Friday, September 30, 2016
Fabian Stancke, Brunswick European Law School and Josef Hainz, Dentons Europe LLP discuss EU Competition Rules in the Insurance Sector: A Different World in Change.
ABSTRACT: Although the insurance industry is subject not only to its sector-specific legal framework and commercial peculiarities, it is also a very different world with regard to European competition law and practice.1 The amount of sector-specific co-operation is, at best, only comparable to the banking sector. The European Commission (Commission), in the past, has acknowledged that co-operation in the industry can enhance efficiency, for instance by helping insurers to share large and unpredictable risks or to gain better understanding of certain specific risks.2 Like in the banking and other heavily regulated sectors, the majority of sector-specific co-operation of the insurance industry has never been expressly exempted from the ban of restrictive agreements in Art. 101 para. 1 TFEU. Although this fact leads to legal uncertainty and some administrative proceedings as well as to long-standing discussions between stakeholders and competition authorities as well as in academic literature, in most cases apparently workable solutions were found. However, new considerations by the Commission not to renew the still existing Block Exemption Regulation (BER) that contains rules on co-operation in the fields of joint compilations, tables and studies3 that require specific risk-related information exchange and common coverage of certain types of risks (‘co-(re)insurance’) may lead to yet unknown and possibly undesirable effects of the competitive structure of the European insurance industry.