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European Insurance and Occupational Pensions Authority

2218

Q&A

Question ID: 2218

Regulation Reference: (EU) No 2016/97 - Insurance Distribution Directive

Topic: Scope (Art. 1 IDD)

Article: 1(3)

Status: Final

Date of submission: 10 Nov 2020

Question

The distribution of insurance products is governed by IDD. Article 1(3) IDD provides that the IDD shall not apply to ancillary insurance intermediaries carrying out insurance distribution when several conditions are met. If the relevant conditions are met, this ancillary insurance intermediary may distribute insurance cover.
We wonder to what extent such ancillary insurance intermediary A is entitled to sub-delegate its distribution right to another distributor, which would also act as an ancillary insurance intermediary B. In such sub-distribution process, would the ancillary insurance intermediary A keep its derogatory status of article 1(3) of IDD or would this ancillary insurance intermediary A become a distributor fully subject to IDD?

EIOPA answer

The answer to this question is provided by the European Commission.

‘Ancillary insurance intermediaries’ are defined in Article 2(1) point 4 IDD as natural or legal persons who, for remuneration, take up or pursue the activity on insurance distribution on an ancillary basis, provided that (among other conditions) their principal professional activity is other than insurance distribution and that the natural or legal person “only distributes certain insurance products that are complementary to a good or service”. Article 1(3) IDD provides that ancillary insurance intermediaries are exempted from the scope of the Directive if (among other conditions) they distribute insurance products that are complementary to the good or service supplied by “a provider” and cover either (i) the risk of breakdown, loss of or damage to the good or the non-use of the service supplied by “that provider” or (ii) damage to or loss of baggage and other risks linked to travel booked with “that provider”.
It follows that suppliers of goods or services do not necessarily have to distribute the complementary insurance products themselves in order to benefit from the exemption under Article 1(3) IDD. They may also “outsource” the insurance distribution activity by entrusting other providers with the task of distributing on an ancillary basis insurance products that are complementary to the goods or services offered by them. If these other providers fulfil all the conditions of Article 2(1) point 4 and Article 1(3) IDD, they are excluded from the scope of the Directive under Article 1(3) IDD.
In the example provided, a manufacturer selling directly over the internet to end-consumers may propose complementary insurance coverage against the loss or breakdown of the device to the customers purchasing the devices on the website. Alternatively or in addition, the same manufacturer may appoint retailers for the sale of the devices. In this case, the retailers may also offer their customers complementary insurance coverage for the devices sold by them. Moreover, the manufacturer or the retailers could even “outsource” the ancillary insurance distribution by entrusting a third provider, for example an affiliate company, with the ancillary distribution of insurance products complementary to the devices sold by them.
In all these cases, the only decisive factor is that the respective distributors and the insurance products proposed fulfil cumulatively each of the conditions set out in Article 2(1) point 4 and Article 1(3) IDD. The Directive is not based on a concept of a specific entitlement to the regulated status as exempted ancillary insurance intermediary that could be sub-delegated from one entity to another. Ancillary intermediaries are by law exempted from the scope of the Directive if they fulfil the relevant conditions themselves.
Finally, if the exemption of Article 1(3) IDD applies, Article 1(4) IDD also has to be complied with. This provision imposes additional obligations on ancillary insurance intermediaries distributing insurance products despite that they are exempted from the scope of the IDD. In particular, under Article 1(4)(b) IDD, insurers and insurance intermediaries that carry out a distribution activity through an exempted ancillary insurance intermediary, are responsible for compliance with Articles 17 and 24 IDD, and for considering the demands and needs of the customer before the proposal of the contract.

Disclaimer provided by the European Commission:
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies, in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.