Insurance intermediation aural the ambit of the Swiss Federal Act on Allowance Supervision (‘ISA’) by apart insurance intermediaries (usually allowance brokers, see 3.1 below) in Switzerland triggers a claim to annals with the Swiss Banking Bazaar Authoritative Ascendancy (‘FINMA’) (Article 43, branch 1, ISA). In contrast, angry allowance intermediaries (usually allowance agents, see 3.1 below) are not accountable to any allotment claim in Switzerland but accept a appropriate to annals with FINMA (Article 43, branch 2, ISA).
The appellation ‘insurance intermediation’ in Swiss insurance adjustment is actual ample and includes both absolute insurance affairs as able-bodied as alms allowance contracts, both in the interests of an allowance adventure or of a (prospective) client/insured being (Article 40, ISA; see 1.2 below).
Furthermore, allowance intermediaries accept assertive information obligations vis–vis the client, irrespective of whether they are registered with FINMA or not (see 4.1). In particular, they charge accommodate the insured with admonition apropos the intermediary’s character and abode and acknowledge their acknowledged relationships with the allowance undertakings on whose account they act, as able-bodied as the names of these insurance undertakings (Article 45, ISA).
The appellation ‘insurance intermediation’ in the acceptation of ISA is actual ample and includes both absolute allowance contracts as able-bodied as alms allowance contracts, acting either on account or in the absorption of an allowance adventure or on account or in the absorption of accession being (usually the -to-be client/insured) (Article 40, ISA; see additionally 3.1 below).
An allowance abettor ‘concludes’ an insurance arrangement in the acceptation of ISA, for example, by entering into an allowance arrangement as the adumbrative of one affair to that arrangement (ie, the insured or the allowance undertaking) beneath a ability of attorney.
The appellation ‘offering allowance contracts’ is not clearly authentic by approved and case law and is accordingly accountable to interpretation. Swiss acknowledged admiral accept able as accordant any activities that admission the applicant in account of his willingness/readiness to admission into a specific allowance contract or contrarily abutment the cessation of such a arrangement by the client. Such activities include, in particular, advising on allowance articles as able-bodied as basic activities such as risk analysis, assessment analysis, acquisition admonition all-important for the cartoon up of an allowance action and advancing and casual on allowance documentation.1 In addition, activities agitated out during the appellation of an absolute allowance arrangement or allowance portfolio may be advised accordant to the admeasurement they accommodate admonition apropos the face-lifting or alteration of insurance affairs or of the absolute portfolio.2 As the notification and/or adjustment of allowance claims to/with the accordant insurer consistently do not accurately aim at the renewal or alteration of absolute allowance contracts, they should not authorize as allowance intermediation.3
Activities on a added accepted level, such as the altercation of allowance needs/requirements with a applicant by blazon or class of allowance artefact (as against to a altercation apropos specific allowance products) and additionally with account to the ambit of required advantage should in our appearance not yet authorize as alms of allowance contracts.
In principle, any being alms or absolute insurance affairs on account of an allowance adventure or accession person (see 1.2) qualifies as an allowance abettor (Article 40, ISA), irrespective of whether allowance intermediation activities are conducted as accessory activities or on a stand-alone basis.4 However, alone alleged apart insurance intermediaries (as against to angry allowance intermediaries) are appropriate to annals with FINMA (Article 43, branch 2, ISA; see 2.1 below). Both apart and angry allowance intermediaries are accountable to admonition obligations (Article 45, ISA; see 4.1 below).
Untied allowance intermediaries charge annals in the annals of allowance intermediaries with FINMA (Article 43, branch 1, ISA). Angry allowance intermediaries are not accountable to a registration claim but accept the appropriate to annals with FINMA (Article 43, branch 2, ISA).
Insurance intermediaries authorize as angry if they are legally, economically or in added means angry to an allowance undertaking, in accurate if they generate, in the advance of a accustomed calendar year, added than 50 per cent of their agency aggregate with one or two allowance undertakings (eg, an allowance abettor who intermediates allowance articles of up to three insurance undertakings is consistently a angry allowance abettor as it generates added than 50 per cent of its agency aggregate with one or two allowance undertakings by definition), if they accept a direct or aberrant accord of added than ten per cent of the equity basic in an allowance undertaking, or if they accept a management action in an allowance adventure or contrarily exercise admission on the business of an allowance adventure (Article 183, branch 1 Ordinance on the Supervision of Clandestine Insurance Companies (ISO)).
To be able to register, an allowance abettor has to fulfil the afterward requirements:
Under Swiss regulations, both the allowance abettor close as able-bodied as the amenable alone bodies alive for the allowance abettor close are accountable to registration requirement.5 However, the allowance adventure itself, including its admiral and chief officers, is not advised an allowance abettor apropos the intermediation of its own allowance products.6
The annals maintained by FINMA can be accessed online (Article 42, branch 2, ISA and Commodity 188, ISO).7 Tied allowance intermediaries accept the appropriate to annals but are not accountable to a allotment claim (Article 43, branch 2, ISA). It is accordingly accessible for angry allowance intermediaries not to be registered in the annals of allowance intermediaries alike admitting they are accustomed to conduct allowance intermediation activities.
Registration requirements for allowance intermediation activities of apart allowance intermediaries in Switzerland (see 2.1) can be triggered irrespective of whether the relevant allowance abettor has its registered appointment in Switzerland or in accession country.8 In addition, the abode area the allowance intermediation action is (physically) conducted is not accordant either for the assurance of whether such action is accordant beneath Swiss regulations. Rather, one has to attending at the articles that the allowance abettor affairs to action to -to-be clients.
Where allowance articles of adopted domiciled insurance undertakings are to be intermediated (and the allowance artefact is aural the ambit of ISA), a allotment claim applies, in principle, if: (i) allowance intermediation activities are conducted appear a accustomed being or a acknowledged commodity domiciled in Switzerland as the policyholder or as the insured; or (ii) allowance intermediation activities are conducted regarding allowance advantage of risks in affiliation with assets amid in Switzerland (Article 1, paragraphs 1 and 3, ISO). An insurance abettor may, in any case, alone average allowance products that, from a Swiss authoritative perspective, an allowance undertaking is acceptable to write.
The intermediation of articles of allowance undertakings domiciled in Switzerland, in principle, consistently triggers a allotment requirement. As a accepted principle, insurance intermediation is not accountable to a Swiss allotment requirement if it refers to any allowance business alfresco the ambit of ISA (eg, de minimis allowance activities beneath the materiality beginning of ISA or reinsurance business of adopted reinsurers cross-border into Switzerland).9
As Switzerland is not a affiliate of the European Union, the right of enactment and the abandon to accommodate casework as categorical in the Directive 2002/92/EC of the European Parliament and the Council of 9 December 2002 on allowance arbitration are not applicable. Furthermore, the accord amid the Swiss Confederation and the European Community apropos the chargeless movement of bodies does not accommodate for any abetment apropos the allotment requirement for allowance intermediaries. Currently, Switzerland alone maintains a accord on this amount with the Principality of Liechtenstein. Beneath this treaty, in principle, allowance intermediaries alone have to annals with the accordant authoritative ascendancy of one country in adjustment to be acceptable to appoint in allowance intermediation activities in the added country territory.10
Swiss allowance authoritative law, in principle, only differentiates amid angry allowance intermediaries (Article 43, branch 2, ISA) and apart allowance intermediaries (Article 43, branch 1, ISA).
Tied allowance intermediaries are customarily declared as allowance agents, and apart allowance intermediaries as allowance brokers,11 apropos to the archetypal set-up of the acknowledged accord amid the corresponding insurance intermediaries and the allowance undertakings and/or the insured (see 18.104.22.168 and 22.214.171.124). However, the acknowledged categorisations based on Swiss clandestine law do not consistently accord with the abilities according to Swiss allowance authoritative law. Consequently, some allowance agents authorize as apart insurance intermediaries and some allowance brokers authorize as angry insurance intermediaries.12 Allowance intermediaries may additionally be alive in the banking bazaar in added functions (eg, as banks, banking intermediaries or advisers). However, this does not, in principle, affect their accomplishment beneath Swiss insurance authoritative law.
Please agenda that a bill for a new Banking Casework Act (‘FFSA’) is accepted to be debated in Swiss Federal Parliament in the advance of 2015 and ability admission into force as aboriginal as 2017 or 2018. Beneath the accepted abstract FFSA, the existing annals of allowance intermediaries would be accumulated with a new annals for ‘client advisors’ in the banking area and, in addition, not alone apart but additionally angry allowance intermediaries would be appropriate to register. As a consequence, the distinction amid angry and apart allowance intermediaries would no best be cogent with attention to the allotment requirement. Furthermore, beneath the accepted abstract FFSA, allowance intermediaries would alone be accustomed to baptize themselves as ‘independent’ if (i) they accede a acceptable ambit of allowance articles offered on the market; and (ii) do not accept any allowances in affiliation with the accouterment of third-party services, or, if they do, canyon them on to the audience (Article 9, FFSA per analogiam).13
In principle, neither Swiss allowance adjustment nor mandatory civilian law bind allowance intermediaries to admission into a written arrangement with the insurer. The Code of Conduct of the Swiss Allowance Brokers Affiliation (SIBA) recommends but does not crave allowance brokers to admission into a accounting arrangement with the allowance undertaking.14 In any case, it is accepted to do so. In addition, for example, area the allowance intermediary acts as an allowance agent, it may, depending on the acknowledged blazon of acknowledged accord amid the allowance abettor and the allowance undertaking, be appropriate to admission into a written contract, as assertive types of agreements are alone accurate when accomplished in writing.15
Yes, it is in assumption accessible for an allowance intermediary to admission into a arrangement with the insurer and in about-face admission into one or added agreements with added allowance intermediaries.
However, the capital abettor (ie, the one in a direct accord with the allowance undertaking) should ensure that the added intermediaries with whom he enters into agreements comply with allotment requirements and added authoritative duties, if applicable.
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1 BSK VAG-Alois Rimle, Art. 40 N 10; Martin Kessler, Die Stellung der gebundenen und ungebundenen Versicherungsvermittler nach Inkrafttreten des neuen VAG am 1. January 2006, Diss. Zrich 2009, N 77.
2 BSK VAG-Alois Rimle, Art. 10 N 12; Martin Kessler, N 78 f.
3 However, in accurate the adjustment of allowance claims by an allowance abettor on account or in the absorption of an allowance adventure ability be advised as outsourcing of an capital action of an allowance adventure and appropriately crave an outsourcing agreement, to be included in the authoritative business plan of the allowance undertaking, which has to be filed with FINMA (art. 4, para. 2 lit. j ISA; BSK VAG-Alois Rimle, Art. 40 N 12).
4 Stephan Fuhrer, Schweizerisches Privatversicherungsrecht, Zrich 2011, N 7.26.
5 BSK VAG-Alois Rimle, Art. 40 N 14.
6 BSK VAG-Alois Rimle, Art. 40 N 14.
7 http://register.vermittleraufsicht.ch/search.aspx?lng=en (last accessed 17 July 2015).
8 BSK VAG-Helmut Heiss/Ulrike Mnnich, Art. 2 N 120.
9 BSK VAG-Helmut Heiss/Ulrike Mnnich, Art. 2 N 103 and 110; BSK VAG-Alois Rimle, Art. 41 N 10; Sybille Kser/Helmut Studer, Versicherungsvermittlung, in: Waldmeier (Hrsg.), Versicherungsaufsicht, Zrich/Basel/Genf 2007, p. 293.
10 Accord amid the Swiss Confederation and the Principality of Liechtenstein apropos absolute allowance and allowance intermediation, SR 0.961.514.
11 BSK VAG- Helmut Heiss/Ulrike Mnnich, Art. 2 N 120.
12 Stephan Fuhrer, N 7.9.
13 Federal Department of Finance, Explanatory Report of 25 June 2014 on the appointment abstract bill of the Banking Services Act and on the Federal Act on Banking Institutions Act, p. 119, et seq.
14 Swiss Allowance Brokers Association, Code of Conduct as of 29 October 2008, as adapted 21 January 2015, N 48.
15 This applies, for example, to assertive specifics of an acceding back the acknowledged accord is able as a bartering travellers’ arrangement (article 347a, CO).
Previously appear in IBA Allowance Committee Substantive Project 2015
The agreeable of this commodity is advised to accommodate a general adviser to the accountable matter. Specialist admonition should be sought about your specific circumstances.
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