (a) classes Nos 1 and 2, it shall be named 'Accident and Health Insurance`; (b) classes Nos 1 (fourth indent), 3, 7 and 10, it shall be named 'Motor Insurance`; (c) classes Nos 1 (fourth indent), 4, 6, 7 and 12, it shall be named 'Marine and Transport Insurance`; (d) classes Nos 1 (fourth indent), 5, 7 and 11, it shall be named 'Aviation Insurance`; (e) classes Nos 8 and 9, it shall be named 'Insurance against Fire and other Damage to Property`; (f) classes Nos 10, 11, 12 and 13, it shall be named 'Liability Insurance`; (g) classes Nos 14 and 15, it shall be named 'Credit and Suretyship Insurance`; (h) all classes, it shall have the name or names chosen by the Contracting Party in question, which shall notify the other Contracting Party of its choice(s). C. Ancillary risks An undertaking obtaining an authorization for a principal risk belonging to one class or a group of classes may also insure risks included in another class without an authorization being necessary for them if they: - are connected with the principal risk, - concern the object which is covered against the principal risk, and - are covered by the contract insuring the principal risk. However, the risks included in classes 14, 15 and 17 may not be regarded as risks ancillary to other classes. Nonetheless, the risk included in class 17 (legal expenses insurance) may be regarded as an ancillary risk of class 18 where the conditions laid down in the first subparagraph of Part C of this Annex are fulfilled, and where the main risk relates solely to the assistance provided for persons who fall into difficulties while travelling, while away from home or while away from their permanent residence. Legal expenses insurance may also be regarded as an ancillary risk under the conditions set out in the first subparagraph of Part C of this Annex where it concerns disputes or risks arising out of, or in connection with, the use of sea-going vessels. D. Assistance 1. The assistance activity shall be the assistance provided for persons who get into difficulties while travelling, while away from home or while away from their permanent residence. It shall consist in undertaking, against the prior payment of a premium, to make aid immediately available to the beneficiary under an assistance contract where that person is in difficulties following the occurrence of a chance event, in the cases and under the conditions set out in the contract. The aid may consist in the provision of benefits in cash or in kind. The provision of benefis in kind may also be effected by means of the staff and equipment of the person providing them. The assistance activity does not cover servicing, maintenance, after-sales service or the mere indication or provision of aid as an intermediary. 2. Either Contracting Party may, in its territory, make the provision of assistance to persons who get into difficulties in circumstances other than those referred to in 1 subject to the arrangements introduced by this Agreement. If a Contracting Party makes use of this possibility it shall, for the purposes of applying these arrangements, treat such activity as if it were listed under class 18 in Part A of this Annex, without prejudice to Part C thereof. This shall in no way affect the possibilities for classification laid down in this Annex for activities which clearly come under other classes. It shall not be possible to refuse authorization sought for an agency or branch by an undertaking whose head office is situated in the territory of the other Contracting Party solely on the grounds that the activity covered by this point is classified differently in the Contracting Party, in the territory of which the head office of the undertaking is situated. ANNEX 2 KINDS OF INSURANCE, OPERATIONS AND UNDERTAKINGS NOT SUBJECT TO THE AGREEMENT A. Kinds of insurance excluded This Agreement does not apply to: 1. life assurance, that is to say the class of insurance which comprises, in particular, assurance on survival to a stipulated age only, assurance on death only, assurance on survival to a stipulated age or on earlier death, life assurance with return of premiums, tontines, marriage assurance and birth assurance; 2. annuities; 3. supplementary insurance carried on by life assurance undertakings, that is to say, insurance against personal injury including incapacity for employment, insurance against death resulting from an accident, and insurance against disability resulting from an accident or sickness, where these various kinds of insurance are underwritten in addition to life assurance; 4. in Switzerland: insurance forming part of a statutory system of social security, except where such insurance is written by authorized undertakings; in the Community: insurance forming part of a statutory system of social security; 5. the type of insurance existing in Ireland and the United Kingdom known as 'permanent health insurance not subject to cancellation`. B. Operations excluded This Agreement does not apply to: 1. capital redemption operations, as defined by the law in each Contracting Party; 2. operations of provident and mutual benefit institutions whose benefits vary according to the resources available and in which the contributions of members are determined on a flat rate basis; 3. operations carried out by organizations not having legal personality with the purpose of providing mutual cover for their members without there being any payment of premiums or constitution of technical reserves; 4. export credit insurance operations for the account of or guaranteed by the State, or where the State is the insurer; 5. the assistance activity in which liability is limited to the following operations provided in the event of an accident or breakdown involving a road vehicle which normally occurs in the territory in which the supervisory authority of the Contracting Party in which the undertaking providing cover is established is competent: - an on-the-spot breakdown service for which the undertaking providing cover uses, in most circumstances, its own staff and equipment, - the conveyance of the vehicle to the nearest or the most appropriate location at which repairs may be carried out and the possible accompaniment, normally by the same means of assistance, of the driver and passengers to the nearest location from where they may continue their journey by other means, - if provided for by the provisions in force in the territory in which the supervisory authority of the Contracting Party in which the undertaking providing cover is established is competent, the conveyance of the vehicle, possibly accompanied by the driver and passengers, to their home, point of departure or original destination within the same territory, unless such operations are carried out by an undertaking subject to the Agreement. In the cases referred to in the first two indents, the condition that the accident or breakdown must have happened in the territory in which the supervisory authority of the Contracting Party, in which the undertaking providing cover is established, is competent: (a) shall not apply where the latter is a body of which the beneficiary is a member and the breakdown service or conveyance of the vehicle is provided simply on presentation of a membership card, without any additional premium being paid, by a similar body in the same or the other Contracting Party on the basis of a reciprocal agreement; (b) shall not preclude the provision of such assistance in Ireland and the United Kingdom by a single body operating in both States. In the circumstances referred to in the third indent, where the accident or the breakdown has occurred in the territory of Ireland or, in the case of the United Kingdom, in the territory of Northern Ireland, the vehicle, possibly accompanied by the driver and passengers, may be conveyed to their home, point of departure or original destination within either territory. Moreover, the Agreem …