Brexit and the way forward for cross-border (re-)insurance coverage and pensions enterprise from the UK and Gibraltar in Germany – BaFin points new Publish-Brexit Entry Ruling | Dentons

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Following the tip of the EU-UK transition interval and the UK’s full withdrawal from the EU on December 31, 2020, (re-)insurance coverage undertakings domiciled within the UK or Gibraltar have misplaced their European passporting rights that they beforehand had beneath Article 15(1) of Directive 2009/138/EC (Solvency II). Equally, these pension funds that had been, beneath EU guidelines categorized as establishments for occupational retirement provision (IORPs), domiciled within the UK or Gibraltar, have misplaced rights beneath Articles 11 and 12 of Directive (EU) 2016/2341 (IORPs II Directive), notably those who beforehand allowed IORPs to function on a cross-border foundation with out an institution in a given EU Member State. 

The German Federal Monetary Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) has lately printed a “Normal Ruling” (“Allgemeinverfügung”) that imposes binding normal guidelines on UK insurers (Publish-Brexit Entry Ruling). Opposite to a BaFin Round that signifies how BaFin will sort out sure circumstances in its future regulatory observe, a BaFin Normal Ruling is a binding administrative act imposing legally binding directions on these corporations topic to BaFin’s supervision.

In abstract, the Publish-Brexit Entry Ruling permits these (re-)insurance coverage corporations and IORPs that fall inside its scope to proceed to wind down and run off their German enterprise with out the necessity for a further license from BaFin, supplied these corporations adjust to sure ongoing reporting necessities. The Publish-Brexit Entry Ruling is just not restricted in its territorial utility. Because of this, it applies to all UK (re-)insurers and IORPS that also have contractual relations after December 31, 2020, with purchasers domiciled or ordinarily resident in Germany. 

This Consumer Alert builds upon our December 2020 Consumer Alert discussing the important thing issues for all monetary companies suppliers in gentle of the Publish-Brexit EU-UK Commerce and Cooperation Settlement (the TCA) and focuses on the affect of BaFin’s Publish-Brexit Entry Ruling for (re-)insurers and IORPs nonetheless working from the UK or Gibraltar into Germany. This Consumer Alert must also be learn along side our January 2021 Consumer Alert assessing ESMA’s reminder on reverse solicitation rules.

Why now? 

The TCA didn’t introduce a framework to help UK or Gibraltar-based (re-)insurers or IORPs with the lack of EU passporting rights. Many affected corporations had already taken preparatory measures, particularly by transferring portfolios with EU-27/EEA domiciled policyholders to appropriately established and licensed EU-27/EEA autos inside that agency’s group. The place corporations haven’t transferred such EU-27/EEA enterprise to an appropriately permissioned car of their present group, such corporations could have transferred such enterprise to third-party insurers that do have autos which can be appropriately permissioned to transact with EU-27/EEA policyholders beneath Solvency II and/or the IORPs II Directive. 

These strikes occurred on account of the Brexit uncertainty main as much as the TCA. Whereas the EU and the UK have indicated that they’d work in direction of an additional settlement for monetary companies cooperation (and presumably entry) by March 2021, a lot uncertainty stays over whether or not the EU and the UK will conclude such a future monetary companies settlement and the way insurers could profit from it. Given the hole in what the UK and the EU-27 agreed up to now within the TCA, BaFin printed its Publish-Brexit Entry Ruling on December 31, 2020, to supply for some additional certainty and steering and finally to guard policyholders affected by this hole. 

Normal scope and technical background of the Publish-Brexit Round

The Publish-Brexit Entry Ruling took impact as of January 1, 2021, and applies to these affected (re-)insurance coverage firms and IORPs till the whole termination of their present contracts with these present policyholders domiciled or ordinarily resident in Germany. Beneath the Publish-Brexit Entry Ruling, BaFin has introduced the extent to which it is going to use its energy granted beneath part 294(7) of the German Insurance coverage Supervision Act (VersicherungsaufsichtsgesetzVAG) to oversee the winding-down/run-off of present contracts. 

Pursuant to part 296 (1) VAG, the Publish-Brexit Entry Ruling applies the provisions of the VAG in such a approach that BaFin could waive compliance with sure provisions of the VAG in entire or partly, so long as the safety of policyholders, insured individuals, third events and beneficiaries of insurers or IORPs is ensured. At current, BaFin is of the view that the authorized framework for the supervision of insurance coverage firms working from the UK and Gibraltar, as set out within the VAG for EU-27 insurers, ensures ample monetary and authorized supervision. For that reason, the Publish-Brexit Entry Ruling states that insurance coverage undertakings and IORPs domiciled within the UK and Gibraltar, which have carried out cross-border enterprise in Germany previous to December 31, 2020, is not going to require permission from BaFin pursuant to part 67 (1) VAG when finishing the winding-down/run-off of present contracts with present policyholders in Germany.

The BaFin’s Publish-Brexit Entry Ruling can be complemented by a memorandum of understanding between the UK’s Prudential Regulation Authority (PRA) and BaFin. The sensible final result of the MoU is that supervision of (re-)insurance coverage corporations and IORPs will proceed to be based mostly on Article 30 Solvency II post-Brexit. In brief, the sharing of supervisory duties between BaFin and the PRA in respect of (re-)insurers and IORPs which can be caught beneath the BaFin’s Publish-Brexit Entry Ruling will proceed. 

Importantly, ought to BaFin or the European Insurance coverage and Occupational Pensions Authority (EIOPA) conclude that the supervisory requirements within the UK and Gibraltar now not guarantee ample safety of policyholders, the MoU could also be terminated upon discover. In case the MoU is terminated, BaFin expressly reserves the precise to revert to full supervision of third-country insurance coverage undertakings for the remaining wind-down/run-off interval. In a state of affairs wherein the BaFin reverts to a strict interpretation of the VAG, it could deal with UK (re-)insurers/IORPs as “bizarre” third-country corporations, i.e. UK insurers must apply for a German license pursuant to part 67 VAG and preserve regulatory capital via property allotted with what will likely be an incoming third-country department that might have to be domiciled in Germany or via an appropriately established and licensed subsidiary situated in Germany or in one other Member State of the EU-27/EEA that in flip can “passport” its license into Germany. Companies which can be caught by and which must adjust to the provisions of BaFin’s Publish-Brexit Entry Ruling want to look at sure conduct of enterprise and regulatory reporting necessities. 

Present contracts with German policyholders

Termination versus lengthy(er)-term wind-down/run-off

Normally, the Publish-Brexit Entry Ruling requires (re-)insurance coverage firms and IORPs to wind down / run off present contracts in accordance with their phrases, i.e. to terminate their contracts to the extent that that is legally doable. Due to the excessive stage of shopper safety that German insurance coverage contract regulation supplies for, UK (re-)insurers/IORPs could certainly face a lot of restrictions when attempting to terminate insurance policies with present German purchasers. If termination is just not doable beneath relevant contractual or civil regulation rules, any preparations between related corporations caught by the Publish-Brexit Entry Ruling and their present German purchasers will stay topic to BaFin’s supervision. This strategy is wise and pragmatic as in any other case such corporations would inevitably both commit a breach of contract regulation by terminating the contracts with their purchasers with out trigger, or would conduct insurance coverage enterprise in Germany with out the license required by part 67 (1) VAG.

Consequently, the Publish-Brexit Entry Ruling goals to keep away from inadvertent violations of the VAG on the one hand and to safeguard the curiosity of policyholders, insured individuals and third events however. 


It ought to be famous that the Publish-Brexit Entry Ruling doesn’t impose any limits concerning the timeframe throughout which (re-)insurance coverage undertakings and IORPs should terminate their present contracts with German purchasers. The truth that there are not any closing dates and the BaFin doesn’t problem the authorized standing of present contracts, till transferred or naturally terminated, is sweet information for long-term enterprise, e.g. life insurance coverage contracts and pension schemes.

Relating to IORPs, a full utility of VAG license necessities wouldn’t solely have led to a change within the supervisory regime, but in addition to a necessity to watch compliance with all German employment and pension regulation necessities, one thing which might have imposed important compliance challenges for sure corporations. 

Normal Good Necessities

Even previous to Brexit and the expiry of the EU-UK transition interval, UK and Gibraltar corporations that had made use of passporting beneath the Solvency II and/or IORPs II Directive regimes needed to adjust to sure German “Normal Good Necessities” that utilized to-EU cross-border enterprise. Following the withdrawal of the UK and Gibraltar from the EU and the EEA, UK (re-)insurers and IORPS now need to adjust to all the necessities of German regulation, not solely with these classifying as Normal Good Necessities.

Reporting necessities

BaFin’s Publish-Brexit Entry Ruling requires these beneath its supervision to supply ongoing regulatory studies to make sure ongoing oversight and compliance with German regulatory provisions. (Re-)insurance coverage firms and IORPs need to report sure data concerning insurance coverage portfolios with German residents throughout all the period of the remaining wind-down/run-off interval. This set of knowledge covers the standing of pending portfolio transfers or run-offs, the appointment of contact individuals for complaints processes and additional actuarial information concerning their German (re-)insurance coverage portfolio, e.g. premiums collected, claims settled and actuarial reserves provisioned for. 

Portfolio transfers

BaFin’s Publish-Brexit Entry Ruling expressly offers with the choice to switch (re-)insurance coverage and/or IORP portfolios with German purchasers to (re-)insurance coverage corporations licensed to conduct enterprise within the EU-27/EEA. Nevertheless, to execute portfolio transfers in accordance with the foundations relevant to EU/EEA insurers in Artwork. 39 of Solvency II, BaFin required that portfolio transfers be initiated earlier than the tip of the transition interval on December 31, 2020. This strategy is in accordance with earlier EIOPA’s Brexit suggestions

UK (re-)insurers who could need to pursue the choice of a portfolio switch after expiry of the transition interval can not conduct such a switch in accordance with Artwork. 39 of Solvency II, as the supply doesn’t apply to third-country (re-)insurers. The precise portfolio-transfer guidelines for third-country (re-)insurers as supplied by Artwork. 162 and 164 of Solvency II will not be obtainable both, as these guidelines assume that third-country insurers generated insurance coverage portfolios in a sure EU-27 market, say Germany, via a totally fledged and capitalized department in that market, and the accountable regulators, say BaFin, expressly authorized the actions of the agency, together with its scheme of operations. From a German authorized and regulatory perspective, it stays questionable whether or not the portfolio-transfer guidelines relevant to insurance coverage undertakings and IORPs in Germany apply to portfolio transfers of UK insurers after the expiry of the transition interval. At any charge, portfolio transfers deliberate after December 31, 2020, require the involvement and consent of the UK regulators within the UK and the nationwide competent authorities (NCAs) within the related EU-27 Member States .

Future contracts with German policyholders and the pan-EU perspective

The Publish-Brexit Entry Ruling clearly states that its rules don’t apply to any “new” enterprise concluded with German policyholders. Quite, the Publish-Brexit Entry Ruling solely serves to facilitate the wind-down/run-off of present enterprise with German prospects. Therefore, the query arises how UK insurers can interact with EU-27 (potential) purchasers in relation to new enterprise. Because the UK and Gibraltar are actually third nations, the next market entry choices exist:

  1. Establishing an appropriately licensed, permissioned and regulatory capitalized subsidiary within the EU-27/EEA, which may then passport its companies throughout the EU-27/EEA on a cross-border companies foundation or on a cross-border institution (department) foundation; or
  2. Establishing an appropriately licensed, permissioned and regulatory capitalized third-country department in a given EU-27/EEA Member State and have the market entry, together with the agency’s underlying scheme of operations, authorized by the accountable regulator. In distinction to a subsidiary, an incoming third-country department could solely conduct enterprise (together with with sure limitations) in that given jurisdiction wherein it’s based mostly; or
  3. Counting on numerous exemptions (the place they exist) for cross-border enterprise from the UK and/or Gibraltar into the EU-27/EEA and/or counting on reverse solicitation, which is more and more beneath supervisory scrutiny by the European Supervisory Authorities and thus equally EIOPA. 

Importantly and in distinction to Artwork. 42 of the MiFiD-II Directive, Solvency II doesn’t reply the query, wherein circumstances third-country insurers could pursue different choices than those set out in that Directive, i.e. to ascertain both a subsidiary or an incoming third-country department. It must also be famous that EIOPA has not but supplied technical steering on this matter, for instance by means of a proper opinion, which might be binding upon NCAs or by means of a Q&A. Consequently, absent definitive steering, every of the EU-27 Member States NCA’s should reply the query whether or not UK corporations are literally restricted to the choices laid down by Solvency II or whether or not they’re entitled to conduct cross-border enterprise in different methods than these set out by Solvency II. 

Taking this a step additional, it’s value noting that the OECD supplies some steering on the difficulty via its Code on the Liberalization of Present Invisible Operations (the OECD Code), which was lately up to date in 2020. Whereas not a legally binding instrument within the EU-27 and definitely not within the case of all NCAs, the OECD Code states that sure operations, together with major insurance coverage that’s not obligatory within the OECD member state the place the policyholder is domiciled, ought to stay unregulated supplied that the insurance coverage contract is concluded on the initiative of the policyholder (insurance coverage by means of correspondence). The recitals of Germany’s Solvency II transposition regulation confer with the 2013 model of the OECD code and take the view that insurance coverage by means of correspondence shall stay unregulated in Germany after the transposition of the Solvency II Directive into German regulation. Nevertheless, it stays an open problem what the requirement that insurance policies should be concluded on the initiative of the policyholder means in observe. The answer for cross-border insurers ought to be to develop requirements equal to the already present requirements for reserve solicitation beneath MiFID II.

The TCA doesn’t present any normal steering how UK monetary companies suppliers, together with insurers, may strategy German prospects on a cross-border foundation. As defined in our Consumer Alert concerning reverse-solicitation rules lately issued by ESMA, it stays to be seen whether or not the UK and the EU will develop the TCA to incorporate devoted guidelines for monetary service suppliers. 

Outlook and subsequent steps

In abstract, the Publish-Brexit Entry Ruling grants certainty and units supervisory expectations on how UK and Gibraltar corporations must wind down / run off their present contracts with German ordinarily resident or domiciled purchasers in an orderly method. Nevertheless, the Publish-Brexit Entry Ruling leaves some gaps concerning portfolio transfers initiated after December 31, 2020. 

Furthermore, the Publish-Brexit Entry Ruling doesn’t present for any sensible steering on how UK and Gibraltar corporations can construction new enterprise with German prospects going ahead. Within the curiosity of regulatory oversight, it imposes new reporting necessities that apply to UK and Gibraltar corporations when winding-down/running-off their remaining enterprise with present purchasers ordinarily resident or domiciled in Germany. 

Solvency II doesn’t present for a pan-EU-27/EEA framework for third-country corporations wishing to depend on reverse solicitation. The European Supervisory Authorities, notably EIOPA, have printed their Supervisory Ideas on Relocations (SPoRs), which stay unaffected by the TCA, which the BaFin and different EU-27 have utilized of their supervisory observe. The SPoRs stay unaffected by BaFin’s Publish-Brexit Entry Ruling. Whereas BaFin’s pragmatic and focused measures present certainty and shopper safety in a largely balanced trend, any future efforts of EIOPA will have to be taken into consideration. General, affected corporations will need to monitor this growth to make sure they, the place affected, adjust to native supervisory expectations on the one hand, and use the chance for future enterprise fashions now however. 


  1. Accessible right here.↩
  2. Accessible right here.↩
  3. Accessible solely in German right here.↩
  4. Accessible right here.↩
  5. Accessible right here.↩
  6. See Sections 61 to 66a, 169, 243 to 243b VAG.↩
  7. A observe printed by the BaFin on this topic is accessible right here; see additionally EIOPA’s normal overview right here. ↩
  8. Sections 67 (2) Sentence 1, 67 (4), 294 (7), Part 305 (1) No. 1 VAG. ↩
  9. As carried out via part 63 VAG.↩
  10. EIOPA-BoS-19/040 19 February 2019 Be aware 22, obtainable right here.↩
  11. See Part 73 VAG. ↩
  12. See Part 13 (1), 237 (1) VAG. ↩
  13. See Sections 162 (2) and 166 Solvency II.↩
  14. See Sections 162 (1) and 163 VAG.↩
  15. Accessible right here.↩
  16. Artwork. 2 a) Annex A ↩
  17. BT Drucksache 18/2956, web page 255.↩
  18. Accessible right here.↩
  19. For a full entry to our protection on the SPoRs please go to our Eurozone Hub. ↩

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