(Act n°. 94-679 of 8 August 1994, Article 4, I,
Official Journal of 10 August 1994 in force on 1 January 1995)
(Act n°. 98-261 of 6 April 1998, Article 8, I,
Official Journal of 7 April 1998)
(Act n°. 2001-420 of
(Order n°. 2001-766 of
The firms referred to in Article L310-1 must at all times respect the solvency
margin in accordance with the terms defined by decree in Conseil d’Etat.
Article L334-2
(inserted by Order n°. 2001-766 of
For application of the law and regulations applicable to the solvency of firms:
1 The expression “parent firm” means a firm that exclusively controls a firm
within the meaning of paragraph II of Article L233-16 of the Commercial Code or
that exercises a dominant influence over a firm by reason of the existence of
substantial long term solidarity links as a result of financial undertakings,
corporate directors or common services. Said second firm is referred to as the
“subsidiary firm”. Any subsidiary firm of a subsidiary firm shall be deemed to
be a subsidiary of the parent firm.
2 The expression “holding” means the act of directly or indirectly owning 20%
or more of the voting rights or capital of a firm.
3 The expression “holding firm” means a parent firm or a firm that owns a
holding in a firm.
4 The expression “subsidiary firm” means any affiliated or holding firm or a
firm affiliated to holding firms of the insurance firm.
5 The expression “related firm” means any affiliated
or holding firm or a firm affiliated to holding firm of the insurance firm.
6 The expression “insurance group” means a group
formed of:
a) at least two firms subject to State control pursuant to Article L310-1 and
having its registered office in
b) or, on the other hand, at last one firm subject to
State control pursuant to Article L310-1 and having its registered office in
France and, on the other hand, a group insurance company, a firm subject to
State control pursuant to Article L310-1-1, a provident institution or a union
governed by title III of chapter IX of the French Social Security Code, a
mutual or union governed by chapter II of the French Mutual Insurance Code or
an insurance or reinsurance firm whose registered office is located outside
France.
The entities referred to in a and b must be connected by one of the links
defined in paragraph 1 to 5 above.
Article L334-3
(inserted by Order n°. 2001-766 of
The financial situation of firms subject to State control pursuant to Article
L310-1, having their registered office in
Firms subject to State control pursuant to Article L310-1, having their
registered office in
The additional supervision shall take account of firms related to the aforementioned
firms. The insurance regulatory commission may decide not to subject a related
firm to additional supervision if it considers that said firm’s interest is
negligible or contrary to the objectives of said supervision.
A decree in Conseil d’Etat defines the terms of application of this Article.
Title IV
Accounting and statistics provisions
Article L341-1
(Act n°. 89-1014 of 31 December 1989, Article
46, Official Journal of 3 January 1990 in force on 1 July 1990)
(inserted by Act n°. 94-5 of
A decree in Conseil d’Etat defines the terms in which the provisions of this
chapter shall apply to firms underwriting the transactions referred to in
paragraphs 1 and 2 of Article L310-1 of the Insurance Code in order to provide
separate management to protect the interests of the insured of each of said two
categories of transactions.
Chapter II : Accounting of insurance and
capitalisation firms
Article L342-1
(inserted by Act n°. 94-679 of
Firms subject to State control pursuant to Article L310-1-1 shall assess their
assets and undertakings, keep their accounts, present and publish their
accounts in accordance with the same terms as firms subject to State control
pursuant to Article L310-1 and having their registered office in
Chapter IV : Insurance categories and statements to be
produced
Article L344-1
(inserted by Act n°. 89-1014 of
Firms underwriting life insurance or capitalisation transactions shall draw up
at each year end a statement which shall be attached to their accounts. Said
statement shall record the book value and the realisation value of all
investments listed as assets.
Moreover, said statement shall show the share of investments that corresponds
to undertakings made to the insured and beneficiaries of the contracts, such as
such share would be recorded in the event of the transfer of the portfolio of
contracts.
A decree in Conseil d’Etat defines the rules for application of the two
previous paragraphs.
Chapter V : Consolidated accounts
Article L345-1-1
(Act n°. 99-532 of 25 June 1999, Article 53, IV,
Official Journal of 29 June 1999)
(Order n°. 2001-766 of
The headquarters of group insurance companies defined in Article L322-1-2 must
be located in
Article L345-2
(Act n°. 94-679 of 8 August 1994, Article 4, IV,
Official Journal of 10 August 1994 in force on 1 January 1995)
(Act n°. 98-261 of 6 April 1998, Article 8, II,
III, Official Journal of 7 April 1998)
(Act n°. 99-532 of 25 June 1999, Article 52, II,
Official Journal of 29 June 1999)
(Order n°. 2001-350 of
(Order n°. 2001-766 of
Firms subject to State control pursuant to Article L310-1 and having their
registered office in France, firms referred to in Article L310-1 and group
insurance companies defined in Article L322-1-2 must draw up and publish
consolidated accounts in accordance with the terms defined by rule of the
accounting regulation committee. Firms included by global integration in the
consolidated accounts of a firm that is itself subject to an obligation to
consolidate its accounts pursuant to this paragraph shall not however be
subject to said obligation.
When the insurance regulatory commission considers that the consolidated
accounts of a group insurance company does not enable it to pertinently judge
compliance with the additional supervision rules laid down in Article L334-3,
said commission shall exempt said group insurance company from the obligation
defined in previous paragraph.
When two or more firms subject to State control pursuant to Article L310-1 or
Article L310-1-1, group insurance companies defined in Article L322-1-2,
provident institutions or unions governed by title III of Book IX of French
Social Security Code or mutuals, pension bodies or unions governed by Book II
of the French Mutual Insurance Code form a group whose cohesion does not ensue
from capital links, one of them shall draw up and publish combined accounts. A
decree determines the institution referred to in the previous paragraph bound
by said obligation. Combined accounts are formed by grouping all of the
accounts of the concerned institutions drawn up, where applicable, on a
consolidated basis, in accordance with the terms defined by a rule of the
accounting regulatory commission.
Title V
Freedom of services and coinsurance relating to
States, non members of the EU, parties to the European Economic Space agreement
Chapter I: Provisions relating to the freedom of
services in assurance against damage
Section
I : General provisions
Article L351-1
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14, Official
Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
II, Official Journal of 5 January 1994 in force on 1 July 1994)
In this title:
1 the word “State” means the State party to the European Economic Space
agreement non member of the European Communities,
2 the expression “freedom of services” means the rules applicable to
transactions carried out within the framework of freedom of services defined in
paragraph 4 of Article L310-3 when the following circumstances or any one of
them occurs:
a)
the transaction is carried out from a State that is not a member of the
European Communities,
b)
the State of origin of the firm that carries out the transaction is not a
member of the European Communities,
c)
the State where the risk covered or undertaking made is located is not a member
of the European Communities.
Article L351-2
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 91-716 of 26 July 1991, Article 1, VII,
Official Journal of 27 July 1991 in force on 20 November 1992)
(Act n°. 92-665 of 16 July 1992, Article 32,
III, Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
This title shall not apply to insurance transactions related to:
-
work-related accidents and occupational diseases,
-
public liability of motor vehicles, apart from the carrier’s liability,
Moreover, this chapter shall not apply to risks related to building work which
is covered by compulsory insurance.
Section II : Conditions of exercice
Article L351-4
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 91-716 of 26 July 1991, Article 1,
VIII, Official Journal of 27 July 1991 in force on 20 November 1992)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 6, I,
II, Article 30, I, Official Journal of 5 January 1994 in force on 1 July 1994)
Any insurance firm may cover major risks as defined in Article L111-6 in
Article L351-5
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
IV, Official Journal of 5 January 1994 in force on 1 July 1994)
Any insurance firm may cover risks other than those referred to in Article L351-4
in
However, such firm may operate in
Article L351-6
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
Any insurance firm that covers a risk other than those referred in Article
L351-4 in
Any insurance firm that covers major risks in France in the framework of
freedom of services must submit the standard and special terms of insurance
policies, manuals of rates, forms and other printed matter that the firm
intends using to the Minister in charge of the Economy and Finance when
it is requested to do so in order to check compliance with the law and
regulations applicable to such risks.
Article L351-6-1
(Act n°. 91-716 of 26 July 1991, Article 1, IX,
Official Journal of 27 July 1991 in force on 20 November 1992)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
Any firm that covers the risks of public liability ensuing from use of motor
vehicles in the framework of freedom to provide service shall appoint a representative
in
Section III : Administrative penalties
Article L351-7
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14, Official
Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
When an insurance firm that operates in
If the firm disregards the order given pursuant to the previous paragraph, the
insurance regulatory commission shall inform the regulatory authorities of the
member State of the establishment of said firm and, where applicable, the State
of its registered office thereof and request them to take all appropriate
measures to ensure that the firm complies with the rules.
Article L351-8
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
If the firm persists in violating the rules applicable to it in France, the
insurance regulatory commission may take appropriate measures to prevent
further violation and if, the circumstances so require, prohibit the firm from
continuing to conclude insurance contracts in the framework of freedom of
services in France and impose, in accordance with the terms of Article L310-18,
the penalties listed in said same Article, apart from those provided for in the
fifth (4) and seventh (6) paragraphs of said Article. The insurance regulatory
commission shall publish the measures that it ordered in newspapers and
publications of its choice and display them at the places and for the time that
it specifies at the firm’s expense.
Article L351-9
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
V, Official Journal of 5 January 1994 in force on 1 July 1994)
When the proper regulatory authority informs the insurance regulatory
commission that a firm operating in France in the framework of freedom of
services is concerned by a recovery plan or a short term financing plan or a
measure that restricts or prohibits the free disposal of its assets, it shall
take restriction or prohibition measures in respect of the assets of said firm
located in France in order to safeguard the interests of the insured and
beneficiaries of the contracts.
Article L351-10
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Article 32, II, III, Official Journal of 5 January 1994 in force on 1 July
1994)
When the proper regulatory authority informs the insurance regulatory
commission of the withdrawal of the licence of a firm operating in
Chapter II: Provisions relating to coinsurance
Article L352-1
(Act n°. 89-1014 of 31 December 1989, Article 1,
Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-665 of 16 July 1992, Article 14,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Article 31, Official Journal of 5 January 1994 in force on 1 July 1994)
Any insurance firm whose registered office is located on the territory of a
State party to the European Economic Space agreement non member of the European
Communities and which complies with the law of the country where it is established
shall be exempted from the obligations provided for in Articles L321-7 and
L351-4 in order to participate, without being a leading underwriter, in
covering a major risk as defined in Article L111-6 located in France as part of
a coinsurance transactions carried out in the framework of freedom of services
and at least one of whose participants is not established in the same member
State as the leading underwriter.
Chapter III: Provisions relating to the freedom of
services in life insurance and capitalisation
Section
I : General provisions
Article L353-2
(Act n°. 92-665 of 16 July 1992, Article 15,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
This chapter shall not apply to:
1 transactions that consist of managing the investments of firms other than
those referred to in Article L310-1 that provide benefits on survival to a
stipulated age, death or cessation or reduction of activity,
2 transactions defined in Article 1 of chapter I of title IV of Book IV.
Section
II : Conditions of exercice
Article L353-4
(Act n°. 92-665 of 16 July 1992, Article 15,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
The policyholder shall be deemed to have taken the initiative when at least one
of the following two situation arises:
1 The contract has been underwritten without the policyholder being canvassed
in
2 The policyholder contacted an insurance intermediary established in
II. - Insurance firms shall benefit from the provisions of the first paragraph
of this Article only if the policyholder, before underwriting the contract, has
signed a statement whereby he acknowledges that he knows that the insurance
firm in question is subject to the control of the State where it is
established. Where applicable, it shall also sign a similar statement before
taking knowledge of the information referred to in the last paragraph (2°) of
I.
III - Any insurance firm, that makes undertakings in France within the
framework of freedom of services and in accordance with the terms of this
article, is bound to submit to the Minister in charge of Economy and Finance
the standard and special terms of insurance terms of insurance policies,
manuals or rates, forms and other printed materials that the firm uses, when it
is requested to do so in order to check compliance with the legislative and
regulatory provisions applicable to said undertakings.
Article L353-5
(Act n°. 92-665 of 16 July 1992, Article 15,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
IV, Official Journal of 5 January 1994 in force on 1 July 1994)
Any insurance firm may make undertakings in
However, such firm may operate in
Article L353-6
(Act n°. 92-665 of 16 July 1992, Article 15,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
Any insurance firm that makes undertakings in
Section
III : Administrative penalties
Article L353-7
(Act n°. 92-665 of 16 July 1992, Article 15,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 30, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
Insurance firms referred to in Articles L353-4 and L353-5 shall be subject to
the administrative penalties provided for under Articles L351-7 to L351-9 as
well as to disqualification from carrying on business provided for in Article
L351-14.
Chapter
IV : Portfolio transfers
Article L354-1
(inserted by Act n°. 94-5 of
French insurance firms and their branches referred to in paragraph 1 of Article
L310-2 as well as the French branches of insurance firms referred to in
paragraph 3 of the same Article may be authorised, in accordance with the terms
defined in the second, third, fourth and seventh paragraphs of Article L324-1,
to transfer all or part of their portfolios of contracts executed in the
framework of freedom of services within the meaning of Article L351-1 to one or
more firms whose registered office(s) is or are located in a State party to the
European Economic Space agreement or [to] their branches established in States
parties to the European Economic Space agreement or to one or more insurance
firms established and authorised in the State of the risk or of the undertaking
party to the European Economic Space agreement. The Minister in charge of the
Economy and Finance shall approve the transfer only if it has been
approved by the regulatory authorities of the State where transactions are to
be carried out within the framework of freedom of services.
Moreover, when the assignee firm is established in a State party to the
European Economic Space agreement other than the State where transactions are
to be carried out within the framework of freedom of services, the Minister in
charge of the Economy and Finance shall approve the transfer only if it has
been approved by the regulatory authorities of the State of establishment of
the assignee firm. However, when the assignee firm is a branch established in a
member State of the European Communities of which the State of origin is also a
member, the approval referred to in this paragraph shall be granted by the
regulatory authorities of the State of origin of the assignee firm.
Article L354-1-1
(inserted by Act n°. 94-5 of
Firms and branches referred to in the first paragraph of Article L354-1 as well
as the French branches of insurance firms referred to in paragraph 4 of Article
L310-2 may be authorised in accordance with the terms of Article L354-1 to
transfer all or part of their portfolios of contracts covering risks or
undertakings located on the territory of a State member of the European
Communities to one or more assignee firms operating within the framework of
freedom of services within the meaning of Article L351-1 in the State of the
risk or the undertaking.
Article L354-2
(inserted by Act n°. 94-5 of
The lawfully approved transfer by the proper authorities of the concerned
Stated of all or part of a portfolio of contracts executed within the framework
of freedom of services within the meaning of Article L351-1 in France by a firm
established in a State party to the European Economic Space agreement other
than France to an assignee established in one of the States party to the
European Economic Space agreement shall be binding on insured persons,
policyholders, beneficiaries of the contracts and creditors insofar as the
provisions of first sentence of the second paragraph of Article L324-1 have
been complied with and the Minister in charge of the Economy and Finance has
not objected to the planned transfer.
The transfer shall be binding as from the date of the decision by the proper
authorities of the concerned States authorising the transfer has been made
public by a notice published in the Official Journal. However, the insured
shall be entitled to terminate the contract within a period of one month
following the date of said publication.
The provisions of the first two paragraphs of this Article shall also apply to
transfers of portfolios of contracts covering risks or undertakings located in
France by firms established in a member State of the European Communities, of
which the State of origin is a member State of the European Communities other
than France, to one or more assignee firms operating within the framework of
freedom to provide services within the meaning of Article L351-1 in France.
Title VI
Freedom of establishment and freedom of services
within the EU
Article L361-1
(inserted by Act n°. 94-5 of
In this title:
a)
the expression “
b)
the expression “Community insurance firm” means an insurance firm whose State
of origin is a
c)
Chapter
II : Conditions
of exercice
Article L362-1
(inserted by Act n°. 94-5 of
Any community insurance firm may establish in
Article L362-2
(inserted by Act n°. 94-5 of
Any community insurance firm established in a member State other than
France may cover risks or make undertakings in France within the framework of
freedom of services from said establishment in accordance with the licences
granted by the regulatory authorities of the State of origin, provided that the
latter have first forwarded the required information to the Minister for
Economy and Finance. An order defines the provisions for application of this
Article as stated in the previous Article.
Article L362-3
(inserted by Act n°. 94-5 of
Any community insurance firm that covers in
Article L362-4
(inserted by Act n°. 94-5 of
The provisions of titles II to V of this Book shall not apply to transactions
carried out in accordance with the provisions of Articles L362-1 and L362-2.
As required, a decree in Conseil d’Etat specifies the obligations imposed on
the firms referred to in Articles L362-1 and L362-2 by reasons of public
interest.
Chapter III : Control and penalties
Article L363-1
(inserted by Act n°. 94-5 of
In order to exercise control over community insurance firms and notwithstanding
the provisions of Article 1 a of Act n°. 68-678 of
The regulatory authorities of the State of origin of the firms may directly or
through the intermediary of persons they authorise for this purpose perform
audits on the spot of branches of community insurance firms established in
Article L363-2
(inserted by Act n°. 94-5 of
Based on a reasoned request by the regulatory authority of the State of origin
of the firms, the insurance regulatory commission shall restrict or prohibit
the free disposal of all or part of those assets of community insurance firms
located in
When the commission has been informed that the authorisation of a community
insurance firm operating in France within the framework of freedom of services
or freedom of establishment has been withdrawn or that it is in liquidation, it
shall assist the regulatory authority of the State of origin and, upon its
request, take the necessary measures to protect the interests of the insured in
accordance with the terms of Article L323-1-1.
Article L363-3
(inserted by Act n°. 94-5 of
Any community insurance firm that operates in
Article L363-4
(inserted by Act n°. 94-5 of
When a community insurance firm breaches legislative or regulatory provisions
applicable to it, the insurance regulatory commission may implement the
procedure defined in Article L351-7.
If the firm persists in violating the rules applicable to it, the insurance
regulatory commission may take appropriate measures, if the circumstances so
require, to prevent further violations: it may impose the penalties provided
for in the second, third and fourth paragraphs as well as the eighth paragraph
of this Article, in accordance with the terms of the ninth, tenth and eleventh
paragraphs of Article L310-18. In accordance with the same terms, it may also
suspend the general agent and prohibit the firm from entering into insurance
contracts in
In the event of emergency, the measures provided for in the previous paragraph
may be taken prior to implementation of the procedure defined in Article
L351-7.
As required, a decree in Conseil d’Etat specifies the terms of application of
this Article.
Chapter
IV : Portfolio
transfers
Article L364-1
(inserted by Act n°. 94-5 of
The transfer of all or part of a portfolio of contracts entered into in France
within the framework of freedom of establishment or freedom of services by a
community insurance firm to an assignee established in a member State of the
European Communities whose State of origin is also a member of the European
Communities or to an assignee authorised in accordance with the provisions of
Article L321-7 and L321-9 shall be binding on the insured, policyholders,
beneficiaries of the contracts and creditors insofar as the provisions of the
first sentence of the second paragraph of Article L324-1 have been complied
with and the Minister in charge of the Economy and Finance has not objected to
the planned transfer.
The transfer shall be binding as from the date of the decision by the proper
authorities of the concerned States authorising the transfer has been made
public by a notice published in the Official Journal. However, the insured
shall be entitled to terminate the contract within a period of one month
following the date of said publication.
Book IV
Organisations and special insurance schemes
Title I
General insurance organisations
Chapter I: National Insurance board
Section I : Organisation and attributions
Article L411-1
(Act n°. 89-1014 of 31 December 1989, Article
17, Official Journal of 3 January 1990 in force on 1 May 1990)
(Order n°. 2001-350 of
(Act n°. 2001-420 of
A national insurance board has been established:
Said board shall be chaired by the Minister in charge of the Economy and
Finance or, in his absence, by the director of insurance who shall be an
ex officio member thereof.
The board shall also include:
-
a deputy appointed by the French National Assembly,
-
a senator appointed by the Senate,
-
a member of the Conseil d’Etat having the rank of advisor appointed by the
vice-president of the Conseil d’Etat,
-
six representatives of the State,
-
three personalities chosen by reason of their expertise, including a professor
from the Law Faculty,
-
twelve representatives of the insurance professions,
-
five representatives of the staff of the insurance firms referred to in Article
L310-1,
-
eight representatives of the insured including a representative appointed by
the local authorities,
-
the chairman of the supervisory board of the guarantee fund established under
Article L423-1 or a member of the management board that represents it.
Apart from the chairman and director of insurance, the members of the national
insurance board shall be appointed for a renewable three year period.
The national insurance board shall meet in plenary session at least twice a
year.
A decree in Conseil d’Etat defines the procedure for appointing the members
referred to in the seventh to twelfth paragraphs above and the functionning
conditions of the national insurance board.
Article L411-2
(inserted by Act n°. 89-1014 of
The national insurance board shall be consulted in respect of all questions
relating to insurance, reinsurance, capitalisation and assistance. It may be
consulted at the request of either the Minister in charge of the Economy and
Finance or the majority of its members.
It is consulted by the Minister in charge of the Economy and Finance concerning
any government bills before their examination by the conseil d’Etat, any draft
European Communities as well as any draft decrees falling within the scope of
its competence.
It may submit all proposals relating to the insurance business and law as well
as prevention to the Minister for Economy and Finance.
It shall send a report related to insurance to the President of the Republic
and to Parliament.
Article L411-3
(inserted by Act n°. 89-1014 of
A commission of insurance firms, a regulation commission and a consultative
insurance commission shall be established on the national insurance board. A
decree in Conseil d’Etat defines the composition and functionning conditions of
said commissions, subject to the provisions of Articles L411-4 to L411-6.
Article L411-4
(Act n°. 89-1014 of 31 December 1989, Article
17, Official Journal of 3 January 1990 in force on 1 May 1990)
(Act n°. 92-665 of 16 July 1992, Article 16, II,
Official Journal of 17 July 1992 in force on 20 May 1993)
(Act n°. 94-5 of 4 January 1994, Article 38, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
The commission of insurance firms shall be consulted prior to decisions
relating to the licensing of the insurance firms provided for in Articles
L321-1, L321-7, L321-8, L321-9 and L325-1.
The Minister in charge of the Economy and Finance or his representative
appointed for this purpose shall chair the commission of insurance firms.
Article L411-5
(inserted by Act n°. 89-1014 of
The regulation commission shall issue an opinion, on behalf of the national
insurance board, on draft decrees referred to the latter pursuant to Article
L411-2. The Minister in charge of the Economy and Finance or his representative
appointed for this purpose shall chair the regulation commission.
Article L411-6
(inserted by Act n°. 89-1014 of
The consultative insurance commission shall be responsible for studying
problems related to relations between the firms referred to in Article L310-1
and their customers and for proposing all relevant measures in this area, in
particular, by way of opinions or general recommendations.
The consultative insurance commission may act on its own motion at the request
of the majority of its members. It may be consulted by the Minister in charge
of the Economy and Finance and by consumer organisations authorised at the
national level.
At least two thirds of the consultative insurance commission shall be comprised
of representatives of the insurance professions and representatives of the
insured. Based on a decision by the majority of its members, it may appoint
outside members for the requirements of its work.
One of the personalities referred to in the eighth paragraph of Article L411-1
shall chair the consultative insurance commission.
Chapter II : National insurance school
Article L412-1
(Act n°. 89-1014 of 31 December 1989, Article
50, Official Journal of 3 January 1990, in force on 1 July 1990)
(Act n°. 2002-1575 of
I. Expenses of any nature occurring in the running of
the National Insurance School are covered by the means of direct and indirect
contributions to be made by insurance companies, professional organisations
belonging to them as well as federations and national unions of companies,
agents and insurance brokers. The National Conservatory of Arts and Industry
shall receive these contributions on behalf of the National Insurance School.
II. The contributions shall be deductibles from those
sums owed as apprenticeship taxes or as continuing education taxes, in
proportion to the respective share of first-degree course, continuing education
and apprenticeship within the activities of the
III. This article shall be in force as of the
enactment of a ministerial order relating to the extension of additional clause
to the national collective agreement of insurance companies concerning the
financing of the National Insurance School, or, in the absence of such
additional clause, as of
Title II
Guarantee fund
Chapter I: Road and hunting accidents guarantee fund
Section I : Provisions specific to road accidents
occurring in metropolitan
Article L421-1
(transferred by Decree n°. 88-260 of
A guarantee fund has been established to compensate victims of personal injury
as a result of an accident in which a motor vehicle as well as its trailers or
semi-trailers is involved, to the exclusion of railways and tramways running on
dedicated tracks, when the person liable for the loss is unknown or is not
insured, apart from a legal dispensation from compulsory insurance, or when its
insurer is entirely or partly insolvent. The guarantee fund shall pay the
indemnities allocated to the victims or their assigns that cannot be covered in
any other respect, when the accident entitles them to compensation. Payments
made to victims or their assigns that cannot give rise to an action for redress
against the person liable for the injury are not deemed to constitute
compensation in another respect.
In accordance with the terms and within limits defined by a decree in Conseil
d’Etat, the guarantee fund may also cover damage to property as a result of an
accident in which a vehicle defined in the previous paragraph is involved when
the person identified as being liable for the loss is not insured, apart from a
legal dispensation from compulsory insurance, or, when the person liable is
unknown, the driver of the damaged vehicle or any other person sustained
personal injury.
In accordance with the terms provided for in the first paragraph, when the
person liable for the loss is unidentified or is not insured, the guarantee
fund shall also pay the compensations allocated to victims of personal injury
or to their assigns, when said loss entitling them to compensation was caused
accidentally by persons travelling on public roads.
The indemnities must result either from an enforceable
court decision or from a settlement that has been approved by the guarantee
fund.
Article L421-2
(Decree n°. 88-260 of 18 March 1988, Article 3,
Official Journal of 20 March 1988)
(Act n°. 89-1014 of 31 December 1989, Article
48, Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 91-716 of 26 July 1991, Article 1, X,
Official Journal of 27 July 1991 in force on 20 November 1992)
The guarantee fund shall be a given legal personnality. It must group together
all insurance firms covering this risks of public liability ensuing from use of
motor vehicles.
Article L421-3
(transferred by decree n°. 88-260 of
The guarantee fund shall be subrogated in the rights of the creditor of the
compensation against the person liable for the accident or his insurer. It
shall also be entitled to interest calculated at the legal rate in civil
matters and to costs of collection.
When the guarantee fund reaches a settlement with the victim, said settlement
shall be binding on the party liable for the loss, except that the latter shall
be entitled to bring a legal action to contest the amount of the sums claimed
on account of said settlement. Said dispute cannot cause the amount of
indemnities allocated to the victim or his assigns to be called into question.
Article L421-4
(transferred by decree n°. 88-260 of
The guarantee fund shall be funded by the contributions of insurance firms,
insured motorists and persons liable for motoring accidents not covered by
insurance. The various contributions shall be paid and collected in accordance
with the terms and subject to the penalties imposed by the decree in Conseil
d’Etat provided for in Article L421-6.
Article L421-5
(transferred by decree n°. 86-260 of
The guarantee fund may join as a party even before criminal courts and even for
the first time in appeal proceedings in order, in particular, to contest the
amount of the compensation claimed in all proceedings brought between victims
of accidents or their assigns, on the one hand, the persons liable for the
accidents or their insurers, on the other hand. It shall then join the
proceedings in a principal capacity and it may avail of all legal remedies.
Article L421-6
(decree n°. 88-260 of
(Act n°. 89-1014 of 31 December 1989, Article
50, Official Journal of 3 January 1990 in force on 1 July 1990)
A decree in Conseil d’Etat defines the terms of application of Articles L421-1
to L421-5 and in particular the bases and legal methods of determining the
indemnities that may be owed by the guarantee fund, the persons not entitled to
benefit from the fund, the respective or reciprocal rights and obligations of
the guarantee fund, the insurer, the person liable for the accident, the victim
or his assigns, the time limit allowed to exercise said rights or performance
of said obligations, the functionning conditions of the guarantee, conditions
in which the guarantee fund may take legal action, the conditions in which it
may exceptionally be implicated, the measures of control that the Minister in
charge of the Economy and Finance exercises over the entire management of the
fund, the rates and bases of contributions provided for in Article L421-4.
Article L421-7
(decree n°. 88-260 of
(Act n°. 94-5 of 4 January 1994, Article 40,
III, Official Journal of 5 January 1994)
When the person liable for an accident is unable to prove that he has complied
with the obligation to insure established pursuant to Article L211-1, the
victim and the guarantee fund shall be entitled to take advantage of the protective
measures provided for in Articles 48 to 57 of the Code of Civil Procedure.
However, said provisions shall not apply when the public liability insurance
concerns vehicles that are normally parked on the territory of a State referred
to in Article L211-4, with the exception of
Section II : Provisions specific to hunting accidents
occurring in metropolitan
Article L421-8
(decree n°. 88-260 of
(Act n°. 93-1444 of 31 December 1993, Article
20, II, Official Journal of 5 January 1994)
The guarantee fund established pursuant to Article L421-1 shall compensate
bodily injury caused by all hunting or destruction of vermin on the parts of
the territory where the insurance established pursuant to Article L223-13 of
the Rural Code is compulsory even if said hunting or destruction is not covered
by the obligation to insure from the moment said acts were carried out by an
unidentified or uninsured person or by a person whose insurer is entirely or
partly insolvent.
Expenses incurred pursuant to the previous paragraph shall be covered by
contributions from insurance firms, insured hunters and persons liable for
accidental hunting injuries not covered by insurance as well as by surcharge of
50 per cent of fines, including those that a pardon has substituted for a
prison sentence handed down for hunting without a permit or in a place, a time
or by means of prohibited devices.
A decree in Conseil d’Etat defines the terms of application of this Article.
Section
V : Financial scheme
of the guarantee fund
Article L421-8-1
(transferred by decree n°. 88-260 of 18 March
1988, Article 3, Official Journal of 20 March 1988)
The time limits provided for in Article 3 of Act n°. 75-619 of 11 July 1975
relating to the legal rate of interest shall run against the guarantee fund
only as from the date it receives evidence to justify its intervention.
Section VI : Role of the guarantee
fund in the event of withdrawal of licence of a motor insurance firm
Article L421-9
(decree n°. 88-260 of 18 March 1988, Article 3,
Official Journal of 20 March 1988)
(Act n°. 89-1014 of 31 December 1989, Article
48, Official Journal of 3 January 1990 in force on 1 July 1990)
For the application of Article L326-17, when the guarantee fund settles the
losses referred to in Article L211-11 on behalf of the firm in liquidation, it
may not bring any action against the insured or policyholders of contracts to
recover compensations that it paid pursuant to Article L326-17, but it shall be
subrogated up to the amount of said compensations in the rights of the victims
in the liquidation of the insurance firm whose licence was withdrawn.
Section VIII : Provisions specific to French
overseas territories and to the collectivité territoriale of Mayotte
Article L421-10
(decree n°. 88-260 of 18 March 1988, Article 3,
Official Journal of 20 March 1988)
(Order n°. 92-1067 of 1 October 1992, Article 3,
Official Journal of 3 October 1992)
The provisions of Articles L421-1 to L421-6 and L421-9 shall apply to New
Caledonia, French Polynesia and Saint Pierre-et-Micquelon.
Fines imposed on any one who knowingly breached the obligation to insure
established under local regulations, including fines that a pardon has
substituted for a prison sentence, shall be increased by 50% when collected in
favour of the guarantee fund.
The aforementioned provisions shall take effect in the territory of Wallis and
Fatuna on the first day of the calendar quarter following publication of the
order enforcing the deliberation enacting an obligation to insure public
liability in respect of motor traffic.
A decree in Conseil d’Etat defines the provisions for application of this
Article.
Nota bene: Article 75 of Act 2001-616 of 11 July 2001:
In all laws and regulations in force in Mayotte, reference to the “collectivité
territoriale of Mayotte” shall be replaced by reference to “Mayotte” and
reference to the “collectivité territoriale” shall be replaced by
reference to the “collectivité départementale ”.
Article L421-10-1
(inserted by order n°. 92-1067 of 1 October
1992, Article 3, Official Journal of 3 October 1992)
The provisions of Articles L421-1 to L421-7, L421-8-1, L421-9, L421-11 to
L421-14 shall apply in the collectivité territoriale of Mayotte.
Nota bene: Article 75 of Act 2001-616 of 11 July 2001:
In all laws and regulations in force in Mayotte, reference to the “collectivité
territoriale of Mayotte” shall be replaced by reference to “Mayotte” and
reference to the “collectivité territoriale” shall be replaced by
reference to the “collectivité départementale ”.
Section IX : Special provisions applicable to car
accidents occurring abroad
Article L421-11
(decree n°. 88-260 of 18 March 1988, Article 3,
Official Journal of 20 March 1988)
(Act n°. 94-5 of 4 January 1994, Article 40, IV,
VI, Official Journal of 5 January 1994)
The guarantee fund shall indemnify the victims of accidents caused by vehicles
that must be covered by compulsory public liability insurance and which are
normally parked in metropolitan France or in Monaco when said accidents occur
on the territory of a State referred to in Article L211-4, with the exception
of France and Monaco.
The intervention of the guarantee fund shall be subject to the following
conditions:
The person liable for the loss must not have the compulsory public liability
insurance cover.
Victims shall be indemnified on the terms provided for by the national law of
the State on whose territory the accident occurred.
Article L421-12
(decree n°. 88-260 of 18 March 1988, Article 3,
Official Journal of 20 March 1988)
(Act n°. 94-5 of 4 January 1994, Article 40,
Official Journal of 5 January 1994)
The guarantee fund shall also indemnify victims when the accident caused by a
vehicle referred to in Article L421-11 occurs during the journey directly
between two territories where the treaty establishing the European Economic
Community is applicable.
In this case, the intervention of the fund shall be
subject to the conditions provided for in Article L421-11 as well as the
following conditions:
-
there must be no national insurance office for the territory crossed,
-
the victims must be nationals of a State referred to in Article L211-4.
In this case, the victims shall be indemnified in accordance with the terms
provided for under the national law on compulsory insurance in force in the
State where the vehicle that caused the accident is normally parked.
Article L421-13
(transferred by decree n°. 88-260 of 18 March
1988, Article 3, Official Journal of 20 March 1988)
When the guarantee fund intervenes pursuant to Articles L421-11 and L421-12, it
shall be subrogated in the rights of the creditor of the compensation against
the person liable for the accident.
Article L421-14
(transferred by decree n°. 88-260 of 18 March
1988, Article 3, Official Journal of 20 March 1988)
A decree in Conseil d’Etat defines the terms of application of this section, in
particular, the terms upon which the coincidence of conditions that give rise
to the intervention of the guarantee fund is recorded, the arrangements for
paying the compensation to victims through the intermediary of national
insurance offices as well as the terms and conditions in which the guarantee
fund shall exercise the right of subrogation provided for in Article L421-13.
A decree in Conseil d’Etat defines the provisions for the adaptation of this
section in overseas départments.
Article L421-15
(inserted by Act n°. 91-716 of 26 July 1991,
Article 1, XI, Official Journal of 27 July 1991 in force on 20 November 1992)
All insurance firms covering the risks of public liability ensuing from the use
of motor vehicles in France shall join the relevant national insurance office
in France.
Chapter
II : Guarantee fund
of victims of terrorist attacks and other offences
Article L422-1
(Act n°. 90-589 of 6 July 1990, Article 13,
Article 14, Article 18, Official Journal of 11 July 1990 in force on 1 January
1991)
For application of Article L126-1, full compensation for losses sustained as a
result of a personal injury shall be provided through the intermediary of the
guarantee fund of victims of terrorist attacks and other offences.
Said fund, which is a legal entity, shall be funded by a drawdown on property
insurance contracts in accordance with the terms defined by decree in Conseil
d’Etat, which also defines the terms applicable to its establishment and its
functionning rules.
It shall be subrogated in the rights of the victim against the person liable
for the loss.
Article L422-2
(Act n°. 90-589 of 6 July 1990, Article 13,
Article 18, Official Journal of 11 July 1990 in force on 1 January 1991)
The guarantee fund, within one month as from the request made to it, must make
one or more provisional payments to the victim who sustained personal injury
or, in the event of the victim’s death, to his assigns, without prejudice to
the right for said victims to refer a case to the judge for urgent
applications.
The guarantee fund must make an offer of compensation to all victims within
three months as from the date on which the victim provides it with evidence of
its losses. Said provision shall also apply in the event of an increase of the
loss.
Articles L211-15 to L211-18 shall apply to said offers of compensation. The
victim may be entitled to damages in the event of offers made late or of
clearly inadequate offers.
Article L422-3
(Act n°. 90-589 of 6 July 1990, Article 13,
Article 18, Official Journal of 11 July 1990 in force on 1 January 1991)
In the event of dispute, if the events that resulted in the loss have given
rise to criminal proceedings, the civil court shall not be obligated to stay
proceedings until a final decision by the criminal court. Victims of losses
shall be entitled to bring legal action against the guarantee fund within the
time limit provided for in Article 2270-1 of the Civil Code.
Article L422-4
(inserted by Act n°. 90-589 of 6 July 1990,
Article 13, Article 15, Article 18, Official Journal of 11 July 1990 in force
on 1 January 1991)
Compensations awarded pursuant to Articles 706-3 to 706-14 of the Code of Penal
Procedure by the commission established under Article 706-4 of said code shall
be paid by the guarantee fund of victims of terrorist attacks and other
offences.
Article L422-5
(inserted by Act n°. 92-665 of 16 July 1992,
Article 36, Official Journal of 17 July 1992)
The guarantee fund may lodge an appeal against decisions handed down by the
commission established under Article 706-4 of the Code of Criminal Procedure.
Chapter III : Guarantee fund of insured against
the default of life insurance companies
Article L423-1
(inserted by Act n°. 99-532 of 25 June 1999,
Article 68, Official Journal of 29 June 1999)
Firms licensed to operate in France subject to State control pursuant to
Article L310-1, apart from those authorised to carry out the transactions
mentioned in paragraph 3 of the same Article, shall join a guarantee fund to
protect the rights of their insured and policyholders, members and
beneficiaries of their life insurance and capitalisation contracts covering
bodily injury or provided for in Article L441-1.
Insurance contracts, capitalisation bonds or contracts and contracts referred
to in Article L441-1 underwritten by the following persons shall be precluded
from any compensation by the guarantee fund:
a)
directors, corporate officers, partners with personal liability who directly or
indirectly own at least 5% of the firm’s capital, statutory auditors and
insured having the same capacities in other companies of the group,
b)
third party acting on behalf of the insured, policyholders of contracts,
members and beneficiaries of services referred to in a above,
c)
insurance firms governed by this Code, provident institutions governed by the
French Social Security Code or the Rural Code as well as mutual insurance companies
governed by the French Mutual Insurance Code, save for contracts underwritten
in favour of their employees or their customers,
d)
companies within the perimeter of consolidation defined under Article 357-1 of
Act n°. 66-537 of 24 July 1966 relating to business corporations, which is
applicable to the insurance firm, save for contracts underwritten in favour of
their employees or their customers,
e)
credit institutions and persons referred to in Article 8 of Act n°. 84-46 of 24
January 1984 relating to the business and supervision of credit institutions,
save for contracts underwritten on behalf of a borrower, a customer or their
employees
f)
unit trusts
g)
pension funds, save for contracts underwritten on behalf of employees or their
members’ pensions.
Article L423-2
(inserted by Act n°. 99-532 of 25 June 1999,
Article 38, Official Journal of 29 June 1999)
I.- When at the time of the procedure provided for in Article L310-18, the insurance
regulatory commission considers that one of the firms referred to in Article
L423-1 is no longer able to meet its undertakings to the persons referred to in
the same Article, it shall decide to call on the guarantee fund after it has
consulted the chairman of its management board in writing.
If he contests the commission’s decision, the chairman of the management board
may, within two weeks or a fortnight as from the decision, refer the matter to
the Minister for Economy. The latter may then in the interest of the insured,
policyholders, members and beneficiaries of the contracts and within two weeks
or a fortnight request the commission to deliberate again after he has obtained
the written opinion of an arbitration board whose structure is defined by
decree in Conseil d’Etat.
The commission’s decision to call on the guarantee fund shall be immediately
notified to the firm in question. In the event of implementation of the
procedure described in the previous paragraph, only the new deliberation of the
commission shall be notified to the firm.
II.- As from said notice, the insurance regulatory commission shall launch
tenders in order to transfer said firm’s portfolio of contracts in accordance
with the terms provided for in Article L310-18. Said tenders shall be notified
to the guarantee fund.
III.- The commission shall accept the offer(s) that it considers best protects
the interests of the insured, policyholders of the contracts, members and
beneficiaries of benefits having regard, in particular, to the solvency of the
applicant firms and the rates of reduction of undertakings that they propose.
The commission’s decision to transfer the portfolio of contracts to the firm(s)
that it appointed and which mentions, where applicable, the rate of reduction
for each type of contracts transferred shall be published in the Official
Journal. Said decision shall release the assignor firm from any undertakings
with regard to the insured, policyholders of the contracts, members and
beneficiaries of benefits whose contracts have been transferred pursuant to the
provisions of this Article. When the procedure to transfer the portfolio has
not produced results, the insurance regulatory commission shall inform the
guarantee fund of this act.
IV.- Separate accounts shall be kept of the transferred undertakings and
assets. Any profits owed due to an underestimation of the assets or an
overestimation of undertakings in the transfer balance sheet shall revert to
the insured, policyholders of the contracts, members and beneficiaries of
benefits whose contracts have been transferred.
V.- The transfer of all or part of the portfolio or the recorded failure of the
transfer procedure shall entail withdrawal by the insurance regulatory
commission of all of the defaulting firm’s administrative licences. The
guarantee fund shall carry out the acts necessary to manage the part of the
portfolio of contracts that has not been transferred until the liquidator has
been appointed. The provisional directors appointed, where applicable, by the
insurance regulatory commission may carry out such acts of management on behalf
of the guarantee fund.
Article L423-3
(inserted by Act n°. 99-532 of 25 June 1999, Article
68, Official Journal of 29 June 1999)
In the event the portfolio is transferred, any part of the rights of the
insured, policyholders of the contracts, members and beneficiaries of benefits
not covered by the assignee shall be guaranteed by a guarantee fund payment to
the assignee within the limits provided by decree in Conseil d’Etat. When the
procedure to transfer the portfolio has not produced results, the rights of the
insured, beneficiaries of the contracts, members and beneficiaries of benefits
shall be guaranteed by a guarantee fund payment within the limits provided by
decree in Conseil d’Etat. The guarantee fund shall have a right of access to
documentary evidence relating to the calculation of its contribution, the
amount of which shall be drawn up by the insurance regulatory commission.
Article L423-4
(inserted by Act n°. 99-532 of 25 June 1999,
Article 68, Official Journal of 29 June 1999)
The guarantee fund is a private legal entity. It shall be managed by a
management board acting under the supervision of a supervisory board. The
members of the management board and of the supervisory board must satisfy the
conditions set forth in Article L322-2.
The supervisory board shall exercise permanent supervision over the management
of the guarantee fund. It shall draw up the statutes and rules and regulations
which shall be approved by order of the Minister in charge of the Economy. It
shall appoint a chairman from amongst its members.
The supervisory board shall approve the accounts and appoint the statutory
auditors. At the end of each financial year, a copy of the approved accounts
shall be submitted to the Minister in charge of the Economy. The guarantee fund
shall be subject to the control of the inspectorate general of finance.
The supervisory board shall be comprised of twelve members appointed by the
member firms; each member shall represent one or more of said firms. The
composition of the
supervisory board determined in the statutes of the
guarantee fund must be representative of the various categories of insurance
firms governed by this Code.
The decisions of the supervisory board shall be taken by a simple
majority. Each of the members of the supervisory board shall have a
number of votes commensurate with its total financial contribution to the
guarantee fund and with that of the firms that appointed it as their
representative. In the event of a tie in voting, the chairman shall have the
casting vote.
The management board shall be comprised of three members appointed by the
supervisory board which shall appoint a chairman from amongst them. The members
of the management board may not simultaneously discharge duties within firms
that are members of the guarantee fund or be paid by one of them. Its chairman
may discharge his duties only after approval by the Minister for Economy.
The Minister for Economy or his representative as well as the chairman of the
insurance regulatory commission or his representative may, upon their request,
be heard by the supervisory board and management board.
The insurance regulatory commission shall hear the chairman of the guarantee
fund in respect of any question that concerns an insurance firm in respect of
which it plans to implement the provisions of this chapter.
The chairman of the management board shall also be heard, upon his request, by
the insurance regulatory commission.
Article L423-5
(inserted by Act n°. 99-532 of 25 June 1999, Article
68, Official Journal of 29 June 1999)
The guarantee fund shall be subrogated in the rights of the insured,
policyholders of the contracts, members and beneficiaries of benefits up to the
amount of sums that it paid.
The guarantee fund shall also be subrogated within the same limits in the
rights of the defaulting firm up to the sums owed by virtue of the performance
of valid reinsurance treaties.
The guarantee fund may bring any action for damages against the de jure or de
facto corporate officers of the insurance firm whose default entailed its
intervention in order to obtain repayment of all or part of the sums that it
paid. It shall inform the insurance regulatory commission thereof.
Article L423-6
(inserted by Act n°. 99-532 of 25 June 1999,
Article 68, Official Journal of 29 June 1999)
Members of the management board and the supervisory board of the guarantee fund
as well as any person who, by virtue of his duties, has access to documents and
information in the possession of the guarantee fund shall be bound by
professional secrecy in accordance with the terms and under the penalties
provided for in Article 226-13 of the Penal Code. Said secrecy shall not be
binding on the judicial authority acting in the scope of criminal proceedings
or civil courts ruling on an appeal lodged against a decision by the guarantee
fund, or the insurance regulatory commission.
Article L423-7
(inserted by Act n°. 99-532 of 25 June 1999,
Article 68, Official Journal of 29 June 1999)
Member institutions of the guarantee fund shall provide the guarantee fund with
the financial resources that it needs to carry out its assignments in
accordance with the terms defined by decree in Conseil d’Etat. The guarantee
fund may also issue non marketable, registered insurance certificates which the
member firms underwrite when they join the fund.
When the losses sustained by the guarantee fund cannot
be covered by contributions already called, the insurance certificates referred
to in the previous paragraph may no longer be remunerated. The nominal of each
of said certificates shall then be reduced in the proportion necessary to
absorb the losses. Said insurance certificates shall not be repayable.
The guarantee fund may borrow from its members. For this purpose, it may create
or request its members to create on its behalf the guarantees required by
contract.
Lack of membership or absence of payment of the called contribution to the
guarantee fund shall be liable to the penalties provided for under Article
L310-18 and penalties for late payment paid directly to the guarantee fund in
accordance with the terms defined by its rules and regulations.
Article L423-8
(Act n°. 99-532 of 25 June 1999, Article 68,
Official Journal of 29 June 1999)
(order N°.2001-350 of 19 April 2001, Article 6,
XXVI, Official Journal of 22 April 2001)
A decree in Conseil d’Etat specifies:
-
the terms and limits of compensation per insured, policyholder, member or
beneficiary, the compensation procedures and time limits as well as the rules
concerning information to be provided to customers,
-
the methods of defining the rates of reduction in the event of the transfer of
the defaulting firm’s portfolio,
-
the features of insurance certificates as well as the terms of their
remuneration,
-
the total amount of annual contributions owed by the member firms,
-
the terms in which a part of said contributions cannot be transferred to the
guarantee fund upon creation of the relevant guarantees,
-
the methods of allocating said annual contributions based on the amount of
technical reserves, weighted by contributions already paid as well as the
indicators of the financial situation of each of the members and in particular
their solvency, reflecting the objective risks that the fund incurs by reason
of the member,
-
the terms and conditions applicable to the appointment of members of the
supervisory board as well as their term of office.
Said decree may be
amended only after consulting the chairman of the guarantee fund’s management
board.
Title III
Special insurance institutions
Chapter I: The central reinsurance fund
Section II: Transactions carried out with the
guarantee of the State
Paragraph II : Extraordinary and nuclear risks
Article L431-4
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
(Act n°. 89-1014 of 31 December 1989, Article
48, Official Journal of 3 January 1990 in force on 1 July 1990)
The central reinsurance fund, acting with the guarantee of the State, shall be
empowered to underwrite transactions to insure or reinsure risks as a result of
extraordinary events such as foreign or civil states of war, offences against
public policy, civil commotion or industrial disputes when said risks arise
from the use of any kind means of transportation or relate to property in
transit or stocked.
Article L431-5
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
The central reinsurance fund, acting with the guarantee of the State, shall
grant operators of ships and nuclear plants the covers in respect of which
intervention of the State is provided for pursuant to Act n°. 65-956 of 12
November 1965 and Act n°. 68-943 of 30 October 1968.
Article L431-6
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
A decree in Conseil d’Etat defines the terms of application of Articles L431-4
and L431-5, in particular, the terms in which treaties or contracts shall be
drawn up and the rates set for the transactions referred to in said Articles.
Article L431-7
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
A separate account opened in the fund’s records shall record all of the
insurance and reinsurance transactions referred to in Articles L431-4 and
L431-5.
Paragraph II : Risks of natural disasters
Article L431-9
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
(Act n°. 90-509 of 25 June 1990, Article 2,
Official Journal of 27 June 1990 in force on 1 August 1990)
The central reinsurance fund shall be empowered to underwrite transactions to
reinsure risks as a result of national disasters, with the guarantee of the
State, in accordance with the terms defined by decree in Conseil d’Etat.
Paragraph IV : Risks of terrorist attacks
Article L431-10
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
The central reinsurance fund shall be empowered to underwrite transactions to
reinsure risks as a result of bombing or terrorist attacks, with the guarantee
of the State.
Section III: Management transactions
Paragraph I : National guarantee fund for agricultural disasters
Article L431-11
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
The central reinsurance fund shall be responsible for the accounting and
financial management of the National guarantee fund for agricultural disasters
referred to in Article L442-1 in a separate account from those which record the
other transactions underwritten by said establishment.
The central reinsurance fund shall be reimbursed for costs incurred in managing
the fund in accordance with the terms defined by decree in Conseil
d’Etat.
Paragraph II: National guarantee fund for agricultural disasters
in overseas départments
Article L431-12
(decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
The central reinsurance fund shall be responsible for the accounting and
financial management of the National guarantee fund for agricultural disasters
in overseas départments referred to in Article L442-2 in a separate
account from those which record the other transactions underwritten by said
establishment.
The central reinsurance fund shall be reimbursed for costs incurred in managing
the fund in accordance with the terms defined by decree in Conseil d’Etat.
Paragraph
IV : Compensation fund
of construction risks insurance
Article L431-14
(Decree n°. 85-863 of 2 August 1985, Article 4,
Official Journal of 15 August 1985)
(Act n°. 85-1404 of 30 December 1985, Article
26, I, II, Official Journal of 31 December 1985)
(Act n°. 89-936 of 29 December 1989, Article 42,
Official Journal of 30 December 1989)
(Act n°. 89-1014 of 31 December 1989, Article
47, Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 2002-1575 of 30 December 2002, Finance
2003, Article 124 I, Official Journal of 31 December 2002)
A compensation fund of construction risks insurance
has been established in order to contribute, within the framework of agreements
that may be entered into for said purpose with the insurance firms, to the
compensation of losses affecting buildings the sites of which were opened prior
to a date set by decree in Conseil d’Etat and from which date the
relevant premiums shall no longer be collected.
The fund may enter agreements with insurance firms in
order to set off the financial effects of the increase in construction costs on
their ten year insurance cover.
The fund shall make a financial contribution to
actions to prevent disorders and to promote construction quality.
The central reinsurance fund shall be responsible for
managing the fund.
The fund shall be funded by a contribution by the
insured based on insurance premiums or contributions issued as from 1 January
1986 relating to damage to the works insurance covers as well as ten year
insurance covers underwritten by any one, whether or not tied to the owner by a
works contract, to cover its liability in relation to the building work.
Contracts covering sites opened as from 1 January 1986
that include covers other than those referred to in the previous paragraph must
identify the part of the premium or contribution for the latter covers.
The rate of the contribution is 4% for insurance
premiums or contributions paid by craft undertakings and 12.5% for other
insurance premiums or contributions.
For a period from 1 January 1991 to 31 December 1996,
the fund was funded by an additional contribution owed by any one who
underwrote a ten year liability insurance contract to cover its warranty in
relation to building work.
The additional contribution shall be based on the
turnover or amount of fees, exclusive of tax, corresponding to building work or
services performed in France that persons liable must declare to their
liability insurer.
The rate of the additional contribution is equal to
0.4% per cent.
The contribution and the additional contribution
called upon the annual issue of the premium shall be collected according to the
same rules, subject to the same guarantees and same penalties as the tax on
insurance agreements provided for pursuant to Articles 991 et seq. of
the General Tax Code.
Upon the annual issue of the premium or contribution,
the additional contribution shall be called on the basis of the turnover or
amount of fees of the last year known; it shall be adjusted subsequently upon
the call of the premium or contribution after the turnover or amount of fees
actually made or collected during the year in question has been recorded.
The fund’s resources may also derive from loans.
A decree in Conseil d’Etat defines the terms of
application of this article.
N.B. The rates of 4% and 12,5% are applicable to
premiums and, in case of instalment payments, to the instalments of the
premiums, payable beginning the 1st of January 2003.
Chapter II: French insurance company for foreign
trade known as “Coface”
Section
I : General
provisions
Article L432-1
The Government shall be authorised, by decree in Conseil d’Etat issued after
consulting the national credit board, to take all measures to improve credit
and insurance credit terms necessary for the expansion of France’s foreign
trade. In particular, for this purpose, it may cause the establishment of new
institutions specialised in export or import credit and propose the amendment
of the statutes or reorganisation of existing institutions and any
administrative institutions or institutions subsidised by the State whose objects
are export or import credit insurance to Parliament.
Article L432-2
(Amending Finance Act n°. 97-1239 of 29 December
1997, Article 37, I, Official Journal of 30 December 1997)
The guarantee of the State may be granted in whole or in part:
1 to the French insurance company for foreign trade for its transactions to
insure commercial, political, monetary risks, disasters and certain
extraordinary risks as well as for transactions to manage related rights and
obligations.
2 to exporters for transactions provided for in Article 53 of Act n°. 48-1516
of 26 September 1948, determining the valuation of ways and means of the
general budget for the 1948 financial year and relating to various financial provisions.
The guarantee of the State may also be granted to exporters to cover, in
accordance with the terms defined in contracts that the Minister in charge of
the Economy and Finance enters into with them, a part of the losses that may
result from expenses incurred to canvass certain foreign markets, advertise and
build up stocks with a view of developing exports of said markets.
Article L432-3
(Amending Finance Act n°. 97-1239 of 29 December
1997, Article 37, II, Official Journal of 30 December 1997)
The guarantee of the State shall be granted after consulting the foreign trade
guarantees and credit commission, established by Article 15 of Act n°. 49-874
of 5 July 1949, apart from that relating to management transactions referred to
in paragraph 1 of Article L432-2 in respect of which it is granted by order of
the Minister for Economy.
Article L432-4
(Amending Finance Act n°. 97-1239 of 29 December
1997, Article 37, III, Official Journal of 30 December 1997)
The French insurance company for foreign trade shall draw up separate
accounting records for transactions that it carries out with the guarantee of
the State pursuant to Article L432-2 of this Code. An agreement between the
State and the French insurance company for foreign trade shall specify
the terms and conditions in which said records shall be kept and the terms in
which they shall be audited and certified by one or more statutory auditors.
Subject to the rights of holders of receivables arising from transactions
carried out with the guarantee of the State, no creditor of the French
insurance company for foreign trade other than the State may take
advantage of any right to the property and rights ensuing from the records
drawn up pursuant to the previous paragraph even on the basis of Act n°. 85-98
of 25 January 1985 relating to the judicial rehabilitation and liquidation of
firms, Act n°. 84-148 of 1 March 1984 relating to the prevention and friendly
settlement of difficulties affecting firms or Articles L310-25 and L326-2 to
L327-6 of this Code.
Title IV
Special insurance schemes
Chapter I: Provisions relating to certain
group benefits and insurance transactions
Section I : General provisions
Article L441-1
(Act n°. 94-5 of 4 January 1994, Article 29, I,
Official Journal of 5 January 1994 in force on 1 July 1994)
Life insurance firms shall be authorised to directly or indirectly, inter alia,
by the collection of premiums or contributions, by the formation of capital
payable on survival to a stipulated age only, by the formation and service of
pension or annuities, in any transaction to acquire or enjoy rights on survival
to a stipulated age only in which a relationship is established between the
revaluation of premiums and those of the rights on survival to a stipulated age
only previously earned and the assets and rights of which shall be isolated
from those of the other insured and subject to the terms provided for in this
chapter.
Article L441-4
(Act n°. 94-5 of 4 January 1994, Article 29,
III, Official Journal of 5 January 1994 in force on 1 July 1994)
Any contracts or agreements in violation of the provisions of this chapter and
the decrees in Conseil d’Etat entered into pursuant to Articles L441-7 and
L441-10 shall be null and void ipso jure.
Article L441-5
No compensation may be claimed from the State by
reason of the intervention of order n°. 59-75 of 7 January 1959 relating to
certain collective provident transactions and insurance transactions codified
in this chapter.
Article L441-6
(Act n°. 92-1336 of 16 December 1992, Article
322, Article 329, Official Journal of 23 December 1992 in force on 1 March
1994)
Any person who, even in an intermediary capacity, proposes contracts or
agreements in violation of the provisions of this chapter or cause such
contracts or agreements to be underwritten shall be punished by a fine of FRF
25,000 and a six month prison sentence or one of said two penalties only.
Article L441-7
(Act n°. 94-5 of 4 January 1994, Article 29, IV,
Official Journal of 5 January 1994 in force on 1 July 1994)
A decree in Conseil d’Etat determines the technical rules and terms of
application of this chapter.
Section II : Technical and accounting rules
Article L441-8
(Act n°. 94-5 of 4 January 1994, Article 29, V,
Official Journal of 5 January 1994 in force on 1 July 1994)
When an insurance firm intends underwriting transactions governed by Article
L441-1, it must keep entirely separate accounts for said transactions.
The assets corresponding to said transactions shall be allocated to pay
benefits, whether settled or not. They shall be encumbered for this purpose by:
a)
a legal mortgage on real property which ranks as at the date of its
registration,
b)
a lien on movables and a lien on immovables that shall take precedence over the
liens respectively provided for in the first and second paragraphs of Article
L327-2.
Section
IV : Transitional provisions
Article L441-10
(Act n°. 94-5 of 4 January 1994, Article 29, VI,
Official Journal of 5 January 1994 in force on 1 July 1994)
Any existing agreements that underwrite or provide for transactions governed by
Article L441-1 shall be brought into compliance with the provisions of this
chapter within the time limit imposed by decree in Conseil d’Etat. Where
applicable, said decree defines the terms applicable to the adaptation of
earlier contracts and agreements.
Chapter II: Other special insurance schemes
Section I : Scheme for the compensation
of agricultural disasters
Article L442-1
As it ensues from Article 1 of Act n°. 64-706 of 10 July 1964, the National
guarantee fund for agricultural disasters shall compensate the material damage
caused to farms by disasters such as they are defined by said Act. Said fund
shall also further the development of insurance against agricultural risks.
Article L442-2
As it ensues from Article 1 of Act n°. 74-1170 of 31 December 1974, the
guarantee fund for agricultural disasters in overseas départments shall
compensate material damage caused to farms by disasters as they are defined
under said Act. Said fund shall play a role in the development of insurance
against agricultural risks.
Section
II : Compulsory health,
disability and maternity insurance scheme for farmers and non wage earning
members of their families (French acronym AMEXA)
Article L442-3
As it ensues from Article 1106-9 of the Rural Code, persons subject to the
compulsory health, disability and maternity insurance scheme for farmers and
non wage earning members of their families may be insured by the firms referred
to in Article L310-1 of this Code when they act in accordance with the relevant
terms of the Rural Code.
Section III : Insurance of farmers
against private life accidents, accidents at work and occupational diseases
Article L442-4
As it ensues from Article 1234-8 of the Rural Code, persons subject to the
compulsory insurance scheme of farmers against private life, accidents at work
and occupational diseases may be insured by the firms referred to in Article
L310-1 of this Code when they act in accordance with the relevant terms of the
Rural Code.
Article L442-5
As it ensues from Article 1234-20 of the Rural Code, persons entitled to
underwrite additional insurance against private life accidents, accidents at
work and occupational diseases may do so with the firms referred to in Article
L310-1 of this Code when they act in accordance with the relevant terms of the
Rural Code.
Section IV : Compulsory health, disability
and maternity insurance scheme of the non wage earning professionals in the non
agricultural professions
Article L442-6
As it ensues from Article 14 of Act n°. 66-509 of 12 July 1966, as amended, the
firms referred to in Article L310-1 may be empowered to collect contributions
and service benefits on behalf of the regional mutual health and maternity
insurance funds of non wage earning workers of the non agricultural
professions.
Book V
General agents, brokers and other intermediaries
Of insurance and capitalisation
Title I
Presentation of transactions
Chapter I : Main
principles
Article L511-1
A
decree in Conseil d’Etat outlines the presentation of a transaction
underwritten by the firms referred to in Article L310-1 and determines the
persons empowered to make such presentation.
When such presentation is made by a person thus empowered, the employer or
principal shall be legally liable in accordance with the terms of Article 1384
of the Civil Code for damage caused by the fault, carelessness or negligence of
its employees or agents acting in said capacity, who, for application of this
Article, shall be deemed to be employees, notwithstanding any agreement to the
contrary.
Article L511-2
(Act n°. 89-1014 of 31 December 1989, Article
41, Official Journal of 3 January 1990 in force on 1 July 1990)
Persons convicted of one of the offences referred to in paragraphs 1, 2 and 3
of Article L322-2 or persons concerned by one of the measures provided for in
paragraphs 4 and 5 of the same Article may not carry on the occupation of
general agent or insurance or reinsurance broker.
The convictions and measures referred to in the previous paragraph shall entail
a prohibition on presentation of insurance or reinsurance transactions by
agents and employees of firms, general agents, brokers and brokerage firms.
The courts may also impose said prohibitions on any person convicted of
violation of insurance law or regulations.
Article L511-3
(Act n°. 89-1014 of 31 December 1989, Article
56, Official Journal of 3 January 1990 in force on 1 July 1990)
The provisions of this chapter shall apply in French overseas territories and
in the collectivité territoriale of Mayotte.
Nota bene: Article 75 of Act 2001-616 of 11 July 2001:
In all laws and regulations in force in Mayotte, reference to the “collectivité
territoriale of Mayotte” shall be replaced by reference to “Mayotte” and
reference to the “collectivité territoriale” shall be replaced by
reference to the “collectivité départementale ”.
Book IV
General agents, brokers and other intermediaries
of insurance and capitalisation
Title I
Presentation of transactions
Chapter IV: Control of terms applicable to
presentation
Section IV : Miscellaneous provisions and
penalties
Article L514
(inserted by Act N° 99-532 of 21 June 1999 art.
43 II Official Journal of 29 January 1999)
The underwriting associations, that benefit from derogation to the rules of
presentation of insurance transactions but that carry out presentation of
insurance products, are liable to declare to the Insurance Supervisory
Commission their activity and the type of products they present. Likewise, they
shall inform the latter about any modification in the nature of their activity
as well as the cessation of their activity.
Book V
General agents, brokers and other intermediaries
of insurance and capitalisation
Title I
Presentation of transactions
Chapter IV: Control of the terms applicable to
presentation
Section IV : Miscellaneous provisions and penalties
Article L514-1
(Act n°. 92-1336 of 16 December 1992, Article
322, Official Journal of 23 December 1992 in force on 1 March 1994)
Violation of the provisions of Article L511-2 shall be punished by a two year
prison sentence and a fine of FRF 40,000 or one of said two penalties only.
Article L514-2
(Act n°. 81-5 of 7 January 1981, Article 36, IV,
Official Journal of 8 January 1981)
(Act n°. 92-1336 of 16 December 1992, Article
322, Article 329, Official Journal of 23 December 1992 in force on 1 March
1994)
(Act n°. 94-5 of 4 January 1994, Article 38, II,
Official Journal of 5 January 1994 in force on 1 July 1994)
The act of presenting in view of underwriting or cause the underwriting of
contracts on behalf of a firm subject State control pursuant to Article L310-1
and not empowered to underwrite the relevant transactions in France shall be
punishable by a fine of FRF 200,000 and in the event of a repeation offence, a
fine of FRF 100,000 and a six month prison sentence.
The fine provided for in this Article shall be imposed for each of the
contracts proposed or underwritten; the total of the fines incurred may not
exceed FRF 40,000 and FRF 20,000 in the event of a repeat offence.
Article L514-4
(Act n°. 89-1014 of 31 December 1989, Article
43, Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 92-1336 of 16 December 1992, Article
322, Official Journal of 23 December 1992 in force on 1 March 1994)
Violation of the provisions of Article L530-1 and L530-2 shall be punished by a
one year prison sentence and a fine of FRF 60,000 or one of said two penalties
only.
Title II
Provisions specific to general insurance agents
Sole chapter
Article L520-1
The open-ended contract entered into between insurance
firms and their general agents may always be terminated by decision of one of
the contracting parties.
Nevertheless, the termination of the contract by the will of one of the
contracting parties only may give rise to damages, which shall be set in
accordance with Article 1780 of the Civil Code.
The parties may not waive in advance any right to claim damages pursuant to the
above provisions.
Article L520-2
(Act n°. 90-1260 of 31 December 1990, Article 5,
Official Journal of 5 January 1991)
The status of general insurance agents and riders thereto shall be approved by
decree, after tit has been negotiated and drawn up by the concerned
professional organisations.
Title III
Provisions specific to brokers and insurance
brokerage companies
Sole chapter
Article L530-1
(inserted by Act n°. 89-1014 of 31 December
1989, Article 42, Official Journal of 3 January 1990 in force on 1 July 1990)
All insurance brokers or brokerage companies to which funds are entrusted, even
occasionally, with a view to being paid to the firms referred to in Article
L310-1 or to the insured must at all times prove that they have a special
financial guarantee to guarantee repayment of said funds to the insured.
Said guarantee may ensue only from a surety bond entered into by a credit
institution authorised for this purpose or an insurance firm governed by the
Insurance Code.
The obligation provided for in this Article shall not apply to payments in
respect of which an insurance firm has granted a broker a written authorisation
expressly collect premiums and subsidiarily to settle losses.
Article L530-2
(inserted by Act n°. 89-1014 of 31 December
1989, Article 42, Official Journal of 3 January 1990 in force on 1 July 1990)
All insurance brokers or brokerage companies must be able at all times to prove
the existence of an insurance contract covering the pecuniary consequences of
their professional public liability.
Article L530-3
(inserted by Act n°. 89-1014 of 31 December
1989, Article 42, Official Journal of 3 January 1990 in force on 1 July 1990)
Persons who are not insured but who made payments for contracts not governed by
the provisions of Article L351-4 to a broker or a brokerage company on the list
referred to in Article L530-2-2 and which are covered by an apparent
undertaking by one of the firms referred to in Article L310-1 shall be
guaranteed by said firm when the public liability insurance of the broker or
brokerage firm that received said payments cannot be brought into play.
The insurer that granted its guarantee pursuant to the provisions of the
previous paragraph shall be subrogated in the insured’s rights and legal
actions pursuant to the provisions of Article L530-1.
Article L530-2-2
(inserted by Act n°. 89-1014 of 31 December
1989, Article 42, Official Journal of 3 January 1990 in force on 1 July 1990)
(Act n°. 99-532 of 25 June 1999, Article 46,
Official Journal of 29 June 1999)
The Minister for Economy shall ensure compliance with the requirements provided
for in Articles L511-1 (first paragraph), L511-2, L530-1 and L530-2. The list
of insurance brokers and brokerage companies established in
Said list shall be published each year in the Official Journal of the
Article L530-3
(inserted by Act n°. 89-1014 of
A decree in Conseil d’Etat defines the terms of application of this chapter as
well as the additional measures required to guarantee the insured’s protection.
Copyright 2009
National Law Center for Inter-American Free Trade