belgiquelex.be - Carrefour Bank of Legislation

4 AVRIL 2014. - Insurance Act (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART 1^re. - GENERAL PROVISIONS
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for the partial transfer of Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on access to insurance and reinsurance activities and their exercise (solvency II).
Subject
Art. 3. The purpose of this Act is to protect the rights of insurance licensees, insured persons, beneficiaries and any third party who have an interest in the performance of insurance contracts and, to this end:
- to establish the conditions and rules that are intended to guarantee the honest, fair and professional treatment of the parties concerned and that are applicable to the activity of insurers;
- to determine the rules of information to be followed during the offer and conclusion of an insurance contract and during the duration of that contract;
- to stop the rules relating to advertising and information obligations in case of marketing in Belgium;
- to impose rules of information and other rules on pricing, segmentation and profit participation;
- to establish, in the light of the principle of the performance of contracts in good faith, the conditions and rules that organize the contractual relationship between the insurer, the insurance owner and, where applicable, the insured and/or the beneficiary;
- to establish conditions for access to insurance and reinsurance intermediation activity, the exercise of this activity and the distribution of insurance, as well as the rules governing public information in this area; and
- to organize the control of respect for these rules.
Scope
Art. 4. § 1^er. The obligations to which insurers are subject under this Act are, in accordance with section 3 and without prejudice to the limitations of the scope established by the Act itself, applicable to the following entities:
- Belgian insurers;
- foreign insurers who have an establishment in Belgium; and
- foreign insurers who carry out insurance activities in Belgium without being established.
Companies that exercise only the reinsurance activity, without direct insurance transactions, either themselves or through an establishment, are subject to the only provisions of Articles 262, § 2, 263, paragraphs 2 and 270, § 4, 2°, last paragraph, as well as to the rules of control and the provisions of sanctions, as set out in Part 7 and Part 8.
§ 2. The obligations to which insurance intermediaries and/or reinsurance intermediaries are subject under this Act are applicable to insurance intermediaries and reinsurance intermediaries whose Member State of origin is Belgium or who operate in Belgium.
Belgium is deemed to be the original Member State of an insurance or reinsurance intermediary if
(a) an insurance or reinsurance intermediary with the quality of a natural person is domiciled in Belgium and operates in Belgium;
(b) the intermediary of insurance or reinsurance having the quality of a corporation has its head office in Belgium.
§ 3. The King may, for the purpose of fulfilling obligations arising in Belgium from international treaties or agreements, exempt, by order deliberately in the Council of Ministers, insurers or intermediaries of foreign insurance from all or part of the obligations resulting from this Act; in this case, the King may, on the advice of the FSMA, set the rules and conditions to which these persons are subjected.
§ 4. In order to take into account the particularities of this form of insurance, the King may, by order deliberately in the Council of Ministers, taken on the advice of the FSMA and the OCM, dispense the mutualist societies referred to in sections 43bis, § 5, and 70, § 6, 7 and 8, of the law of 6 August 1990 relating to the mutualities and national unions of mutualities, the application of one or more places of this Law.
§ 5. This Act is also applicable to mutual insurance associations. In order to take into account the particularities of this form of insurance, however, the King may, on the advice of the MSDS, determine the provisions of this Act that are not applicable to them and determine the terms and conditions under which other provisions are. In this case, the King shall determine, on the advice of the FSMA, the special rules and procedures to which these associations are subjected.
§ 6. The King may, on the advice of the FSMA, exempt from the application of all or part of this Act, cooperative societies that restrict their insurance activity to the municipality of their head office or to that commune and to the neighbouring municipalities and that meet the additional conditions that it sets. The King, on the advice of FSMA, sets out the special rules and procedures to which these societies are subject.
§ 7. This Act is not applicable to the following companies:
1° mutualist societies which are recognized in accordance with the law of 23 June 1894 and which are not covered by the law of 6 August 1990 mentioned above;
2° the mutualities, national mutuality unions and mutuality companies referred to in the law of 6 August 1990 mentioned above which cannot offer insurance and whose services referred to in Article 3, paragraph 1^er, (b) and (c), of this Act meet each of the conditions set out in section 67, paragraph 1^erthe Act of 26 April 2010 on various arrangements for the organization of supplementary health insurance (I);
3° professional pension institutions referred to in the Act of 27 October 2006 relating to the supervision of professional pension institutions;
4° common funds, fixed-priority private enterprises and public institutions with regard to the operations covered by the laws relating to the pension and survival regime of workers, employees, minor workers, sailors and self-employed persons;
5° provided that they are not subject to this Act for other operations, companies carrying out a assistance activity that meets the following conditions:
(a) assistance is provided in the event of an accident or failure affecting a road vehicle, where the accident or failure occurs in the territory of the member State or the country of origin of the company that grants coverage;
(b) Assistance engagement is limited to:
i. on-site troubleshooting, for which the company uses, in most circumstances, its own personnel and equipment;
ii. the transport of the vehicle to the nearest or most appropriate place of repair where the repair can be carried out, as well as the possible accompaniment, normally by the same means of rescue, of the driver and passengers, to the nearest place where they can continue their journey by other means.
In the cases referred to in 5°, point (b), i. and ii., the condition that the accident or failure occurred in the territory of the member State or the country of origin of the undertaking that grants the coverage, is not applicable when the company is an organization whose beneficiary is a member and that the vehicle's troubleshooting or delivery is carried out, on the simple presentation of the member's card, without payment of the overrated agency concerned, by
§ 8. By derogation from the provisions of paragraph 7, the King may, by order deliberately in the Council of Ministers, take on the advice of the FSMA, submit the entities referred to in paragraph 7, 1°, 3°, 4° and 5°, to the application of all or part of this Act.
§ 9. The provisions of this Act shall apply, to the extent of the special rules and procedures to be determined by the King, on the advice of the FSMA, to public institutions that carry out insurance activities.
§ 10. The King may exempt insurers from the application of all or part of this Act with respect to the following insurance transactions:
1° insurance for transport or industrial or commercial risks;
2° assurances relating to special or exceptional risks that He determines;
3° the reinsurance and co-insurance operations that He determines.
The King may, on the advice of FSMA, establish special rules relating to the obligations and control of such insurers.
Definitions
Art. 5. For the purposes of this Act and its enforcement orders and regulations, it shall be understood, unless expressly stated otherwise, by:
1° "insurer": any person or company that, as a contracting party, offers to subscribe to an insurance contract or contracts, regardless of the professional quality of that person and whether or not actuarial techniques are used at the conclusion of the contract;
2° "Belgian insurer": any person or company that meets the definition of insurer and whose principal seat is located in Belgium;
3° "EEE insurer": any person or company that meets the definition of insurer and whose principal seat is located in a member state of the EEA, other than Belgium;
4° "foreign insurer": any person or company that meets the definition of insurer and whose principal seat is located outside Belgium;
5° " third country insurer": any person or company that meets the definition of insurer and whose principal seat is located outside the EEA;
6° "Belgian insurance company": an insurance company whose principal seat is located in Belgium and which has obtained from the Bank an approval for the exercise of insurance activities or which, under the scheme established in Belgium under Article 4 of Directive 2009/138/EC, is authorized to carry out insurance activities in Belgium without having an approval;
7° "EEE Insurance Company": an insurance company whose principal headquarters is located in an EEA Member State, other than Belgium, and which has obtained, in accordance with the legislation of its Member State of origin, an approval for the exercise of insurance activities;
8° "Foreign insurance company": an insurance company whose principal seat is located outside Belgium;
9° "a third country insurance company": an insurance company whose main headquarters is located outside the EEA;
10° "accreditation": the approval granted by the competent authorities, in accordance with the legislation of the Member State of origin, for the exercise of insurance activities within the meaning of Article 14 of Directive 2009/138/EC;
11° "Insurance of the "non-life" activity group: all transactions relating to the risks that fall under the "non-life" activity group as determined in Schedule I to the Royal Decree of 22 February 1991 relating to the general regulation of the control of insurance companies, or that fall under the non-life insurance sectors as set out in the Appendix, point A, to Directive 73/239/EEC of the Board of 24 July 1973
12° "life insurance": all transactions related to the risks that fall under the "life" activity group as determined in Schedule I to the Royal Decree of 22 February 1991 on the general regulation relating to the control of insurance companies, or that fall under the life insurance branches as set out in Annex I to the Directive 2002/83/EC of the European Parliament and the Council of 5 November 2002 on life insurance
13° "capitalization transaction": an operation based on an actuarial technique, in which, in return for single or periodic payments fixed in advance, a party, the insurer, shall take to another party, the licensee of the capitalization operation, certain commitments as to their duration and amount and independent of any random event;
14° "insurance contract": a contract under which, with the payment of a fixed or variable premium, a party, the insurer, undertakes to another party, the insurance taker, to provide a benefit stipulated in the contract in case an uncertain event that, as the case may be, the insured or the beneficiary, is in the interest not to be realized. For the purposes of this Act and its enforcement orders and regulations, contracts relating to capitalization transactions are also considered insurance contracts. For these transactions, the words "preneur of insurance" are defined as "preneur of a capitalization operation";
15° "damage insurance": the insurance in which the insurance benefit depends on an uncertain event that causes damage to a person's heritage;
16° "personal insurance": the insurance in which the insurance benefit or premium depends on an uncertain event that affects a person's life, physical integrity or family situation. For the purposes of this Act and its enforcement orders and regulations, capitalization operations are also considered to be persons' insurance. However, in view of the lack of risk in the capitalization operations, articles 58, 59, 60, 61, 62, 63, 64, § 2, point 6°, and § 3, 69, 70, 71, 72, 74, 75, 76, 79, 80, 81, 84, § 2, 86, 87, 159 and 200, as well as Chapter 3 of Part 4 II, are not applicable to these transactions;
17° "assured" :
(a) in damage insurance: the person guaranteed by the property loss insurance;
(b) in personal insurance: the person on whose head the risk of occurrence of the insured event rests. In a capitalization operation, there is no insured;
18° "beneficiary": the person in favour of whom insurance benefits are provided;
19° "prime": any kind of compensation requested by the insurer for its commitments;
20° "intermediary of insurance": any legal or physical person having the status of an independent worker within the meaning of social legislation and carrying out intermediation activities in insurance, even on occasion, or having access to that activity;
21° "intermediary of reinsurance": any legal or physical person having the status of an independent worker within the meaning of social legislation and carrying out intermediation activities in reinsurance, even on occasion, or accessing this activity;
22° "establishment": the main seat or branch of a company or person;
23° "Main seat": in the case of a legal person, the actual seat and, in the case of a natural person, the business centre;
24° "succursal": any agency or branch of a company that is established in a country other than its country of origin; is considered to a branch any permanent presence of a company, even if this presence has not taken the form of a branch or agency, but is carried out by a simple office managed by the company's own staff, or an independent but mandated person to act permanently for the company as an agency would;
25° "EEE": the European Economic Area;
26° "Member State": a State that is a member of the EEA;
27° "third country": a state that is not a member of the EEA;
28° "free service delivery": the activity by which an EEA insurance company covers risks or makes commitments in another Member State, from its main seat or branch located in another Member State. As long as this is consistent with Belgian legislation in this area, this concept also covers the activity by which a third-country insurance company covers risks or makes commitments in Belgium, from its main office or from a branch located in another country;
29° "State member of origin": one of the following Member States:
(a) regarding the insurance of the "non-life" activity group, the member state in which is located the principal seat of the insurer that covers the risk;
(b) concerning the insurance of the "life" activity group, the member state in which is located the principal seat of the insurer undertaking;
30° "country of origin": one of the following countries:
(a) in respect of insurance of the "non-life" activity group, the country in which the insurer's principal seat covers the risk;
(b) regarding the insurance of the "life" activity group, the country in which the insurer's principal headquarters is located;
31° "Reception Member State": the Member State, other than the country or the Member State of origin, in which an insurer has a branch or provides services; for the insurance of the group of activities "life" and those of the group of activities "non-life" means by the Member State providing services, respectively, the Member State of the undertaking or the Member State where the risk is located, when the said undertaking or risk is covered by an insurer or branch located in another Member State;
32° "Member State where the risk is located": one of the following Member States:
(a) the Member State in which the property is located, where the insurance is related either to buildings or to buildings and their contents, to the extent that it is covered by the same insurance policy;
(b) the Member State of registration, where insurance is related to vehicles of any kind;
(c) the Member State in which the insurance taker subscribes the policy, if it is a contract of less than or equal to four months, relating to risks incurred during a trip or holiday, regardless of the branch concerned;
(d) in any case not expressly covered by points a., b. or c., the Member State where one of the following is located:
i. the habitual residence of the insurance owner; or
ii. if the insurance taker is a corporation, the establishment of the insurance taker to whom the contract relates;
33° "Member State of Commitment": the Member State where one of the following is located:
(a) the habitual residence of the insurance licensee;
(b) if the insurance taker is a corporation, the establishment of the insurance taker to whom the contract relates;
34° "competent authorities": the national authorities authorized under a law or regulation to control insurance companies and/or the activity of insurers in respect of the protection of insurance licensees, insured persons, beneficiaries and all third parties having an interest in the performance of the insurance contract;
35° "the minister": the minister who has insurance in his or her powers;
36° "the Bank": the National Bank of Belgium, referred to in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium. For mutualist societies referred to in articles 43bis, § 5, and 70, §§ 6, 7 and 8, of the law of August 6, 1990 on mutualities and national mutuality unions, the words "the Bank" in articles 5, point 6, 17 and 41 must be read as "the CMO";
37° "the FSMA": the Autorité des services et marchés financiers, referred to in section 44 of the Act of 2 August 2002 on the supervision of the financial sector and services;
38° "the MCO": the National Mutual Unions and Mutual Unions Control Board, referred to in section 49 of the Act of 6 August 1990 on mutuality and national mutuality unions;
39° "great risks" :
(a) risks to Branches 4, 5, 6, 7, 11 and 12 of Appendix I^re of the Royal Decree of 22 February 1991 on the General Regulation on the Control of Insurance Businesses, or classified under Branches 4, 5, 6, 7, 11 and 12 of the Schedule, Item A, of Council Directive 73/239/EEC of 24 July 1973 on the coordination of legislative, regulatory and administrative provisions concerning access to the activity of direct insurance other than life insurance, and its exercise, or under Branches 4,
(b) the risks arising from branches 14 and 15 of Schedule I to the Royal Decree of 22 February 1991 relating to the general regulation of insurance companies, or classified under sections 14 and 15 of the schedule, item A, of Council Directive 73/239/EEC of 24 July 1973, which coordinates the legislative, regulatory and administrative provisions concerning access to the activity of direct insurance other than the life insurance exercise, and its
(c) the risks of branches 3, 8, 9, 10, 13 and 16 of Schedule I to the Royal Decree of 22 February 1991 relating to the general regulation of the control of insurance companies, or classified under branches 3, 8, 9, 10, 13 and 16 of the Schedule, item A, of the Council Directive 73/239/EEC of 24 July 1973 on the coordination of the legislative, regulatory and administrative provisions concerning access to the activity of insurance
i. a total of 6.200,000 euros;
ii. a net amount of turnover, within the meaning of the fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54, paragraph 3, item (g), of the treaty and on the annual accounts of certain forms of companies, of 12,800,000 euros;
iii. an average of 250 employees during the fiscal year.
If the insurance licensee is part of a set of companies for which consolidated accounts are established in accordance with Directive 83/349/EEC, the criteria set out in paragraph 1^er(c) are applied on the basis of consolidated accounts;
40° "reinsurance company": a company as defined in section 82, 3°, of the law of 16 February 2009 on reinsurance;
41° "the Act of 2 August 2002": the Act of 2 August 2002 on financial sector surveillance and financial services;
42° "the law of 9 July 1975": the law of 9 July 1975 concerning the control of insurance companies;
43° "Guideline 2002/92/EC": Directive 2002/92/EC of the European Parliament and the Council of 9 December 2002 on insurance intermediation;
44° "Guideline 2009/138/EC": Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on access to insurance and reinsurance activities and their exercise (solvency II);
45° "Guideline 2009/65/EC": Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (VSF);
46° "Insurance Intermediation": any activity consisting of providing advice on insurance contracts, submitting or proposing insurance contracts or undertaking other preparatory work for their conclusion or conclusion, or contributing to their management and execution;
are not considered an intermediation in insurance:
- the activities carried out by an insurance company or an employee of an insurance company that acts under the responsibility of the insurance company;
- the activities of providing information on an occasional basis within the framework of another business activity provided that these activities are not intended to assist the client in the conclusion or execution of an insurance contract, the management, as a professional basis, of claims of an insurance company or the activities for the estimation and liquidation of claims;
47° "advisory": the provision of personalized recommendations to a customer, either at his or her request or at the initiative of the insurance intermediary with respect to one or more insurance contracts;
48° "Personal recommendation": a recommendation that is presented as appropriate to that person, or is based on the examination of the situation specific to that person in relation to one or more insurance contract(s).
A recommendation is not deemed to be personalized if it is broadcast exclusively by distribution channels within the meaning of section 2, paragraph 1^er26°, of the law of 2 August 2002, or is intended for the public;
49° "intermediation in reinsurance": any activity consisting of presenting or proposing reinsurance contracts or other preparatory work for their conclusion or conclusion, or contributing to their management and execution;
are not considered an intermediation in reinsurance:
- the activities carried out by a reinsurance company or an employee of a reinsurance company that acts under the responsibility of the reinsurance company;
- the activities of providing information on an occasional basis within the framework of another business activity provided that these activities are not intended to assist the client in the conclusion or execution of a reinsurance contract, the management, as a professional basis, of claims of a reinsurance company or the activities for the estimation and liquidation of claims;
50° "customer": a retail customer within the meaning of Article 2, paragraph 1^er29°, of the law of 2 August 2002.
Art. 6. § 1^er. For the purposes of this Act and its enforcement orders and regulations with respect to the insurance of the "non-life" activity group, the risk is deemed to be located in Belgium when:
(a) the property is in Belgium, in the case of insurance relating to either buildings or to buildings and their contents, to the extent that it is covered by the same insurance policy;
(b) registration is carried out in Belgium, in the case of insurance relating to vehicles of any kind;
(c) the insurance taker has subscribed to the policy in Belgium, if it is a contract of less than or equal to four months, relating to risks incurred during a trip or holiday, regardless of the branch concerned;
(d) in all cases not expressly covered by (a), (b) or (c), one of the following is located in Belgium:
i. the habitual residence of the insurance owner; or
ii. if the insurance taker is a corporation, the establishment of the insurance taker to whom the contract relates.
§ 2. For the purposes of this Act and its enforcement orders and regulations with respect to the insurance of the "life" activity group, the undertaking is deemed to be located in Belgium when:
(a) the habitual residence of the insurance taker is located in Belgium;
(b) the establishment of an insurance licensee that is a legal entity and to which the contract relates is located in Belgium.
§ 3. For the purposes of this Act, the "insurance provider" must be understood as the "insurance provider" if it is a pre-contractual obligation.
§ 4. For the purposes of this Act, "insurance business" means each of the following companies:
- a Belgian insurance company;
- an EEA insurance company;
- a foreign insurance company that is not an EEA insurance company and has obtained from the Bank the legal authorization required to carry out insurance activities in Belgium by branch;
- an insurance company of a third country that fulfils all the legal conditions to carry out activities in Belgium under the free provision of services.
§ 5. For the purposes of this Act, an "insurer authorized under the law to carry out insurance activities in Belgium" is one of the following insurers:
- a Belgian insurance company;
- an EEA insurance company;
- a foreign insurance company that is not an EEA insurance company and has obtained from the Bank the legal authorization required to carry out insurance activities in Belgium by branch;
- an insurance company of a third country that fulfils all the legal requirements to carry out activities in Belgium under the free provision of services;
- an insurer, other than the previous ones, who, if any, on the basis of the legislation applicable to it, has complied with the legal requirements to carry out insurance activities in Belgium.
PART 2. - SPECIFIC PROVISIONS
CONCERNING THE EXERCISE OF ACTIVITIES
PART I^er. - General provisions
Art. 7. This Part does not affect the obligations that arise, for insurance companies, from the Act of 9 July 1975, from the Labour Accidents Act of 10 April 1971 and from the Act of 3 July 1967 on the prevention and repair of damages resulting from industrial accidents, occupational accidents and occupational diseases in the public sector.
Art. 8. Insurance contracts that are entered into by an unlicensed insurer under the law to carry out insurance activities in Belgium are void. For foreign insurers, this penalty of nullity is limited to contracts relating to risks or commitments in Belgium.
However, the insurer is required to meet its obligations if the insurance licensee has subscribed in good faith. Notwithstanding any provision that is contrary to the insurance licensee, the insured and/or the beneficiary, the insurer is also required to repair the damage caused by the nullity of the contract concerned in the head of the insurance taker, the insured or the beneficiary. The damage is presumed, in an irrefragable manner, to result from the illegal conclusion of the insurance contract by an unlicensed insurer under the law to carry out insurance activities in Belgium.
Art. 9. Belgian insurers must deviate from their statutes any provision prejudicial to insurance licensees, insured persons, beneficiaries and third parties having an interest in the performance of the insurance contract.
Art. 10. The statutes of the Belgian associations of mutual insurance must hardly mention nullity
- the conditions and mode of admission, resignation and exclusion of partners;
- the method of fixing and recovering contributions or premiums as well as possible supplements for the settlement of claims;
- the procedure to be followed in the event of amendments to the statutes or liquidation of the association, without prejudice to the provisions of this Part.
Art. 11. With regard to the accounts of companies, the statutes of the Belgian associations of mutual insurance have:
(a) that it is possible to make payments in favour of members from these accounts only if it is not effective in bringing down the constituent elements of the regulatory equity below the required level or, after dissolution of the undertaking, only if all other debts have been settled;
(b) the Bank shall be notified at least one month in advance of any payment made for other purposes than the individual termination of the affiliation, and may, during that period, prohibit the payment.
Art. 12. § 1^er. Belgian insurance companies communicate to the FSMA at least three weeks before the meeting of the General Assembly or, in its absence, the decision-making body of the company, the draft amendments to the statutes, as well as the draft decisions they propose to make at the meeting and which are likely to have an impact on the rights and obligations of insurance licensees, insured interests, beneficiaries and third parties.
The MSDS may require that the comments it makes regarding these projects be made, in accordance with the terms and conditions it determines, to the knowledge of the General Assembly or, if it fails, of the corporate decision-making body. These observations and responses must be included in the minutes.
§ 2. The provisions of the statutes of the Belgian mutual insurance associations that deal with the criteria referred to in Article 11 may only be amended after the FSMA has declared that it does not oppose the amendment.
Art. 13. Belgian insurers and foreign insurers other than EEA insurance companies communicate to FSMA within one month of their approval by the General Assembly or, in its absence, by the decision-making body, changes to the statutes as well as decisions that may affect the rights and obligations of insurance licensees, insurers, beneficiaries and third parties having an interest in the performance of insurance contracts.
FSMA shall, within the maximum period of one month from the date on which it was aware, oppose the execution in Belgium of any amendments or decisions referred to in the preceding paragraph, which would violate the provisions of this Act or its decrees and regulations.
Art. 14. Belgian insurers must keep all the documents related to the insurance contracts they have subscribed. Foreign insurers other than EEA insurance companies must keep all documents relating to contracts signed by their Belgian establishment, or relating to contracts whose risk or commitment is located in Belgium.
Belgian insurers keep these documents at their main office and foreign insurers at the Belgian headquarters of their branches, or at any other place previously approved by FSMA and the Bank.
The photographic, micro-photographic, magnetic, electronic or optical copies of documents held by Belgian insurers and foreign insurers other than EEA insurance companies are believed to be the originals, of which they are presumed, unless otherwise proven, to be a faithful copy when established by one of these insurers or under its control. The King may, on the advice of the FSMA, set the conditions and modalities for the establishment of such copies.
Without prejudice to other legal provisions, FSMA and the Bank may, by regulation, set the mandatory retention period for these documents.
Art. 15. Insurers who carry out insurance activities in Belgium are required to comply with the legal and regulatory provisions of general interest applicable in Belgium to insurers and their operations.
Art. 16. Belgian insurance companies and foreign insurance companies that carry out insurance activities in Belgium other than under the free provision of services, adopt the necessary organizational measures in terms of their management structure, administrative and accounting organisation, their control and security mechanisms in the computer field and their internal control, with a view to respecting the rules to guarantee the honest, fair and professional treatment of interested parties.
PART II. - Transfers of insurance contracts
Art. 17. Disposals of rights and obligations arising from contracts relating to risks or commitments in Belgium are enforceable to insurance owners, insured persons, beneficiaries and any third party who have an interest in the performance of the insurance contract when authorized by the Bank or by the competent authorities of another Member State.
Without prejudice to the application of sections 34 and 36, this opposability takes effect on the date of the publication referred to in section 78 of the Act of 9 July 1975.
Art. 18. § 1^er. Insurance licensees have the right to terminate their contract in the forms prescribed in Article 84, § 1^erwithin three months from the publication referred to in section 78 of the Act of 9 July 1975. This termination shall take effect upon the expiration of a period of one month from the day after the day after the operation of the bailiff, the day after the date of the receipt or the day after the filing of the recommended letter or the annual expiry day of the premium if it is prior.
§ 2. The provisions of paragraph 1^er does not apply to mergers and seizures of insurance companies, or to transfers made in the context of a contribution of the generality of the goods or a branch of activity, or to other transfers between insurance companies that are part of the same consolidated package.
PART III. - Special rules concerning the insurance of the "life" activity group related to investment funds
Art. 19. § 1^er. With respect to insurance contracts in which the investment risk is directly or indirectly borne by the insurance taker, insurance benefits can only be directly or indirectly related to assets and instruments that the insurer is able to properly assess the risks.
The insurer shall inform the insurance taker, prior to the conclusion of the contract and in clear terms, of the risk that the insurance taker bears.
§ 2. The contract can only guarantee a minimum return if this guarantee is covered by a registered company in the European Union.
Art. 20. § 1^er. When the insurance taker is a retail customer and the commitment is located in Belgium, insurance benefits can only be directly or indirectly related to:
(a) shares of collective investment organizations, listed in section 33 or section 149 of the Act of 3 August 2012 on certain forms of collective investment portfolio management,
(b) shares of securities collective investment organizations, as set out in Directive 2009/65/EC,
(c) assets belonging to the categories of investments open to Belgian securities holdings, provided that the rules set out in chapters VII and X of Directive 2009/65/EC are complied with;
(d) assets belonging to the categories of investments open to public investment bodies under Belgian law, provided that the rules governing the investment policy of the internal or external investment fund do not deviate from those applicable to the corresponding investment category open to Belgian collective investment agencies.
§ 2. Provided that all documents used for the marketing of the insurance contract clearly mention the risk of credit associated with such financial instruments, it is permitted, in derogation from paragraph 1^er, to place more than 20% of the value of the equity in deposits with a single credit institution, as referred to in Parts II to V of the Act of 22 March 1993 relating to the status and control of credit institutions, provided that it is a credit institution whose head office is located in a member state of the EEA and has obtained an approval from the competent supervisory authority for that purpose. Documents used for the marketing of the insurance contract may not mention a total or partial capital guarantee. They can only mention capital protection at the final maturity if the underlying financial structure provides this protection at the final maturity.
§ 3. Provided that all documents used for the marketing of the insurance contract clearly mention the risk of credit associated with such financial instruments, it is permitted, in derogation from paragraph 1^er, to place more than 20% of the value of the own assets in non-subordinate, non-exchangeable and non-convertible bonds or other fixed-income financial products, issued by the Bank or by a single credit institution, as referred to in Parts II to V of the Act of March 22, 1993 relating to the status and control of the credit institutions, provided that it is a credit institution whose head office is located in a registered EA The duration of these financial instruments must coincide with the duration of the insurance contract. Documents used for the marketing of the insurance contract may not mention a total or partial capital guarantee. They can only mention capital protection at the final maturity if the underlying financial structure provides this protection at the final maturity.
§ 4. Provided that all documents used for the marketing of the insurance contract clearly mention the risk of credit associated with such financial instruments, it is permitted, in derogation from paragraph 1^er, to place more than 20% of the value of the equity in securities admitted to trading in a regulated market within the meaning of Article 2, 3, 5 or 6, of the Act of 2 August 2002, provided that such securities are issued or guaranteed by a central, regional or local administration of a member State of the EEA or by an international public body of which one or more are part of EEA member states, and/or in instruments of the monetary market (i) that are issued or guaranteed by a central, regional or local administration of a member state of the EEA or by an international public body that are part of one or more EEA member states and (ii) whose issue or issuer, in the case of instruments of the monetary market that are not allowed to negotiate on a regulated market within the meaning of Article 2, 3°, 5° or 6°, of the Act of 2 August 2002, are themselves subject to regulations to protect investors and savings. Documents used for the marketing of the insurance contract may not mention a total or partial capital guarantee.
§ 5. Derogation from paragraph 1^er, the FSMA may, under the conditions it determines, accept that for the purposes of paragraph 1^er, c. and d., direct positions are combined with the positions of collective investment agencies in which investments are made. The insurer provides for control procedures to ensure the monitoring of combined positions.
The rules relating to the establishment and collection of commissions and fees directly or indirectly dependant on insurance licensees must be clear and accurate.
The insurer's Commissioner prepares a report each year in which he certifies that the provisions of paragraph 1^er are respected and that the organization structure does not harm the interests of insurance licensees and does not cause higher current costs to the prejudice of insurance licensees.
§ 6. The King may, by order taken on the advice of FSMA and the Bank, define more precisely the rules set out in paragraphs 1^er 5. The King may, by order deliberately in the Council of Ministers, take, where appropriate, accompanying measures to provide for the warning of insurance licensees in advertising and other documents and notices and/or in pre-contractual information.
PART 3. - THE OFFICE AND THE CONTRATS CONCLUSION: INFORMATION, PUBLICITY, TARIFICATION, SEGMENTATION AND PARTICIPATION TO BENEFICES
PART I^er. - General provisions
Art. 21. For the drafting of all documents relating to the conclusion and execution of insurance contracts, insurers and insurance intermediaries are required to comply with the rules laid down under this Act by the King on the advice of the MSDS.
Art. 22. § 1^er. General, special and special terms and conditions, insurance contracts as a whole, as well as all clauses taken separately that do not comply with the provisions of Parts 2 and 3 and their enforcement orders and regulations, or with the provisions of the Act of 9 July 1975 and its enforcement orders and regulations, shall be deemed to have been established from the conclusion of the contract in accordance, as the case may be, with the provisions of Parts 2 and 3 and their regulations and
§ 2. Paragraph 1^er does not apply to rates.
Art. 23. § 1^er. General, special and special terms and conditions, insurance contracts as a whole, as well as all separate clauses must be written in clear and precise terms. They may not contain any clause that affects the equivalence between the insurer's commitments and those of the insurer.
§ 2. In case of doubt about the meaning of a clause, the most favorable interpretation of the insurance taker prevails in all cases. If the insurance taker and the insured are not a single person, it is the most favorable interpretation to the insured person.
Paragraph 1^er is not applicable to insurance contracts relating to major risks, with the exception of the risks referred to in section 5, 39°, point b), provided that the insurance taker exercises a liberal profession and that the risk relates to the exercise of that profession.
Art. 24. Without prejudice to the application of international treaties or agreements, there are no clauses and agreements to be awarded to foreign courts, excluding the Belgian judge, jurisdiction to hear any disputes relating to insurance contracts.
Art. 25. Contracts intended to meet an insurance obligation imposed by Belgian law are governed by Belgian law.
When the insurance contract provides coverage in several Member States whose at least one imposes an obligation to subscribe insurance, the contract is considered, for the purposes of this article, to include several contracts, each of which would relate only to one Member State.
Art. 26. § 1^er. Insurers who offer insurance from the "non-life" activity group made mandatory in Belgium are required to inform FSMA.
§ 2. FSMA may require insurers referred to in paragraph 1^er that they communicate to FSMA and the Bank, prior to their release, the general and special conditions of these insurances of the "non-life" activity group made mandatory in Belgium.
§ 3. The information and documents referred to in paragraphs 1^er and 2 must be written at least in the language imposed by law or decree.
Art. 27. If the insurer is required, under the Belgian law that imposes the obligation of insurance, to declare any termination of the guarantee to the authorities, that termination is only enforceable against the injured third parties under the conditions provided by Belgian law.
PART II. - Rules on transparency
CHAPTER 1^er. - General provisions concerning advertising and other documents and notices
Art. 28. § 1^er. All documents brought to the public in Belgium by insurers or insurance intermediaries must include the mentions fixed by the King, on the advice of FSMA.
§ 2. The King may, on the advice of the FSMA, set rules concerning the content and mode of presentation of notices, advertisements and other marketing documents that relate to insurance contracts offered and/or marketed in Belgium by an insurer or an insurance broker.
§ 3. Notices, advertisements and other documents relating to insurance contracts offered and/or marketed in Belgium by an insurer or an insurance broker must at least meet the following conditions:
1° the information contained therein may not be misleading or inaccurate;
2° the data they contain is compatible with the other information that the law provides for mandatory communication to the insurance applicant.
Promotional communications must be clearly recognizable as such.
§ 4. For the purposes of this article, "commercialization" means the presentation of an insurance contract, in any way, with a view to inducing the insurance taker or the prospective insurance taker to enter into an insurance contract.
§ 5. As long as the statute of limitations for proceedings against an insurer or an insurance intermediary is not passed and for a period of not less than two years after the expiry of the last insurance contract to which these notices, advertisements and other documents relate, insurers and insurance intermediaries shall retain a copy of the notices, advertisements and other documents referred to in subsection 3.
§ 6. Photo, microphotographic, magnetic, electronic or optical copies of notices, advertisements and other documents are believed to be the originals, of which they are presumed, unless otherwise proven, to be a faithful copy when established by insurers and/or insurance intermediaries or under their control. The King may, on the advice of the FSMA, set the conditions and modalities for the establishment of such copies.
CHAPTER 2. - Information
Art. 29. The provisions of this chapter relate to insurance contracts whose risk or commitment is located in Belgium.
Art. 30. All documents intended for the insurance taker, the insured, the beneficiary and any third party with an interest in the performance of the insurance contract must include the mentions set by the King, on the advice of the MSDS.
Art. 31. When the Belgian law requires proof of compulsory insurance, the insurer must issue to the insured a certificate certifying that the compulsory insurance contract has been signed.
The King shall determine, on the advice of the FSMA, the elements to be included in this certificate.
Art. 32. For insurance of the "non-life" business group, the insurer must, before the contract is concluded, in the event that the insurance taker is a natural person, at least:
(a) provide the contract with information on the law applicable to the contract, specifying:
i. where the parties have no freedom of choice, the right to be applicable to the contract;
ii. where the parties have the freedom of choice:
- the fact that the parties have the freedom to choose the applicable law,
- the insurer's right, if any, to choose, and
- the law to be applicable, in accordance with the relevant legislation, in the absence of agreement between the parties or of express choice made by the parties;
and
(b) informing them of the provisions relating to the treatment of insurance claimants' complaints about contracts, including the existence of the insurance ombudsman service, without prejudice to the possibility for the insurance holder to initiate legal proceedings.
Art. 33. § 1^er. When an "non-life" activity group insurance is proposed by a foreign insurer, the insurance provider must be informed, prior to the conclusion of any undertaking, of the name of the country in which the principal seat is located and, where applicable, the branch with which the contract will be entered.
All documents provided to the insurance licensee include information referred to in paragraph 1^er.
In the event that the foreign insurer is an EEA insurance company, the obligations set out in paragraphs 1^er and 2 do not concern major risks.
§ 2. The contract or any other document granting the coverage, as well as the insurance proposal in the event that it binds the insurance taker, shall indicate the name and address of the principal seat and, where applicable, the insurer's branch that grants the coverage.
Documents referred to in paragraph 1^er also mention the name and address of the insurer's representative, as referred to in section 68 of the Act of 9 July 1975.
Art. 34. For the insurance of the "non-life" activity group, the insurer shall inform the insurance owner, throughout the contract, of any changes in the following information:
(a) the name and address of the main seat and, where applicable, the insurer's branch that grants coverage;
(b) the name and address of the insurer's representative as referred to in section 68 of the Act of 9 July 1975.
The insurer shall send a copy of these communications to the FSMA.
Art. 35. § 1^er. For insurance of the "life" business group, the insurer must, prior to the conclusion of the contract, communicate to the insurance owner at least the information referred to in paragraphs 2 and 3.
§ 2. Without prejudice to other legal obligations, the following information concerning the insurer is communicated:
(a) the name or social reason and legal form of the insurer;
(b) the name of the country where the principal seat is located and, where applicable, the branch with which the contract will be entered;
(c) the address of the main seat and, where applicable, the branch with which the contract will be entered into;
(d) a concrete reference to the solvency and financial situation report provided for in Article 51 of Directive 2009/138/EC, which allows the insurance licensee to easily access this information.
§ 3. Without prejudice to other legal obligations, the following information regarding the undertaking is communicated:
(a) the definition of each guarantee and option;
(b) the duration of the contract;
(c) the termination of the contract;
(d) the payment of premiums and the duration of payments;
(e) the modalities for calculating and awarding profit-sharing;
(f) indications on the redemption and reduction values and the nature of the related guarantees;
(g) information on premiums for each guarantee, whether principal or complementary, where such information is appropriate;
(h) a listing of the reference values used (account units) in investment funds insurance;
(i) information on the nature of the representative assets of investment funds insurance;
(j) the procedure for exercising the right to waiver;
(k) general indications relating to the tax regime applicable to the type of police, including information on the tax treatment of benefits on the final expiry of the contract and in the event of an advance purchase;
(l) the provisions relating to the treatment of insurance licensees' complaints, whether insured or beneficiary, with respect to contracts, including the existence of the insurance ombudsman service, without prejudice to the possibility of a legal action;
(m) information on the law applicable to the contract, including:
i. where the parties have no freedom of choice, the right to be applicable to the contract;
ii. where the parties have the freedom of choice:
- the fact that the parties have the freedom to choose the applicable law,
- the insurer's right, if any, to choose, and
- the law that will be applicable, in accordance with the relevant legislation, if there is no agreement between the parties or any express choice made by them.
In addition, specific information is provided to ensure that the risks underlying the contract are properly perceived by the insurance taker.
Art. 36. For the insurance of the "life" activity group, the insurer shall inform the insurance owner, for the duration of the contract, of any changes in the following information:
(a) the general, special and special conditions of the police;
(b) the name or social reason of the insurer, its legal form or address of its principal seat and, where applicable, its branch with which the contract was concluded;
(c) any information listed in Article 35, § 3, points (d) to (j), that the amendment is the result of an avenger or the result of an amendment to the law applicable to the contract;
(d) annual information on the situation of profit participation.
The insurer shall send a copy of these communications to the FSMA.
Art. 37. The information referred to in articles 35 and 36 should be clearly and accurately in writing and be provided in one of the official languages of Belgium.
This information may, however, be provided to the insurance taker in another language if the applicant so requests or if he has the freedom to choose the applicable law.
Art. 38. The King may, on the advice of FSMA, more accurately define the information required under sections 32 to 36 and determine the additional information that insurers and/or intermediaries must provide to the insurance provider prior to the conclusion of the contract and for the duration of the contract, as well as the mode of communication of that information.
PART III. - Pricing, conditions and segmentation
CHAPTER 1^er. - General provisions
Art. 39. With respect to foreign insurers, the provisions of this chapter relate only to insurance contracts whose risk or commitment is located in Belgium.
Art. 40. § 1^er. For the establishment and application of their rates and conditions, insurers are required to comply with the rules laid down by the King, on the advice of FSMA and the Bank.
§ 2. Derogation from paragraph 1^er, EEA insurance companies must comply, for the establishment and application of their rates, with the legislation of their Member State of origin.
Paragraph 1^er does not, however, affect the obligation of EEA insurance companies to comply with the mandatory rules of general interest provided by Belgian law that establish a technical framework for the development of tariffs in which insurance companies must calculate their premiums.
Art. 41. If the Bank takes measures in accordance with Article 21octies, § 2, paragraphs 1^er and 2, of the Act of 9 July 1975, the raising of a tariff applies to contracts entered into on the basis of the notification of the Bank's decision and, without prejudice to the right to the termination of the insurance licensee, it also applies to premiums and contributions of existing contracts, which expire on the first day of the second month following the notification of the Bank's decision.
CHAPTER 2. - Segmentation
Art. 42. The provisions of this chapter relate to insurance contracts whose risk or commitment is located in Belgium.
Art. 43. § 1^er. Sections 44 to 46 apply to insurance contracts listed below, to the extent that the insurance taker is a consumer within the meaning of section 2, 3°, of the Act of 6 April 2010 on market practices and consumer protection:
- Obligatory liability insurance for self-propelled vehicles;
- Fire and other hazard insurance in respect of single-risk dwellings within the meaning of section 5 of the Royal Decree of 31 December 1992 implementing the Act of 25 June 1992 on the land insurance contract;
- Insurance covering extra-contractual civil liability for privacy;
- Legal protection insurance;
- Individual life insurance; and
- The health insurance contract referred to in Article 201, § 1^er1°.
§ 2. The King may, by order deliberately in the Council of Ministers, taken on the advice of FSMA, extend the application of all or part of this chapter to other insurance contracts.
§ 3. This chapter applies without prejudice to the obligations imposed by Part 4 of this Act and the orders and/or regulations made for its enforcement.
Art. 44. Any segmentation of the acceptance, pricing and/or scope of the guarantee must be objectively justified by a legitimate objective, and the means to achieve this objective must be appropriate and necessary.
Art. 45. § 1^er. The insurer publishes on its website, by type of insurance contract as referred to in section 43, § 1^er, the criteria it uses as part of the segmentation of acceptance, pricing and/or scope of the warranty. The insurer explains on its website, in a clear and understandable way, the reason for using these criteria.
§ 2. The King may, by order deliberately in the Council of Ministers, take on the advice of the MSDS, determine, if any by type of insurance contract, the segmentation criteria that may be used by the insurer, or indicate, if any by type of insurance contract, the segmentation criteria that cannot be used.
Art. 46. § 1^er. In its offer to the insurance taker, the insurer mentions the segmentation criteria it used to determine the terms and conditions of the contract and the scope of the warranty. This information is provided individually and in a clear and understandable manner for the insurance taker.
In its explanation of the segmentation criteria used, the insurer distinguishes between:
- the criteria used to determine the conditions that will be applicable in the course of the contract; and
- criteria that may have an impact on the terms of the contract in the future.
§ 2. When the insurer decides, during the term of the insurance contract, to transmit to the insurance licensee, due to the modification of a risk, a proposal to amend the tariff conditions or the guarantee granted, the insurer must, without prejudice to any other legal obligations, submit its proposal to the insurance licensee in writing, express and motivated.
The proposal and its motivation must be communicated to the insurance taker individually and formulated in a clear and understandable language for the insurance taker. In the motivation, the insurer specifically sets out the data, whether communicated or not by the insurance taker, that it used during the assessment of the modified risk, as well as the segmentation criteria that it applied, and that led to the formulation of its proposal. The proposal also explains, in a clear and understandable manner, what happens to the insurance contract in progress, as the insurance licensee decides whether or not to proceed with the proposal.
§ 3. When the insurer decides, during the term of the insurance contract, to terminate the insurance contract on the basis of the change of a risk, the insurer shall, without prejudice to any other legal obligations, notify the insurance holder in writing, express and motivated, except in the cases referred to in Article 57, §§ 3, 4 and 5.
This decision and its motivation must be communicated to the insurance taker individually and made in a clear and understandable language for the latter. In the motivation, the insurer specifically sets out the data, whether communicated or not by the insurance licensee, that it used during the risk evaluation, as well as the segmentation criteria that it applied, and that led to the insurer making its decision.
§ 4. When an insurer decides to refuse the award of insurance, it must notify the insurer in writing, express and motivated.
This decision and its motivation must be communicated to the insurance taker individually and made in a clear and understandable language for the latter. In the motivation, the insurer specifically sets out the data, whether communicated or not by the insurance licensee, that it used during the risk assessment, as well as the segmentation criteria that it applied, and that led to the insurer's decision.
In the event that the disclosure of the reason for its refusal would be likely to seriously prejudice the activity of the insurer or in the event that the disclosure would result in a breach of an obligation of secrecy imposed by law, the insurer is not required, subject to the conditions described in the following paragraph, to communicate the specific reason underlying its refusal decision.
Where the non-communication of the ground of refusal to an insurance applicant may not be justified by respect of a duty of secrecy imposed by law, the insurer may not avail itself of the exception to the obligation of motivation as provided for in the preceding paragraph only provided that the ground of refusal underpinning its decision is included in a limiting list of grounds of confidential refusal which has been previously communicated to the MSDS. In addition, the insurer maintains a centralized position in one of its Belgian establishments or, if it does not have a Belgian establishment at its main headquarters located within the EEA or in any other place previously approved by the FSMA, a list of the assurances that it has refused, the specific reason underlying its refusal decision has not been communicated, mentioning the reason for refusal concerned, such as
§ 5. The King may, by order deliberately in the Council of Ministers, made on the advice of the MSDS, impose additional rules concerning the precise content of the motivation referred to in the preceding paragraphs, the manner in which the decision is to be communicated and the deadlines to be respected by insurers.
PART IV. - Participation in profits
Art. 47. The provisions of this title relate to insurance contracts whose risk or commitment is located in Belgium.
Art. 48. Participation in profits may not be mentioned in advertisements and other marketing documents unless the insurer has a legal or contractual obligation to provide for participation in profits and the right to participation in profits under an individual contract does not depend on the discretion of the insurer.
Art. 49. Prior to the conclusion of the insurance contract, the insurer shall inform the individual claimant of whether and under what conditions a right of participation in profits exists in favour of insurance contracts. The terms and conditions for calculating and assigning profit participation are set out.
Art. 50. § 1^er. The insurance taker receives at least once a year information on the status of the profit participation and is kept informed throughout the contract of any changes in this situation.
§ 2. In the event that the insurer, in relation to the offer or conclusion of an insurance contract of the "life" activity group, communicates projections of interest in profits, it provides the insurance lessee with an example of a calculation in which the possible maturity payment is exposed on the basis of a calculation that applies three different interest rates. This does not apply to temporary death insurance. The insurer informs the insurer, in a clear and understandable manner, that this calculation example is only the application of a model based on pure assumptions and that the insurance taker does not draw from this calculation example any contractual rights.
§ 3. In the case of profit-sharing insurance, the insurer shall inform the insurance licensee, annually and in writing, of the situation of the insurance licensee's rights, including the interest in profits. In addition, where the insurer has provided projections for profit participation, the insurer informs the insurance licensee of the differences between the observed evolution and the initial data.
§ 4. The insurer shall transmit to the MSDS a copy of the communications made to the insurance licensee in accordance with the preceding paragraphs.
Art. 51. § 1^er. If participation in profits is mentioned in advertisements and/or other marketing documents, the insurer shall, as information for insurance licensees, establish a profit-sharing plan. The insurer makes this plan available to the insurance applicant prior to the conclusion of the insurance contract. Any subsequent amendments to this plan, to the extent that they have an impact on insurance contracts, are communicated without delay, in writing, to insurance licensees.
§ 2. This profit-sharing plan sets out, in clear terms, the following:
- the method of calculating total distribuable profit;
- how to determine whether and to the extent to which this distribuable benefit will be paid or awarded to shareholders and the community of insurance contracts providing for participation in profits;
- the method of establishing the distribution key between shareholders and the insurance community to be applied; and
- the criteria on which participation in profits will be attributed to the separate insurance contracts and the conditions under which this award will be performed.
§ 3. The distribution, between separate insurance contracts, of the benefit awarded to the community of insurance contracts must be carried out in accordance with the fairness of insurance licensees.
§ 4. The King may, by order made on the advice of the MSDS and the Bank, specify the content of the profit-sharing plan and determine the criteria that the insurer may or should apply when awarding the profit-sharing to the separate insurance contracts.
Art. 52. § 1^er. The information referred to in articles 48 to 51 must be clearly and accurately written and be provided in one of the official languages of Belgium.
This information may, however, be provided to the insurance taker in another language if the applicant so requests or if he has the freedom to choose the applicable law.
§ 2. The King may, by order taken on the advice of FSMA, specify the content and mode of communication of the information referred to in Articles 48 to 51.
Art. 53. The King may, by order deliberately in the Council of Ministers, take on the advice of FSMA and the Bank, provide, for one or more insurance activities, provisions specifying:
1° that a portion of the distribuable benefit must be distributed within the community of insurance contracts, and under what terms this part of the profit and the key of distribution between the shareholders and the community of contracts must be calculated;
2° on which conditions the distribution of benefits in favour of insurance contracts does not take the final waiver of these amounts in the head of the insurance company, so that the insurance company may still use them, for a limited period of time, for the purpose of complying with legal solvency requirements;
3° at which time the amounts awarded are deemed definitively acquired by the beneficiaries;
4° how the elements mentioned in the above points must be treated in the accounting of the insurance company.
PART 4. - THE TERRESTER ASSURANCE CONTRAT
PART I^er. - Scope and definitions
Scope
Art. 54. The provisions of this Part apply to all land insurance contracts governed by Belgian law, to the extent that they are not derogated by specific laws.
They do not apply to reinsurance or to insurance for the carriage of goods, baggage insurance and removals excepted.
Definitions
Art. 55. For the purposes of this Part:
1° "injured person": in liability insurance, the person who is the victim of a damage to which the insured person is responsible;
2° "insurance benefit": the amount payable or service to be provided by the insurer in the performance of the insurance contract;
3° "indemnity insurance": that in which the insurer undertakes to provide the benefit necessary to repair all or part of a damage suffered by the insured or to which the insured person is liable;
4° "package insurance": the one in which the insurer's benefit does not depend on the importance of the damage;
5° "insurance request": a form from the insurer by which the insurer offers to take the risk on an interim basis, at the request of the insurance licensee;
6° "proposal of insurance": a form from the insurer, to be completed by the insurance taker, and to inform the insurer of the nature of the transaction and the facts and circumstances that constitute an assessment of the risk;
7° "presigned policy": an insurance policy signed before by the insurer and containing an offer to contract the conditions described therein, possibly supplemented by the specification that the insurance taker mentions in the places provided for in this regard;
8° "indemnity insurance": a penalty consisting of the insurer to reduce its benefit, in the light of the failure, by the insurance owner or the insured, to any of the obligations arising out of the insurance contract.
Peremptory rules
Art. 56. Except where the possibility of derogation by specific conventions results from their very drafting, the provisions of this Part are imperative.
PART II. - The insurance contract in general
CHAPTER 1^er. - Provisions common to all contracts
Section I^re. - Conclusion of the contract
Insurance proposal, pre-signed policy and insurance application
Art. 57. § 1^er. The insurance proposal does not involve either the insurance applicant or the insurer to enter into the contract. If, within thirty days of the receipt of the proposal, the insurer did not notify the insurance applicant, either an offer of insurance, or the subordination of the insurance to an inquiry, or the refusal to ensure, the insurer must enter the contract under penalty of damages. These provisions, as well as the mention that the signature of the proposal does not run the coverage, must be expressly included in the insurance proposal.
§ 2. In the event of a presigned policy or an insurance application, the contract is formed upon signature of one of these documents by the insurance owner.
Unless otherwise agreed, the warranty will take place on the day after receipt by the presigned police insurer or the application. The insurer will communicate this date to the insurance owner.
§ 3. Except for contracts of less than thirty days, the insurance holder shall have the right to terminate the contract, with immediate effect at the time of notification, within thirty days for life insurance contracts and for capitalization transactions and within fourteen days for other insurance contracts, from the date of the course of the contract. This faculty must be expressly mentioned under the conditions of the police. In the case of contracts that are not life insurance contracts or capitalization transactions, the insurance licensee shall only have this power if the contract has been formed through a pre-signed policy or an insurance application.
§ 4. Except for contracts of less than thirty days, the insurer may terminate the contract that has been formed through a pre-signed policy or an insurance application, within thirty days for life insurance contracts and fourteen days for other insurance contracts, from the date of receipt of the pre-signed policy or application, the termination becomes effective eight days after notification. These provisions must be expressly mentioned under the conditions of the pre-signed police or the application. The application and proposal must be signed separately.
§ 5. Any distance insurance contract, as defined in Chapter 3, Section 2, of the Act of April 6, 2010 on market practices and consumer protection, is concluded when the insurer receives the acceptance of the insurance licensee.
The insurance taker and insurer have a period of fourteen days to terminate the insurance contract, without penalty and without any obligation of motivation. However, for life insurance contracts, this period is extended to 30 days.
The period in which the right of termination may be exercised begins to run:
- from the day of the conclusion of the insurance contract, except for life insurance contracts, for which the period begins to run at the time the insurance taker is informed by the insurer that the insurance contract has been concluded;
- from the day on which the insurance taker receives the contractual terms and any other additional information, if the latter day is after the first dash.
Termination from the insurance licensee shall take effect at the time of notification, that from the insurer eight days after notification.
The right of termination does not apply to travel or baggage insurance policies or similar short-term insurance policies of less than one month, or to life insurance contracts related to an investment fund.
§ 6. The King may, on the advice of FSMA and the Bank, specify the terms and conditions applicable in the exercise of the right of termination referred to in paragraphs 3, 4 and 5.
§ 7. Upon receipt, the insurer will proceed with the systematic datage of insurance proposals, pre-signed policies and insurance requests.
Reporting obligation
Art. 58. The insurance taker has an obligation to declare exactly, at the conclusion of the contract, all the known circumstances of the insurance provider and that the insurer must reasonably consider as a component of the risk assessment element. However, the insurer must not report to the insurer the already known circumstances of the insurer or that the insurer should reasonably know. Genetic data cannot be reported.
If the insurer is not answering certain written questions, and if the insurer has nevertheless entered into the contract, it cannot, except for fraud, avail itself of this omission at a later date.
intentional omission or inaccuracy
Art. 59. When intentional omission or inaccuracy in the statement mislead the insurer on the risk assessment elements, the insurance contract is void.
The premiums accrued until the insurer has been aware of the omission or intentional inaccuracy are due to it.
Unintentional omission or inaccuracy
Art. 60. § 1^er. When the omission or inaccuracy in the declaration is not intentional, the contract is not null.
The insurer proposes, within one month of the day on which it was aware of the omission or inaccuracy, the modification of the contract with effect on the day on which it was aware of the omission or inaccuracy.
If the insurer demonstrates that the insurer would not have insured the risk, the insurer may terminate the contract within the same period of time.
If the contract amendment proposal is refused by the insurance licensee or if, after a month of receipt of the proposal, the insurance provider is not accepted, the insurer may terminate the contract within fifteen days.
The insurer who has not terminated the contract or proposed its amendment within the time limits indicated above shall no longer avail itself of the facts known to it in the future.
§ 2. If the inaccurate omission or declaration cannot be filed with the insurance owner and if a claim occurs before the contract amendment or termination has taken effect, the insurer must provide the agreed benefit.
§ 3. If the non-mission or inaccurate return may be returned to the insurance licensee and if a claim occurs before the contract amendment or termination has taken effect, the insurer is required to provide a benefit only in the relationship between the paid premium and the premium that the insurance licensee should have paid if the insurer had regularly declared the risk.
However, if, in the event of a loss, the insurer demonstrates that it would not have insured the risk of the actual nature of the claim, the insurer's benefit is limited to the reimbursement of all the premiums paid.
§ 4. If an unknown circumstance of the two parties at the conclusion of the contract is to be known during the performance of the contract, it shall be applied to section 80 or article 81 as the said circumstance constitutes a decrease or aggravation of the insured risk.
Medical information
Art. 61. The physician chosen by the insured person may hand over to the insured person upon request, the medical certificates necessary for the conclusion or execution of the contract. These certificates are limited to a description of the current state of health.
These certificates can only be delivered to the insurer's medical advice. The latter may not disclose any non-relevant information with respect to the risk for which the certificates were issued or related to other persons than the insured.
The medical examination, necessary for the conclusion and execution of the contract, can only be based on the background that determines the current state of health of the insured candidate and not on genetic analysis techniques that determine the future state of health.
As long as the insurer justifies the prior agreement of the insured, the insured physician shall transmit to the insurer's medical advisor a certificate establishing the cause of death.
When there is no longer a risk to the insurer, the consulting physician shall, at their request, return the medical certificates to the insured person or, in the event of death, to his or her eligible persons.
Section II. - Scope of the guarantee
Dol and fault
Art. 62. Notwithstanding any agreement to the contrary, the insurer may not be required to provide its warranty in respect of any person who has intentionally caused the claim.
The insurer responds to claims caused by the fault, even heavy, of the insurance owner, the insured or the beneficiary. However, the insurer may exempt itself from its obligations for cases of serious misconduct that are expressly determined and limited in the contract.
The King may establish a limiting list of facts that may not be described as heavy misconduct.
War
Art. 63. Unless otherwise agreed, the insurer does not respond to the claims caused by war or similar acts and civil war.
The insurer must demonstrate the fact that it is exempt from its warranty.
However, the King may set rules that relieve the burden of proof of the fact that exempts the insurer from its warranty.
Section III. - Proof and content of the contract
Evidence and content of the contract
Art. 64. § 1^er. Subject to the acquaintance and oath, and whatever the value of the commitments, the insurance contract and its amendments prove in writing between parties. He is not given any evidence by witnesses or presumptions against and in addition to the content of the act.
However, where there is a beginning of evidence in writing, evidence by witnesses or presumptions is allowed.
Section 1328 of the Civil Code is not applicable to the insurance contract or its amendments.
§ 2. The insurance contract mentions at least:
1 the date on which the insurance contract is entered into and the date on which the insurance takes place;
2° the duration of the contract;
3° the identity of the insurance taker and, where applicable, the insured and the beneficiary;
4° the name and address of the insurer or co-insurers;
5° where applicable, the name and address of the insurance intermediary;
6° the risks covered;
7° the amount of the premium or how to determine it.
§ 3. The insurer is required to issue a copy of the information that the insurer has provided in writing with respect to the risk to be covered to the insurance licensee by the time the contract is concluded.
Section IV. - Contract performance
Partial or total loss of entitlement to insurance
Art. 65. The insurance contract may not provide for the partial or total loss of the right to an insurance benefit only as a result of the non-performance of a specified obligation imposed by the contract and on the condition that the breach is causal to the occurrence of the claim.
However, the King may regulate the partial or total loss of the right to an insurance benefit.
Combined police
Art. 66. If there is no agreement to the contrary, where, in the same contract, the insurer undertakes various benefits, either because of the promised guarantees or because of the risks insured, the cause of termination in respect of one of the benefits does not affect the contract as a whole.
If the insurer terminates the warranty for one or more benefits, the insurance taker may then terminate the contract as a whole.
The cause of invalidity relative to one of the benefits does not affect the contract as a whole.
Method of payment of the bonus
and the insurance benefit
Art. 67. The insurance premium is quable.
In the absence of being made directly to the insurer, the payment of the premium made to the third party that requires it and appears as the insurer's agent to receive it.
When the insurer fails to pay directly to the insured person or his or her owner the amounts to which he or she is liable in the performance of the insurance contract, but makes such payment through an insurance intermediary, only the effective receipt of such payment by the insured person or his or her rightful person releases the insurer from his or her obligations.
Payment to minors of age, prohibited and other incapable
Art. 68. An insurer who makes a payment to a minor, a prohibited person or another person unable under an insurance contract, shall make a payment on an account that is open to his or her name, with unavailability to the majority or to the lifting of the disability, without prejudice to the right to legal enjoyment.
Failure to pay the premium
Art. 69. Failure to pay the premium on maturity may result in the suspension of the guarantee or termination of the contract provided that the debtor has been restrained.
However, the insurance contract may provide that the guarantee will only take place after payment of the first premium.
Summation to pay
Art. 70. The stipulation referred to in section 69 is made either by exploit of a bailiff or by registered letter.
It includes summation to pay the premium within the time it sets. This period may not be less than fifteen days from the day after the service or the day after the filing of the recommended letter.
The payment remains a reminder of the maturity date and the amount of the award. It also recalls the consequences of the failure to pay the bonus within the specified time limit, the starting point of that period and specifies that the suspension of the guarantee or termination of the contract takes effect from the day after the period ends, without prejudice to the guarantee of an insured event previously occurring.
Effect of suspension of warranty or termination of contract
Art. 71. The suspension or termination shall be effective only on the expiry of the period referred to in section 70, paragraph 2.
If the guarantee has been suspended, the payment by the insurance owner of the expired premiums will end this suspension.
The insurer who suspends its warranty obligation may terminate the contract in the same instalment. In this case, termination takes effect upon the expiry of a period that cannot be less than fifteen days from the first day of the suspension.
If the insurer has not notified the termination of the contract in the condition itself, the termination of the contract may only be effected through a new stay made in accordance with section 70.
The provisions of this section relating to the suspension of the guarantee do not apply to insurance contracts for which the payment of the premium is optional.
Effects of suspension in respect of recurring premiums
Art. 72. The suspension of the warranty does not affect the insurer's right to claim premiums that are subsequently due to maturity provided that the insurance licensee has been placed on hold in accordance with section 70. In this case, the resting period recalls the suspension of the guarantee.
However, the insurer's right is limited to premiums for two consecutive years.
Premium
Art. 73. When the contract is terminated for any cause, the paid premiums for the period of insurance after the date of effect of termination shall be refunded within thirty days of the effective date of termination or, in the case of application of section 57, § 3, after receipt by the insurer of the notification of termination.
In the event of partial termination or any other reduction in insurance benefits, paragraph 1^er only applies to the portion of the premiums corresponding to this decrease and to the extent that it is.
Claims statement
Art. 74. § 1^er. The insured person must, as soon as possible and in any case within the time limit set by the contract, notify the insurer of the incident.
However, the insurer may only avail itself of the period provided for in the contract to give the notice referred to in paragraph 1^er was not respected, if this notice was given as quickly as it could reasonably be done.
§ 2. The insured person must promptly provide the insurer with any relevant information and respond to requests made to determine the circumstances and determine the extent of the claim.
Duties of the insured in case of a claim
Art. 75. In any compensation insurance, the insured must take all reasonable measures to prevent and mitigate the consequences of the claim.
Sanctions
Art. 76. § 1^er. If the insured person fails to meet any of the obligations set out in sections 74 and 75 and the insured person has the right to claim a reduction of the insured person's benefit, in addition to the damage he suffered.
§ 2. The insurer may decline its warranty if, in a fraudulent intent, the insured person has not fulfilled the obligations set out in sections 74 and 75.
Section V. - Stipulation for others
Stipulation for others
Art. 77. The parties may agree at any time that a third party may claim the benefit of the insurance under the conditions that they determine.
This third party must not be designated or even be designed at the time of the stipulation, but it must be determinable on the day of the requirement of insurance benefits.
The King may, on the advice of FSMA, specify the rules to which the stipulations for others must be satisfied in order to protect the rights of insured persons and of any third party having an interest in the performance of the insurance contract.
Disclosure of warranty conditions
Art. 78. An expensive beneficiary of an insurance guarantee has the right to obtain from the insurance taker or, if it fails, from the insurer, to communicate the terms and conditions of the guarantee.
Section VI. - Inexistence and modification of risk
Inexistence of risk
Art. 79. When, at the time of the conclusion of the contract, the risk does not exist or has already been realized, the insurance is zero.
The same is true for future risk insurance, if it is not born.
When, in the cases referred to in paragraph 1^er and 2, the insurance taker has contracted in bad faith or committing an inexcusable error, the insurer retains the premium for the period from the date provided for the effective date of the contract to the day on which the insurer learns the inexistence of the risk.
Risk reduction
Art. 80. When, in the course of the performance of an insurance contract other than a life insurance or health insurance contract, the risk of the insured event was reduced in a sensitive and sustainable manner to the point that, if the reduction had existed at the time of the subscription, the insurer would have consented to other conditions, the insurer is required to begin to grant a reduction in the amount of knowledge due to
If the contracting parties fail to reach an agreement on the new premium within one month of the application for a reduction made by the insurance owner, the insurance owner may terminate the contract.
Aggravation of risk
Art. 81. § 1^er. Unless it is a life insurance, health insurance or credit insurance contract, the insurance owner is required to report, in the course of a contract, under the terms of section 58, the new circumstances or changes in circumstances that are likely to result in a significant and lasting increase in the risk of the insured event.
Without prejudice to the provisions of Part 3, Title III, Chapter 2, when, in the course of the performance of an insurance contract other than a life insurance contract, health insurance or credit insurance, the risk of occurrence of the insured event has worsened so that, if the aggravation had existed at the time of the subscription, the insurer would have granted the assurance that
If the insurer proves that in no case would have insured the aggravated risk, it may terminate the contract within the same time limit.
If the proposal to amend the insurance contract is refused by the insurance licensee or if, at the end of a month after the receipt of this proposal, the insurer is not accepted, the insurer may terminate the contract within fifteen days of the expiry of the aforementioned period.
The insurer who has not terminated the contract or proposed its amendment within the time limits set out above shall no longer avail itself of the future of risk aggravation.
§ 2. If a claim arises before the contract amendment or termination has taken effect and the insurance licensee has fulfilled the obligation referred to in subsection 1^er, the insurer is required to perform the agreed benefit.
§ 3. If a claim occurs and the insurance taker has not fulfilled the obligation under subsection 1^er :
(a) the insurer is required to make the benefit agreed upon when the failure to report cannot be criticized to the insurance licensee;
(b) the insurer is only required to make its benefit based on the ratio between the premium paid and the premium that the insurance licensee should have paid if the aggravation had been taken into account, where the defect in return may be charged to the insurance licensee.
However, if the insurer demonstrates that the insurer would not have insured the aggravated risk, its claim benefit is limited to the reimbursement of all premiums paid;
(c) if the insurance taker acted in a fraudulent intent, the insurer may refuse its warranty. The premiums due until the insurer has been aware of the fraud are due to it as damages.
Section VII. - Co-insurance and aperation
Co-insurance
Art. 82. Unless otherwise agreed, co-insurance does not involve solidarity.
Apérition
Art. 83. In case of co-insurance, an aperitor must be designated in the contract. The latter is deemed to be the agent of the other insurers to receive the declarations provided by the contract and make the necessary diligence for the settlement of claims, including the determination of the amount of compensation.
As a result, the insured person may address all meanings and notifications, except those relating to a legal action against other co-insurers. If no aperitor has been designated in the contract, the insured may consider any of the co-insurers as an aperitor for the purposes of this section. However, the insured must always address the same co-insurer as an aperitor.
Section VIII. - Forms of termination
Forms of termination
Art. 84. § 1^er. The termination of the contract is done by registered letter, by exploit of a bailiff or by surrender of the letter of termination against receipt.
In the case referred to in section 71, termination is done by the notice of stay referred to in section 70.
§ 2. Except in the cases referred to in articles 57, §§ 3, 4 and 5, 71 and 86, § 1^er, termination has effect only upon the expiration of a period of a minimum month from the day after the day after the day after the date of receipt or, in the case of a recommended letter, from the day after the day after the day after the day on which it was deposited.
The period referred to in paragraph 1^er must be indicated in the contract and recalled in the certificate of termination.
Section IX. - Duration and termination of the contract
Duration of obligations
Art. 85. § 1^er. The duration of the insurance contract cannot exceed one year. Unless one of the parties opposes it, in the forms prescribed in section 84, at least three months before the conclusion of the term of the contract, the contract shall be carried forward for consecutive periods of one year.
The contract cannot impose further notice periods.
The parties may, however, terminate the contract when, between the date of its conclusion and the date of its effective date, a period exceeding one year. This termination must be notified no later than three months before the contract takes effect.
Paragraphs 1^er and 2 do not apply to capitalization transactions or to health insurance and life insurance contracts. However, regardless of the duration of these contracts, the insurance taker may terminate them each year, either on the anniversary date of the contract's course taking, or on the date of the annual premium maturity.
§ 2. The provisions of paragraph 1^er are not applicable to insurance contracts relating to the risks that the King determines.
However, the following risks cannot be excluded:
- Civil liability and vehicle body for self-propelled vehicles;
- Incendum (simple risks);
- Extra-contractual civil liability for privacy;
- personal injuries;
- Assistance;
- Legal protection.
§ 3. This section is not applicable to insurance contracts of less than one year.
Disaster termination
Art. 86. § 1^er. In cases where the insurer reserves the right to terminate the contract after a claim arises, the insurer has the same right. This termination is notified no later than one month after payment or refusal to pay the allowance.
Termination shall take effect upon the expiration of a period of not less than three months from the day after the service is served, the day after the date of the receipt or the day after the date of the filing of the recommended shipment.
When the insurance taker, the insured or the beneficiary has failed in any of the obligations arising from the occurrence of the claim in the intention of deceiving the insurer, the insurer may, at any time, terminate the insurance contract as soon as the insurer has filed a complaint, with a civil party, against one of those persons before an investigating judge or cited it before the court of judgment on the basis of articles 1996, Termination takes effect not earlier than one month from the day after service, the day after the date of receipt or the day after the date of filing of the recommended shipment.
The insurer is required to repair the damage resulting from this termination if the insurer has distracted from its action or if the public action has resulted in a dismissal or acquittal.
§ 2. In life insurance or health insurance, the insurer cannot reserve the right to terminate the disaster contract.
§ 3. In insurance covering compulsory civil liability for self-propelled vehicles, the insurer may not reserve the right to terminate the claim contract unless the insurer has paid or will have to pay compensation for injured persons, except for payments made under section 29bis of the Act of 21 November 1989 relating to the compulsory liability insurance for self-propelled vehicles.
In cases where termination is not permitted within the meaning of the preceding paragraph, the insurer's termination of a warranty annexed to the civil liability contract does not allow the insurer to invoke the provisions of section 66 to terminate the civil liability contract.
§ 4. The provisions of paragraph 1^er of this Article shall not apply to insurance contracts relating to the risks that the King determines.
However, the risks referred to in Article 85, § 2, paragraph 2, cannot be excluded.
Faillite of insurance licensee
Art. 87. In the event of an insolvency of the insurance owner, the insurance remains for the benefit of the creditors who become a debiter to the insurer of the amount of premiums to be echoed from the bankruptcy statement.
The insurer and the bankruptcy curator nevertheless have the right to terminate the contract. However, the termination of the contract by the insurer may not be done as soon as three months after the bankruptcy declaration, while the bankruptcy curator may not terminate the contract until three months after the bankruptcy declaration.
This section does not apply to personal insurance.
Section X. - Requirements
Limitation period
Art. 88. § 1^er. The limitation period for any action deriving from the insurance contract is three years. In life insurance, the period is thirty years with respect to the share of the reservation formed, on the date of termination or arrival of the term, by the premiums paid, deducted from the sums consumed.
The deadline is short from the day of the event that opens the action. However, when the person to whom the action belongs proves that he was only aware of this event at a later date, the time limit only begins to run on that date, without being able to exceed five years from the date of the event, the case of fraud excepted.
With respect to liability insurance, the short period, with respect to the recursory action of the insured against the insurer, based on the application for justice of the injured person, whether it is a claim originating from compensation, or whether it is a subsequent request then to the aggravation of the damage or the occurrence of a new injury.
In terms of personal insurance, the short period, with respect to the action of the beneficiary, from the day on which the beneficiary is aware of both the existence of the contract, its quality of beneficiary and the occurrence of the event on which the obligation of insurance benefits depends.
§ 2. Subject to specific legal provisions, the action resulting from the personal right that the injured person has against the insurer under section 150 shall be prescribed by five years from the act of causing the injury or, if there is a criminal offence from the day on which the damage was committed.
However, where the injured person proves that he or she was aware of his or her right to the insurer only at a later date, the time limit only begins to run on that date, without being able to exceed ten years from the act of causing the damage or, if there is a criminal offence, on the day the injury was committed.
§ 3. The insurer's recursory action against the insured is prescribed by three years from the day of payment by the insurer, except for fraud.
Suspension and interruption of prescription
Art. 89. § 1^er. The statute of limitations against minors, prohibited persons and other persons unable to do so does not run until the day of the majority or the lifting of the disability.
§ 2. The limitation does not run against the insured, the beneficiary or the injured person who is by force majeure in the impossibility of acting within the prescribed time limits.
§ 3. If the claim has been made in a timely manner, the limitation is terminated until the insurer has notified the decision in writing to the other party.
§ 4. The interruption or suspension of the limitation of the action of the injured person against an insured person results in the interruption or suspension of the limitation of his action against the insurer. The interruption or suspension of the limitation of the action of the injured person against the insurer results in the interruption or suspension of the limitation of the action against the insured person.
§ 5. The limitation of the action referred to in section 88, § 2, shall be interrupted as soon as the insurer is informed of the willingness of the injured person to obtain compensation for his or her injury. This interruption ceases at the time the insurer discloses in writing to the injured person his or her compensation decision or refusal.
Section XI. - Arbitration
Arbitration
Art. 90. § 1^er. The clause by which the parties to an insurance contract undertake in advance to submit to arbitrators the disputes to arise from the contract is deemed to be unwritten.
§ 2. The provisions of paragraph 1^er are not applicable to insurance contracts relating to the risks that the King determines.
However, the risks referred to in Article 85, § 2, paragraph 2, cannot be excluded.
CHAPTER 2. - Provisions specific to compensation insurance
Insurance interest
Art. 91. The insured must be able to justify an economic interest in the conservation of the thing or the integrity of the heritage.
Account insurance
Art. 92. Insurance can be subscribed for who it will belong. In this case, the insured is the one that justifies the insurance interest in the occurrence of the claim.
The exceptions inherent in the insurance contract that the insurer could oppose to the insurance taker are also subject to the insured regardless of the insured.
Extent of insurance benefit
Art. 93. The benefit due by the insurer is limited to the harm suffered by the insured.
This damage may include the deprivation of the use of the insured property as well as the lack of profit hoped.
Cumulation of different character insurances
Art. 94. Unless otherwise agreed, benefits due under an indemnity insurance contract are not diminished from benefits due under a lump-sum insurance contract.
Subrogation of insurer
Art. 95. The insurer who has paid the allowance is subrogated, up to the amount of the allowance, in the rights and shares of the insured or the beneficiary against the third parties responsible for the damage.
If, by virtue of the insured or the beneficiary, the subrogation may no longer produce its effects in favour of the insurer, the insurer may claim the restitution of the compensation paid to the extent of the injury suffered.
Subrogation may not affect the insured or recipient who would have been compensated only in part. In this case, he may exercise his rights, for what remains due, preferably to the insurer.
Except in the event of malice, the insurer has no recourse against the descendants, ascendants, spouse and direct-line allies of the insured, or against persons living in his home, hosts and members of his domestic staff. In the event of misfortune caused by minors, the King may limit the right of appeal of the insurer covering extra-contractual civil liability for privacy.
However, the insurer may appeal against such persons to the extent that their liability is effectively guaranteed by an insurance contract.
Surinsurance in good faith
Art. 96. Where the amount insured in good faith, by one or more contracts signed with the same insurer, exceeds the insurable interest, each of the parties has the right to reduce it to due competition.
Where the insured amount is divided between several contracts with several insurers, the reduction shall, in the absence of an agreement among all parties, be effected on the amounts insured by the contracts in the order of their date beginning with the most recent and may involve the termination of one or more contracts whose insured amount would thus be rendered null.
Surinsurance of bad faith
Art. 97. Where the same insurable interest is insured in bad faith for an amount too high, by one or more contracts signed with one or more insurers, contracts are void, and the insurer or insurers, if in good faith, have the right to retain the premiums collected as damages.
Sub-insurance: proportional rule
Art. 98. § 1^er. Unless otherwise agreed, if the value of the insurable interest is determinable and if the insured amount is lower, the insurer is required to provide its benefit only in the report of that amount to that value.
§ 2. The King may, for certain risks, limit or prohibit the under-insurance and application of the proportional rule.
Distribution of claims
in case of multiple contracts
Art. 99. § 1^er. If the same interest is insured against the same risk to several insurers, the insured may, in the event of a claim, claim compensation to each insurer, within the limits of each insurer's obligations, and in the amount to which the insured person is entitled.
Except in the event of fraud, none of the insurers can avail themselves of other contracts covering the same risk to refuse its warranty.
§ 2. Unless the insurers agree on another distribution method, the claim charge shall be as follows:
1° If the value of the insurable interest is determinable, the distribution is made between insurers proportionally to their respective obligations;
2° If the value of the insurable interest is not determinable, the distribution is made by equal shares between all contracts up to the maximum common amount insured by all contracts; without any longer taking into account the contracts with the guarantee actually granted to the latter amount, the possible balance of the allowance shall be divided in the same manner between the other contracts, the distribution technique being reproduced in successive instalments up to the height of the total amount of the compensation or the guarantees actually granted by the whole contract;
3° When one or more insurers cannot pay all or part of their share, it shall be distributed among other insurers in the manner provided for in 2°, but the amount insured by each individual may be exceeded.
§ 3. When one or more insurers cannot pay all or part of their assessment, the other insurers have a right of appeal against them as they have assumed additional charges.
Death of the beneficiary insurance taker of the guarantee
Art. 100. In the event of the transfer, following the death of the insurance owner, of the insured interest, the rights and obligations arising from the insurance contract are transmitted to the new holder of that interest.
However, the new holder of the insured interest and the insurer may notify the termination of the contract, the first by registered letter within three months and forty days of death, the second in the forms prescribed by section 84, § 1^erwithin three months of the day he was aware of the death.
Contracts concluded intuitu personae
Art. 101. By derogation from section 100, the contract that was entered into in consideration of the person of the insured person shall terminate the death of the insured person.
CHAPTER 3. - Formal insurance provisions
Insurance interest
Art. 102. The recipient must have a personal and legal interest in the non-insurance of the insured event.
This interest is sufficiently justified when the insured has given his consent to the contract.
Absence of subrogation
Art. 103. Unless otherwise agreed, the insurer who has performed the insured benefits is not subrogated against third parties in the rights of the insurance or beneficiary.
Cumulative benefits and benefits
Art. 104. Unless otherwise agreed, the benefits or benefits that the recipient obtains from another title do not reduce the insurer's obligations.
PART III. - Damage insurance
CHAPTER 1^er. - General provisions
Compensation principle
Art. 105. Any damage insurance has an indemnity.
Rescue costs
Art. 106. The costs arising from both the measures requested by the insurer to prevent or mitigate the consequences of the disaster and the urgent and reasonable measures taken by the insured person to prevent the disaster in the event of imminent danger or, if the disaster has commenced, to prevent or mitigate the consequences of the loss, are borne by the insurer when exposed in good family father, even if the due diligences made would have been incurred. They are at its expense even beyond the insured amount.
The King may, for liability insurance contracts other than that referred to in the Act of November 21, 1989 relating to compulsory liability insurance for self-propelled vehicles and for insurance contracts, limit the costs referred to in paragraph 1^er of this article.
CHAPTER 2. - Business insurance contracts
Section I^re. - Common provisions
to all assurance of things
Sub-section 1^re. - Insurable value
Assessment methods
Art. 107. The parties may determine how the assets must be assessed for their insurance. By derogation from section 93, they may agree on a value of reconstruction, reconstruction or replacement, even without deducing the depreciation resulting from the vetusity.
Fixation of insured amount
Art. 108. The insured amount is fixed by the insurance holder. This amount is supposed to be equal to the value of the insurable interest if it is fixed in accordance with the insurer's agent.
The parties may agree that this amount will be adjusted in full accordance with the criteria they determine.
Approved value
Art. 109. The parties may expressly agree on the value they intend to allocate to specific property. This value commits them, except fraud.
If the insured property in a registered value is lost a significant portion of its value, each of the parties is nevertheless entitled to reduce the amount of the approved value or to terminate the contract.
Sub-section 2. - Obligations of the insured
State of the premises
Art. 110. The insured person may not, by his or her own authority, make unnecessarily necessary amendments to the damaged property to make it impossible or more difficult to determine the causes of the loss or to estimate the damage.
If the insured does not meet the obligation referred to in paragraph 1^er and, as a result, harm to the insurer, the insurer has the right to claim a reduction in its performance in the amount of prejudice that the insurer has suffered or to claim damages.
The insurer may decline its warranty if, in fraudulent intent, the insured person has not fulfilled the obligation referred to in paragraph 1^er.
Subsection 3. - Shut up.
Breaking in the heart of an assured thing
Art. 111. § 1^er. In the event of a transfer between livers of a building, the insurance ends in full right three months after the date of the authentic act.
Until the expiry of the period referred to in paragraph 1^er, the guarantee granted to the assignor is acquired to the assignee, unless the assignee is guaranteed by another contract.
§ 2. In the event of a transfer of a piece of furniture, the insurance shall terminate in full right as soon as the insured has no ownership of the property, unless the parties to the insurance contract agree on another date.
Sub-section 4. - Payment of the indemnity and privilege of the insurer
Preferred credits and mortgages
Art. 112. To the extent that compensation due to the loss or deterioration of a property is not fully applied to the repair or replacement of that property, it is assigned to the payment of privileged or mortgage claims, according to the rank of each property.
However, the payment of compensation to the insured person releases the insurer if creditors whose privilege is not the subject of an advertisement did not have previously filed opposition.
Paragraphs 1^er and 2 do not affect the legal provisions relating to direct actions against the insurer in particular cases.
Faillite of the insured
Art. 113. In the event of a bankruptcy of the insured, the allowance returns to the bankrupt mass. If, however, certain insured assets are elusive, the allowance payable under the insurance contract for these assets is the bankrupt.
Privilege of insurer
Art. 114. The insurer has a privilege on the insured thing for the premium for the period during which the insurer actually covered the risk. The privilege does not exist, regardless of the payment terms of the premium, only for an amount equal to two annual premiums.
This privilege is exempt from registration. It takes place immediately after that of court fees.
Section II. - Provisions specific to certain insurances
Sub-section 1^re. - Fire insurance
Normal
Art. 115. Unless otherwise agreed, fire insurance guarantees the property insured against the damage caused by the fire, by lightning, by explosion, implosion, as well as by the fall or clash of air navigation devices or objects that fall or are projected and by the collision of any other vehicle or animal.
Warranty extensions
Art. 116. Even when the loss occurs outside the insured property, the insurance guarantee extends to the damage caused to the insured by:
1° relief or any suitable means of extinction, preservation or rescue;
2° the ordered demolitions or destruction to stop the progress of a disaster;
3° the discharges resulting directly and exclusively from a loss;
4° spontaneous fermentation or combustion followed by fire or explosion.
Furniture insurance
Art. 117. The insured furniture that fills all or part of a building includes, in addition to the insured, that of all persons living in his home, the insurance lessee being deemed to have subscribed to their profit.
However, the parties may agree to exclude certain furniture determined in the contract.
Related liability insurance
Art. 118. Unless otherwise agreed, the liability insurance incurred as a result of a claim to property designated by the contract and whose cause or purpose is referred to in sections 115 to 117 does not cover any damage resulting from bodily injury.
Exclusive clauses
Art. 119. The insurer cannot oblige the insurance taker to ensure by it:
1° the increase in insured amounts;
2° damage other than those initially guaranteed.
Paragraph 1^er does not affect the application of section 108, paragraph 2.
Rights of privileged and mortgage creditors
Art. 120. § 1^er. No exception or termination of a claim arising from a claim may be opposed by the insurer to the creditor enjoying on the insured property of a right of preference known to the insurer.
§ 2. The suspension of the insurer's warranty, the reduction in the amount of insurance and the termination of the contract shall be subject to the creditors referred to in paragraph 1^er.
However, if one of these creditors has notified the insurer of the existence of his or her right of preference, the suspension, reduction or termination will only be enforceable upon the expiration of the one-month period from the notification that the insurer does so by registered letter. The deadline begins on the day after the letter was filed.
When the suspension or termination has occurred as a result of the non-payment of the premium by the insurance licensee, the creditor may avoid its consequences by paying, in the month of the insurer's notification, accrued premiums increased if interest and legal recovery costs arise.
Payment of compensation
Art. 121. § 1^er. The parties may agree that compensation is payable only as the reconstruction or reconstruction of insured property is completed.
The failure to rebuild or replenish the said assets for a foreign cause to the will of the insured is without effect on the calculation of the compensation, except that it renders the value clause to nine unenforceable.
§ 2. With respect to the simple risks defined by the King, compensation is paid as follows:
1° the insurer shall pay the amount to cover the rehousing costs and other costs of first necessity not later than fifteen days after the date of the disclosure of the evidence that such costs have been incurred;
2° the insurer shall pay the portion of the indisputably owed allowance agreed between the parties within thirty days of the agreement. In the event of a challenge to the amount of compensation, the insured shall designate an expert who shall determine the amount of compensation in consultation with the insurer. In the absence of an agreement, the two experts designate a third expert. The final decision on the amount of compensation is then taken by experts by a majority of votes. The costs of the expert designated by the insured and, where applicable, the third expert are advanced by the insurer and are borne by the party to which he was not right.
The completion of the expertise or the determination of the amount of the damage must take place within noon days after the date on which the insured person informed the insurer of the designation of the expert. The compensation must be paid within 30 days of the closing date of the expertise or, if not, the date of the determination of the amount of the damage;
3° in the event of reconstruction or reconstruction of damages, the insurer is required to pay to the insured within 30 days of the date of completion of the expertise or, if not, the date of the determination of the amount of damage, a first instalment equal to the minimum allowance set out in paragraph 4, 1°, b).
The remainder of the allowance may be paid in instalments as the reconstruction or replenishment progresses, provided that the previous instalment is exhausted.
The parties may agree after the claim another distribution of the payment of compensation instalments;
4° in the event of a replacement of the building affected by the acquisition of another building, the insurer is required to pay to the insured within 30 days of the closing date of the expertise or, in the absence of expertise, the determination of the amount of the damage, a first instalment equal to the minimum allowance set out in paragraph 4, 1°, b).
The balance is paid to the passation of the authentic act of acquisition of the replacement property;
5° in all other cases, the allowance shall be payable within 30 days after the closing date of the expertise or by default the date of the determination of the amount of the damage;
6° the closing of the expertise or the estimate of the damage referred to in 3°, 4° and 5° above shall take place in the nounting days after the date of the claim.
§ 3. The time limits provided for in paragraph 2 shall be suspended in the following cases:
1° The insured did not fulfill, on the closing date of the expertise, all the obligations under the insurance contract. In this case, the deadlines begin to run only the day after the insured has fulfilled the said contractual obligations;
2° This is a flight or there are presumptions that the claim may be due to an intentional fact in the head of the insured or the beneficiary of insurance. In this case, the insurer may reserve the right to withdraw a copy of the repressive file. The request for authorization to take note of the request must be made no later than 30 days after the close of the expertise ordered by him. The eventual payment must take place within 30 days when the insurer has been aware of the findings of the said file, provided that the insured or the beneficiary, who claims compensation, is not prosecuted in criminal cases;
3° The disaster is due to a natural disaster defined in subsection 2 of this section. In this case, the Minister who has the Economic Affairs in his office may extend the deadlines set out in paragraph 2, 1°, 2° and 6°;
4° The insurer has communicated in writing to the insured the reasons independent of his will and that of his agents, which prevent the termination of the expertise or the estimation of the damages referred to in paragraph 2, 6°.
§ 4. 1°. Without prejudice to the application of the other provisions of this Act that reduce the allowance, the allowance referred to in subsection 2 cannot be less:
(a) in the case of a nine-value insurance, where the insured person reconstructs, reconstitutes or replaces the affected property, 100% of that nine-value, in accordance with paragraph 5.
However, if the cost of reconstruction, replenishment or replacement value is less than the compensation for the disasterd property calculated in value to nine on the day of the claim, the allowance is at least equal to that value of reconstruction, replenishment or replacement of 80% of the difference between the original compensation provided and that value of reconstruction, replenishment or replacement deducted from the percentage of the affected property
(b) in the case of a new value insurance, where the insured person does not rebuild, reconstitute or replace the affected property, 80% of that value to nine, as determined in paragraph 5;
(c) in the case of insurance in another value, 100% of that value;
2° in the case of reconstruction, reconstruction or replacement of the damaged property, the allowance referred to in paragraph 2 shall include all taxes and duties generally of any kind;
3° if the contract includes an automatic adaptation formula, the compensation for the damaged building, calculated on the day of the claim, diminished of the already paid allowance, is increased according to the possible increase of the last index known at the time of the claim, during the normal period of reconstruction that begins to run on the date of the claim without the total compensation so increased may exceed 120 % of the compensation initially fixed
§ 5. In the case of a nine-value insurance, the value of a damaged property or the affected part of a property may only be deducted if it exceeds 30% of the value to nine.
§ 6. Paragraphs 1^er4 and 5 do not apply to liability insurance.
§ 7. In the event of non-compliance with the time limits referred to in paragraph 2, the portion of the allowance that is not paid within the time limits shall be of full interest to double the rate of legal interest as of the day after the expiry of the period until the effective payment, unless the insurer proves that the delay is not attributable to himself or to one of its agents.
Proprietary right of the owner and third parties
Art. 122. The compensation payable by the rental liability insurer is devolved, both in the case of rental and sub-location, to the owner of the leased property, excluding other creditors of the tenant or sub-locatary.
The compensation payable by the third party's recourse insurer is paid exclusively to third parties.
The owner and third parties have a specific right against the insurer.
Sub-section 2. - Natural disaster insurance for simple risks
Coverage of natural disasters
Art. 123. The insurer of the fire risk insurance contract that covers the simple risks as defined in accordance with section 121, § 2, must issue the guarantee of the natural disasters listed below under the conditions specified in this subsection:
(a) the earthquake;
(b) flooding;
(c) overflow or refoulement of public sewers;
(d) landslide or weakening.
Any suspension, invalidity, expiry or termination of the guarantee of natural disasters shall, in full right, result from the guarantee of the fire hazard. Similarly, any suspension, invalidity, expiry or termination of the guarantee for the fire hazard shall entail the guarantee of natural disasters.
All of the hazards covered by this subsection form a single guarantee that cannot be limited to a quotity of the amounts that are insured on the building and the content only according to the rules determined by the King.
Unless otherwise provided, the provisions of subsection 1 shall apply to the warranty referred to in this subsection.
Natural disaster: definition
Art. 124. § 1^er. Natural disaster means:
(a) an inundation, i.e. an overflow of watercourses, canals, lakes, ponds or seas as a result of atmospheric precipitation, a runoff of water resulting from the lack of soil absorption due to atmospheric precipitation, a melting of snow or ice, a break of dams or a wave of land, as well as landslides
b) an earthquake of natural origin that
- destroyed, broken or damaged insurable property against this peril within 10 kilometres of the insured building;
- or was recorded with a minimum magnitude of 4 degrees on the Richter scale,
as well as the resulting floods, overflows and refoulement of public sewers, slips and landslides;
(c) an overflow or refoulement of public sewers caused by floods, atmospheric precipitation, storm, snow or ice casting or flooding;
(d) a landslide or a landslide, i.e. a movement of a large mass of land that destroys or damages property, due in whole or in part to a natural phenomenon other than flooding or earthquake.
§ 2. May be used to identify natural disasters referred to in paragraph 1^er(a) to (d), measures carried out by competent public institutions or, in the absence of private institutions, which have the required scientific competence.
§ 3. The King may, by order deliberately in the Council of Ministers, extend the list of natural disasters referred to in paragraph 1^er.
Natural disaster: uniqueness
Art. 125. § 1^er. It is considered to be a single earthquake, the initial earthquake and its reply within 72 hours, as well as the insured perils that result directly.
§ 2. The initial overflow of a stream of water, a canal, a lake, a pond or a sea, and any overflow occurred within 168 hours of the overflow, i.e. the return of this stream of water, canal, lake, pond or sea, is the result of this lake, pond or sea within its usual limits.
Scope of guarantee
Art. 126. The guarantee covers at least:
(a) damage caused directly to property insured by a natural disaster as defined in section 124 or an insured hazard that results directly, including fire, explosion, including explosives, and implosion;
(b) damage to insured property that would result from measures taken in the above-mentioned case by a legally constituted authority for the safeguarding and protection of property and persons, including floods resulting from the opening or destruction of locks, dams or dams in order to avoid a possible flood or the extension of the lock;
(c) costs of removal and demolition required for the reconstruction or reconstruction of damaged insured property;
(d) for dwellings, the rehousing costs incurred during the three months following the occurrence of the disaster when the residential premises have become uninhabitable.
The King may impose additional minimum conditions for the guarantee.
General
Art. 127. § 1^er. In principle excluded from the warranty referred to in this subsection, except as expressly stipulated in the insurance contract, non-granted crops, out-of-building live livestock, soils, crops and forest lands.
§ 2. may be excluded from the warranty under this subsection:
(a) objects located outside the buildings unless they are permanently fixed;
(b) constructions that are easy to move or dismantle, dilapidated or in the process of demolition and their potential content, unless these constructions constitute the principal dwelling of the insured;
(c) garden sheds, sheds, sheds and their possible contents, fences and hedges of any kind, gardens, plantations, access and courses, terraces, as well as sumptuous properties such as swimming pools, tennis and golf;
(d) buildings or parts of buildings under construction, processing or repair and their potential content, unless they are inhabited or normally habitable;
(e) Ground, air, sea, lake and river vehicles;
(f) goods transported;
(g) property whose damages are caused by special laws or international conventions;
(h) damage caused by any ionizing radiation source;
(i) theft, vandalism, property and securities degradations committed during a flight or attempted theft and acts of malicious acts made possible or facilitated by a covered disaster.
§ 3. The King may specify the exclusions referred to in the preceding paragraphs.
Exclusions for peril flooding and overflows and public sewage discharges
Art. 128. may be excluded from the warranty referred to in this subsection but only with respect to the perilous flooding and overflowing of public sewers, damage to the contents of the cellars stored less than 10 cm from the ground, except for heating, electricity and water installations that are permanently attached to it.
By cellar, it is understood that any local area whose soil is located more than 50 cm below the level of the main entrance to the living rooms of the building that contains it, with the exception of the cellars permanently fitted in living rooms or for the exercise of a profession.
Risk areas
Art. 129. § 1^er. At-risk areas mean areas that have been or may be exposed to repetitive and significant flooding.
§ 2. The King determines, in agreement with the regions, the criteria on which they must formulate their proposals for delimitation of risk areas.
The King then defines risk zones.
It can only extend or reduce risk areas in agreement with the regions. It also sets out the modalities for the publication of risk zones.
§ 3. By derogation from section 123, paragraph 3, the insurer of the fire risk insurance contract may refuse to issue a flood cover when it covers a building, part of a building or the contents of a building that has been built more than eighteen months after the date of publication to the Belgian Monitor of the Royal Order classifying the area where the building is located as a risk zone in accordance with paragraph 2.
The property referred to in the preceding paragraph is the property under construction, processing or repair that is permanently closed with doors and windows that are permanently and fully covered.
This exemption is also applicable to land extensions of existing property prior to the classification date referred to in paragraph 1^er.
This exemption is not applicable to property or parts of property that are rebuilt or reconstituted after a disaster and that correspond to the value of reconstruction or replenishment of property prior to the disaster.
§ 4. Information on the fact that a property is located in a risk area is provided:
- by the acquisition committee or notary, in the authentic act, in the event of a translative act of real law on a real property;
- by the architect, in writing in the contract, in case of construction, restoration or extension of a real estate;
- by the assignor, in writing in the contract, in case of a translative act of real law on a real property;
- by the lessor, in writing, in the contract or a specific document, for real property given for rent and erected after the delimitation of risk areas;
- by agents designated for that purpose by the King;
- by the municipal authorities with regard to the risk areas located in their territory.
Payment of compensation
Art. 130. § 1^er. Except as provided in paragraph 2, the allowance shall be paid under the provisions of section 121.
The insurance contract cannot apply, for natural disasters and other exceptional hazards, a deductible greater than 610 euros per disaster. This amount is linked to the evolution of the Consumer Price Index, the base index being December 1983, or 119.64 (Base 1981 = 100).
§ 2. The insurer may limit the total amount of compensation that the insurer will have to pay in the event of a natural disaster at the lowest amount of those obtained by applying the following formulas:
(a) (0.45 x D + 0.05 x S) with a minimum of 2.000.000 euros;
(b) (1.05 x 0.45 x D) with a minimum of 2.000.000 euros;
where:
P is the encumberment of premiums and accessories, excluding acquisition fees and commissions, for fire guarantees and related hazards plus electricity of the simple risks referred to in section 121, § 2, encumbered by the insurer during the accounting period prior to the claim;
S is the amount of compensation payable by the insurer for a natural disaster other than an earthquake exceeding the amount of 0.45 x P.
In the case of an earthquake, the insurer may limit the total of the allowances it will have to pay to the lesser amount than those obtained by applying the following formulas:
(a) (1.20 x D + 0.05 x S') with a minimum of 2.000.000 euros;
(b) (1.05 x 1.20 x D) with a minimum of 2.000.000 euros;
where:
P is the encumberment of premiums and accessories, excluding acquisition fees and commissions, for fire guarantees and related hazards plus electricity of the simple risks referred to in section 121, § 2, encumbered by the insurer during the accounting period prior to the claim;
This is the amount of compensation payable by the insurer for an earthquake exceeding 1.20 x P.
The amount of 2.000.000 euros, referred to in this paragraph, is indexed in accordance with the prescription of Article 19, § 3, of the Royal Decree of 22 February 1991 concerning the general regulation of the control of insurance companies and published by the Bank.
§ 3. When an insurer applies the provisions of the preceding paragraph, the compensation that it must pay under each of the insurance contracts that it has entered into is reduced to competition when the limits prescribed in section 34-3, paragraph 3, of the Act of 12 July 1976 relating to the repair of certain damage caused to private property by natural calamities are exceeded.
Pricing Office
Art. 131. § 1^er. In order to ensure the coverage of the risks covered by this subsection, the King shall establish a Pricing Office to specify the tariff conditions for risks that do not find coverage. Except in the cases referred to in section 129, § 3, an insurance applicant shall have access to the tariff conditions of the Pricing Bureau in accordance with the provisions of paragraph 2.
The King sets the effective date of the Bureau.
The Pricing Office is not considered an insurance intermediary within the meaning of section 5, 20°.
§ 2. The insurer, who refuses an insurance applicant or proposes a premium or a deductible that exceeds the Bureau's tariff conditions, must give initiative to the insurance applicants the tariff conditions of the Pricing Bureau and simultaneously inform the insurance applicant that it may eventually address another insurer.
§ 3. The Bureau consists of four members representing insurance companies and four members representing consumers, appointed by the King for a term of six years.
Members of the Bureau are selected from a double list presented by professional associations of insurance companies and by associations likely to represent the interests of consumers.
The King appoints, for a term of six years, a president who does not belong to the previous categories.
The King sets out the allowances to which the President and the members of the pricing office are entitled.
The King also designates for each member an alternate. Alternates are chosen in the same way as the actual members.
The Bureau may join non-deliberative experts.
Ministers with the Economy, the Interior and the Protection of Consumers in their responsibilities may delegate an observer to the Bureau.
Unless the King decides otherwise, the Bureau shall carry out its activities within the framework of the National Caisse des Calamités referred to in section 35 of the Act of 12 July 1976 on the repair of certain damage caused to private property by natural calamities, which shall provide the secretariat and day-to-day management.
§ 4. The King determines the operating conditions of the Office and the obligations of insurers.
§ 5. The risks of natural disasters that are tariffed on the Bureau's terms are ensured by all insurers performing simple risk fire insurance in Belgium. The management of these risks is carried out by the insurer of the fire risk insurance contract, which is a simple risk of the insurance owner or, if not, by another insurer selected by the insurance applicant in this set of insurers that cover the simple fire risks in Belgium. The result of this management as well as the Bureau's operating costs are distributed among insurers who practise fire insurance simple risks in Belgium.
§ 6. The Office reports annually on its operation. This report includes an analysis of the tariff conditions applied by insurers. It is transmitted promptly to the Federal Legislative Chambers.
Natural Disaster Compensation Fund
Art. 132. § 1^er. The King agrees, under the conditions it determines, a Natural Disaster Compensation Fund, as described below as the Compensation Fund, which is responsible for setting the key to the distribution of the burden of claims whose risks have been tariffed under the terms of the Bureau, between all insurers who offer in Belgium the assurance of fire risks.
The King may also entrust to the Compensation Fund, as part of the coverage of natural disasters, a coordination mission between an insurer and the National Fund of Calamities.
§ 2. The King approves the statutes and regulates the control of the activities of the Compensation Fund. It indicates the acts that must be published in the Belgian Monitor. If necessary, the King creates the Compensation Fund.
§ 3. Insurers who practise fire risk insurance in Belgium are jointly and severally obliged to make the necessary payments to the Compensation Fund for the performance of its mission and to support its operating costs.
If the Compensation Fund is created by the King, a Royal Decree sets out annually the rules for calculating payments to be made by insurers.
§ 4. The approval shall be withdrawn if the Compensation Fund does not act in accordance with the laws, regulations or its statutes.
In this case, the King may take all measures to safeguard the rights of insurance takers, insured persons and injured persons.
The Compensation Fund shall remain subject to control during the liquidation period.
The King appoints a special liquidator for this liquidation.
Subsection 3. - Crop insurance
Disaster termination
Art. 133. By derogation from section 86, where in respect of crop insurance, the insurer has reserved the right to terminate the contract after the occurrence of a claim, this termination may only have effect upon the expiry of the normal harvest period.
Sub-section 4. - Credit insurance and credit insurance
Scope
Art. 134. This subsection applies to insurance contracts that are intended to ensure the insured against the risks of non-payment of receivables and other risks that are assimilable and that are determined by the King.
Unapplicable or suppletive legal provisions
Art. 135. Sections 57, 60, 81, 85, 86, 87, 90 and 95 are not applicable to credit and credit insurance.
Sections 66, paragraphs 2 and 3, and 80 are supplementary with respect to credit insurance and credit insurance.
Exclusions
Art. 136. This Part is not applicable:
1° to credit insurance and credit insurance that guarantees claims on the foreign country;
2° to the assurances that fall under the responsibility of the National Office of the Ducroire and that the latter issue directly or indirectly on behalf of or with the guarantee of the State pursuant to the law of 31 August 1939 on the National Office of the Ducroire.
Final refusal of guarantee
Art. 137. By derogation from sections 71, paragraph 2, and 72, where the insurance taker does not make the payment of the premiums due in the month of the summation to pay, the insurer has the ability to permanently refuse its guarantee; in this case, the insurance taker remains liable for the payment of the accrued premiums.
Unintentional omission or inaccuracy in risk reporting and increased risk
Art. 138. Unless otherwise provided, the following rules apply:
§ 1^er. When the omission or inaccuracy in the return is not intentional, the insurer may reduce its benefit in the relationship between the premium paid and the premium that the insurance licensee should have paid if it had regularly reported the risk. However, the insurer may decline its warranty if it determines that it would not have assured the actual risk in any way. In this case, he returns the bonus.
If an unknown circumstance of both parties at the conclusion of the contract is to be known during the performance of the contract, paragraph 2 will be applied if the said circumstance constitutes an aggravation of the insured risk.
§ 2. When, during the performance of a contract, the risk of an insured event has increased, the insurance taker must immediately make the statement to the insurer.
If a claim arises and the insurance taker failed, in a fraudulent intent, to declare the aggravation, the insurer has the right to decline any warranty and to retain the premium.
If the insurance taker is in good faith, the insurer may reduce the benefit according to the ratio between the premium paid and the premium that the insurance taker should have paid if the aggravation had been taken into consideration. However, the insurer may decline its warranty if it determines that it would not have insured the aggravated risk. In that case, he returns the bonus.
Relief from insurer
Art. 139. All the rights and shares of the insured in respect of the claim under the insurance are transferred to the insurer who compensated, even partially, the insured.
Sections 1689 to 1701 and 2075 of the Civil Code are not applicable to the transfer of rights and shares referred to in paragraph 1^er.
Unless otherwise agreed, all amounts recovered after loss are distributed between the insurer and the insured proportionally to their respective shares in the loss.
If, by virtue of the insured, the transfer can no longer produce its effects in favour of the insurer, the insurer may claim the restitution of the compensation paid to the extent of the harm suffered.
Termination of contract rights and obligations
Art. 140. The transfer to a third party of the rights and obligations arising from a credit or credit insurance contract is only enforceable if the insurer has given its consent in writing.
CHAPTER 3. - Liability insurance contracts
Scope
Art. 141. This chapter is applicable to insurance contracts that are intended to guarantee the insured against any claim for compensation based on the occurrence of damage provided for in the contract, and to hold, within the limits of the guarantee, its property indemnifies any debt arising from an established liability.
Obligations of the insurer after the expiration of the contract
Art. 142. § 1^er. The insurance guarantee covers the damage that occurred during the contract period and extends to claims made after the end of the contract.
§ 2. For the branches of general civil liability, other than civil liability for self-propelled vehicles, which the King determines, the parties may agree that the insurance guarantee deals solely with the claims for compensation made in writing against the insured or insurer for the duration of the contract for damage incurred during that same period.
In this case, are also considered, provided that they are made in writing against the insured or insurer within thirty-six months of the end of the contract, the claims for compensation that relate to:
- a damage that occurred during the duration of this contract if, at the end of this contract, the risk is not covered by another insurer;
- acts or facts that may result in damage, occurring and reported to the insurer for the duration of the contract.
Litigation Branch
Art. 143. From the time the insurer's warranty is due, and to the extent that it is appealed, the insurer has an obligation to make and cause the insured within the limits of the warranty.
With respect to civil interests, and to the extent that the interests of the insurer and the insured coincide, the insurer has the right to combat, instead of the insured, the claim of the injured person. He can compensate the latter if necessary.
These interventions by the insurer do not involve any recognition of liability in the head of the insured and cannot cause harm to him.
Transmission of parts
Art. 144. Any judicial or non-judicial act relating to a claim must be forwarded to the insurer upon notification, service or surrender to the insured, in the event of negligence, of any damages and interests caused to the insurer in compensation for the damage he suffered.
Failure to appear
Art. 145. Where by negligence the insured person does not appear or submit to an instruction ordered by the court, the insured person must repair the harm suffered by the insurer.
Payment by insurer of principal, interest and expenses
Art. 146. In addition to the guarantee, the insurer pays the principal compensation.
The insurer pays, even beyond the limits of the warranty, the principal liability interest.
The insurer shall pay, even beyond the limits of the guarantee, the costs of civil actions and the fees and expenses of lawyers and experts, but only to the extent that such costs were incurred by the insurer or the agreement or, in the event of a conflict of interest that is not attributable to the insured, provided that such costs were not incurred unreasonably.
The King may, for the risks covered in liability insurance contracts other than that covered by the Act of November 21, 1989 relating to the compulsory liability insurance for self-propelled vehicles, limit the interests and costs referred to in paragraphs 2 and 3.
Free provision of compensation
Art. 147. The injured person freely disposes of the indemnity due by the insurer. The amount of this allowance may not vary depending on the use of the injured person.
Leave for account balance
Art. 148. A partial account balance or balance of any account does not imply that the injured person waives his or her rights.
A balance of any account must include the elements of the damage to which the account is concerned.
Compensation by the insured
Art. 149. Compensation or promise of compensation for the injured person made by the insured without the insurer's consent is not enforceable to the insured person.
The acknowledgement of the materiality of a fact or the care by the insured of the first monetary aid and immediate medical care cannot constitute a cause of refusal of guarantee by the insurer.
Personal right of the injured person
Art. 150. Insurance creates a right for the benefit of the injured person against the insurer.
The indemnity due by the insurer is acquired to the injured person, excluding other creditors of the insured.
If there are several injured persons and if the total amount of compensation due exceeds the insured amount, the rights of the injured persons against the insurer are reduced proportionally to the amount. However, the insurer who has paid in good faith to an injured person an amount greater than his or her share, because he or she did not know the existence of other claims, remains held to the other injured persons only in the amount insured.
Opposability of exceptions, nullities and due dates
Art. 151. § 1^er. In the compulsory insurance of civil liability, the exceptions, deductibles, nullities and voids deriving from the law or contract, and finding their cause in an earlier or post-disaster case, are unopposable to the injured person.
However, the injured person may be subject to the cancellation, termination, expiration or suspension of the contract, which occurred prior to the occurrence of the claim.
§ 2. For other categories of civil liability insurance, the insurer may not object to the injured person except the exceptions, nullities and dismisses deriving from the law or the contract and finding their cause in an event prior to the claim.
The King may, however, extend the scope of paragraph 1^er the categories of non-mandatory civil liability insurance that He determines.
The insurer's right to appeal against the insurance licensee
Art. 152. The insurer may reserve a right of appeal against the insurance owner and, if applicable, against the insured other than the insurance taker on the share of responsibility of the insured person, to the extent that the insurer could have refused or reduced its benefits under the law or the insurance contract.
In the event of loss of the right of appeal, the insurer has an obligation to notify the insurer, if applicable, to the insured other than the insurance licensee, of his intention to make an appeal as soon as he is aware of the facts justifying that decision.
The King may limit the appeal in the cases and to the extent it determines.
Interventions in the proceedings
Art. 153. § 1^er. No judgment is enforceable to the insurer, the insured or the injured person only if they have been present or called to the proceeding.
However, the judgment rendered in a proceeding between the injured person and the insured person is enforceable against the insurer, if it is determined that he has, in fact, assumed the direction of the trial.
§ 2. The insurer may intervene voluntarily in the proceedings brought by the injured person against the insured person.
The insured person may voluntarily intervene in the proceedings brought by the injured person against the insurer.
§ 3. The insurer may call the insured to the case in the proceedings brought by the injured person.
The insured person may call the insurer to the case in the proceedings brought to him by the injured person.
§ 4. The insurance taker, if other than the insured, may intervene voluntarily or be challenged in any proceedings against the insurer or the insured.
§ 5. When the trial against the insured person is brought before the criminal court, the insurer may be challenged by the injured person or the insured person and may intervene voluntarily, under the same conditions as if the trial was brought before the civil court, but the repressive court may rule on the rights that the insurer may claim against the insured person or the insurance provider.
CHAPTER 4. - Legal protection insurance contracts
Scope
Art. 154. Sections 155 to 157 apply to insurance contracts by which the insurer undertakes to provide services and to take charge of fees in order to allow the insured to assert his or her rights as an applicant or defendant, either in judicial, administrative or other proceedings, or outside any proceedings.
The defence of the insured by the liability insurer under sections 143 and 146 is not covered by sections 155 to 157.
Amendments and criminal transactions
Art. 155. No fines or criminal transactions may be subject to an insurance contract, with the exception of those who are in charge of the civilly responsible person and who are unrelated to the laws and enforcement orders relating to road traffic or road transport.
Free choice of advice
Art. 156. Any legal protection insurance contract expressly states that:
1° where judicial or administrative proceedings are required, the insured person has the right to choose to defend, represent or serve his interests, a lawyer or any other person who has the qualifications required by the law applicable to the proceedings;
2° each time a conflict of interest arises with its insurer, the insured person has the right to choose, for the defence of his interests, a lawyer or, if he prefers, any other person with the qualifications required by the law applicable to the proceedings.
Right of insurer to refuse its warranty
Art. 157. Without prejudice to the possibility of a legal proceeding, the insured person may consult with a lawyer of his or her choice, in the event of a discrepancy with his or her insurer with respect to the attitude to be taken to resolve the claim and after notification by the insurer of his or her point of view or refusal to follow the insured's thesis.
If the lawyer confirms the insurer's position, the insured person is reimbursed for half of the fees and expenses of the consultation.
If, against the advice of this lawyer, the insured person initiates a procedure at his or her expense and obtains a better result than the one he or she would have obtained if he had accepted the insurer's point of view, the insurer who did not wish to follow the insured's thesis is required to provide his or her guarantee and to reimburse the costs of the consultation that would have remained in charge of the insured.
If the lawyer consulted confirms the insured's thesis, the insurer is required, regardless of the outcome of the proceedings, to provide its guarantee including the fees and fees of the consultation.
PART IV. - Insurance of people
CHAPTER 1^er. - Common provisions
Police name
Art. 158. The policy must be established on behalf of the insurance licensee; it can't be orderly, or bearer.
Low-age child insurance
Art. 159. The King may impose special conditions for insurance that provide for benefits in the event of the birth of a dead-born person or death of a person under five years of age.
CHAPTER 2. - Life insurance contracts
Section I^re. - General provisions
Scope
Art. 160. This chapter applies to all insurance contracts for persons in which the occurrence of the insured event depends only on the duration of human life, even when the parties' reciprocal benefits were assessed by them without taking into account the laws of occurrence. These insurances are deemed to be of a flat nature only. Sections 167 and 178 are also applicable to capitalization operations.
The King may, by order deliberately in the Council of Ministers, take on the advice of the MSDS and the Bank, state the provisions of this chapter that are not applicable to the life insurances that He designates and specify the rules that apply to them in place and place.
Cumul and absence of subrogation
Art. 161. For the purposes of this chapter, the contrary convention authorized by sections 103 and 104 is void.
Section II. - Risk insured
Incontestability
Art. 162. As soon as the life insurance contract is effective, the insurer may no longer invoke unintentional omissions or inaccuracies in the statements of the insurance or insured person.
The King may authorize the parties to defer incontestability under the conditions it determines.
Error about the age of the insured
Art. 163. If the insured age is inaccurately declared, the benefits of each party are increased or reduced depending on the actual age that should have been taken into consideration.
Excluded risks
Art. 164. § 1^er. Unless otherwise agreed, the insurance does not cover the suicide of the insured person that occurred less than a year after the contract took effect. The insurance covers suicide that occurred a year or more than a year after the contract took effect. Proof of suicide lies with the insurer.
§ 2. Unless otherwise agreed, the insurer does not guarantee the death of the insured:
1° where this death results from the execution of a judicial sentence to the death penalty;
2° where he has for immediate and direct cause an intentional crime or offence of which the insured person is a perpetrator or co-author and of which he has been able to predict the consequences.
Excluded risk
Art. 165. In the event of death of the insured as a result of an excluded risk, the insurer pays the beneficiary the proceeds of the capitalization of the paid premiums for the period after the date of death and limited to the benefit insured in the event of death.
Section III. - Payment of premiums and taking effect of the contract
Payment of the first premium
Art. 166. Unless otherwise agreed, the life insurance contract only produces its effects from the day the first premium is paid.
Failure to pay a premium
Art. 167. The failure to pay a premium does not result in any forced enforcement action by the insurer; it only entails, according to the rules set by the King, the termination of the contract or the reduction of the insurer's benefits.
Obligation to pay premiums
Art. 168. The insurance taker may, by an agreement other than the life insurance contract he has entered into, commit to remain in the ties of the latter contract by paying the premiums.
Section IV. - Rights of the insurance owner
(a) Recipient allocation
Recipient designation
Art. 169. § 1^er. The insurance taker has the right to designate one or more beneficiaries. This right belongs to it on an exclusive basis and cannot be exercised either by its spouse or by its legal representatives or by its heirs or cause or by its creditors.
The proof of the beneficiary's right is established in accordance with section 64.
§ 2. The recipient must be a person whose identity is determinable when the insured benefits become payable.
§ 3. The insurer is released from any obligation when it has made the payment to the recipient in good faith before receipt of any writing amending the designation.
Absence of recipient
Art. 170. Where the insurance does not include a beneficiary designation or a beneficiary designation that may be effective, or where the beneficiary's designation has been revoked, the insurance benefits are payable to the insurance lessee or to the estate of the insurance lessee.
Appointment of spouse
Art. 171. When the spouse is appointed as a beneficiary and, after the divorce, he or she remains a beneficiary within the meaning of section 193 or section 196, the benefit of the contract shall be maintained to the spouse in the event of re-marriage of the insurance owner, unless otherwise stipulated.
When the spouse is not named as a beneficiary, the benefit of the contract is awarded to the person who has that quality when the insured benefit is payable.
Designation of children
Art. 172. When children are not appointed as beneficiaries, the benefit of the contract is awarded to persons who have this quality when the insured benefits are payable. Direct-line descendants come by representation of the predecessed child.
Joint designation of children and spouse
as beneficiaries
Art. 173. When the spouse and children, with or without indication of their names, are jointly designated as beneficiaries, the benefit of the contract shall be awarded, unless otherwise stipulated, for half to the spouse and for half to the children.
Designation of legal heirs as beneficiaries
Art. 174. Where legal heirs are designated as beneficiaries without the indication of their names, the insurance benefits are due, until proven otherwise or unless otherwise provided, to the estate of the insurance owner.
Recipient precedence
Art. 175. In the event of a beneficiary's death before the eligibility of the insurance benefits and even if the beneficiary had accepted the benefit, these benefits are payable to the insurance lessee or to the estate of the insurance, unless he or she has designated another beneficiary in a subsidiary capacity.
(b) Revocation of profit
Right to revocation
Art. 176. As long as no acceptance has been made by the beneficiary, the insurance taker has the right to revoke the beneficiary award until the due date of the insured benefit.
Proof of revocation is established in accordance with section 64.
The right to revocation belongs exclusively to the insurance owner. It may only exercise it, other than its spouse, its legal representatives, its creditors and, except for the case referred to in Article 957 of the Civil Code, its heirs or entitled persons.
Effects of revocation
Art. 177. The revocation of the recipient award makes the benefit of insured benefits lose.
(c) Purchase and reduction
Right to redemption and reduction
Art. 178. The right to redemption and the right to reduction of the contract belong to the insurance holder. Such rights may not be exercised by the spouse or creditors. The King sets the conditions for existence and exercise.
In case of acceptance of the benefit, the exercise of the right to redemption is subject to the consent of the beneficiary.
(d) Reinforcement of contract
Receipt
Art. 179. When the contract has been terminated for non-payment of the premium or has been reduced, it may be brought into force in the cases and under the conditions fixed by the King.
(e) Advance on benefits provided by the contract
Right in advance
Art. 180. The right to obtain an advance on insured benefits from the insurer is vested in the insurance provider. This right may not be exercised by the spouse or creditors. The King sets the conditions for existence and exercise.
In the event of acceptance of the benefit, the exercise of the right in advance is subject to the consent of the beneficiary.
(f) Licensing of contract rights
Right to pledge
Art. 181. Rights resulting from the insurance contract may be pledged; they can only be done by the insurance owner, excluding his spouse and creditors.
In case of acceptance of the benefit, the pledge is subject to the consent of the beneficiary.
Form
Art. 182. The pledge of the contract can only be effected by the claimant, the creditor and the insurer.
(g) Termination of contract rights
Right of assignment
Art. 183. The rights resulting from the insurance contract may be transferred in whole or in part by the insurance taker. This right of assignment may not be exercised by the spouse or creditors.
In case of acceptance of the benefit, the exercise of the right of assignment is subject to the consent of the beneficiary.
Form
Art. 184. The assignment of all or part of the rights resulting from the contract may only be effected by the assignor, the assignee and the insurer.
However, the insurance taker may stipulate in the contract that, upon death, all or part of his or her rights will be transferred to the designated person for that purpose.
Section V. - Recipient rights
(a) Right to insurance benefits
Right to insurance benefits
Art. 185. By virtue of its designation, the beneficiary is entitled to insurance benefits.
This right becomes irrevocable by the acceptance of the benefit, without prejudice to the revocation of the donations provided for in sections 953 to 958 and 1096 of the Civil Code and subject to the application of section 175.
(b) Acceptance of profit
Right of acceptance
Art. 186. The beneficiary may accept the benefit at any time, even after the insurance benefits have become payable.
The right of acceptance belongs exclusively to the beneficiary. It may not be exercised by its spouse or creditors.
Form
Art. 187. As long as the insurance taker is alive, acceptance can only be done by an actor to the police, bearing the signatures of the beneficiary, the insurance taker and the insurer.
After the death of the insurance taker, acceptance may be express or tacit. However, it has no effect on the insurer if notified in writing.
(c) Rights of the heirs of the insurance taker in respect of the beneficiary
Death report or reduction
the insurance taker
Art. 188. In the event of death of the insurance taker, the insurance benefit is, in accordance with the Civil Code, subject to reduction and, as long as the insurance taker has expressly specified, to report.
(d) Creditors' rights to the beneficiary
Insurance benefits
Art. 189. The creditors of the insurance taker have no entitlement to the insurance benefits due to the beneficiary.
Refund of premiums
Art. 190. The creditors of the insurance taker may not claim the refund of the premiums to the beneficiary on a free basis only to the extent that the payments made by the owner were clearly exaggerated in view of the property situation of the insurance taker and only in the event that these payments were made in fraud of their rights under Article 1167 of the Civil Code.
This refund cannot exceed the amount of insurance benefits due to the beneficiary.
Section VI. - Effects of divorce or separation of bodies in insurance between common spouses in property
A. Divorce because of irremediable disunion
Rights of insurance licensee
during divorce proceedings
Art. 191. The exercise of the rights of the insurance licensee under sections 169 to 184 is maintained during the divorce proceedings, except pursuant to sections 1280 and 1283 of the Judicial Code.
Right to insurance benefits during divorce proceedings
Art. 192. Insurance benefits that have become payable during the divorce proceeding are validly paid to the spouse designated as a beneficiary, except under sections 1280 and 1283 of the Judicial Code.
Right to insurance benefits after divorce
Art. 193. Subject to the application of section 299 of the Civil Code, insurance benefits that have become payable after the divorce transcript are validly paid to the divorced spouse designated as a beneficiary, unless, in the contract itself, another person has been designated, appointed or not, as a beneficiary in the event of a divorce and the insurer has not been informed of the divorce, or unless the spouses have agreed to
B. Divorce by mutual consent
Rights of the insurance taker during the testing period
Art. 194. The exercise of the rights of the insured person under sections 169 to 184 shall be maintained during the trial period, unless the spouses have otherwise agreed in accordance with section 1287 of the Judicial Code. This agreement is only enforceable to the insurer after being notified.
Right to insurance benefits
during the time of testing
Art. 195. Insurance benefits that have become payable during the trial period are validly paid by the insurer to the designated spouse as a beneficiary, unless the spouses have otherwise agreed in accordance with section 1287 of the Judicial Code and have not informed the insurer of the new designation.
Right to insurance benefits after divorce
Art. 196. Subject to the application of section 299 of the Civil Code, insurance benefits that have become payable after the divorce is validly paid to the divorced spouse designated as a beneficiary, unless, in the contract itself, another person has been designated, named or not, as a beneficiary in the event of a divorce and the insurer has not been informed of the divorce, or unless the spouses have agreed to the new Code.
C. Body separation
Body separation
Art. 197. § 1^er. Sections 191 to 193 are applicable to body separation because of irremediable disunion.
§ 2. Sections 194 to 196 apply to the separation of bodies by mutual consent.
CHAPTER 3. - Personal insurance contracts
other than life insurance contracts
Character of guarantees
Art. 198. Insurance of persons other than life insurances is indemnity or a lump-sum nature as determined by the will of the parties.
Formal insurance
other than life insurance
Art. 199. The King determines to what extent and under what terms and conditions the provisions of this Act relating to life insurance contracts are applicable to insurance contracts for persons of a flat nature for which the occurrence of the insured event does not depend exclusively on the duration of human life.
Medical choice
Art. 200. For his care, the insured has the free choice of his doctor.
CHAPTER 4. - Health insurance contracts
Section I^re. - Preliminary provisions
Definitions
Art. 201. § 1^er. By health insurance contract, it is understood:
1° Health care insurance which guarantees, in the case of illness or in the case of illness and accident, benefits relating to any preventive, curative or diagnostic medical treatment necessary for the preservation and/or recovery of health;
2° Incapacity for work insurance which, in the case of illness or in the case of illness and accident, totally or partially compensates the reduction or loss of professional income due to the incapacity of a person's work;
3° disability insurance that guarantees a benefit in the event of illness or in the event of illness and accident;
4° non-mandatory care insurance that provides benefits in case of total or partial loss of autonomy.
Are excluded from the definition of the health insurance contract:
(a) temporary travel and assistance insurance that guarantees the benefits referred to in paragraph 1^er;
(b) the statutory occupational accident insurance and related supplementary accident insurance;
(c) accident insurance;
(d) the solidarity benefits referred to in Article 1^er the Royal Decree of 14 November 2003 establishing the solidarity benefits related to the supplementary social pension plans;
(e) the solidarity benefits referred to in Article 1^er of the Royal Decree of 15 December 2003 establishing the solidarity benefits related to social pension agreements.
§ 2. "Health insurance contract related to occupational activity" means any health insurance contract entered into by one or more insurance takers for the benefit of one or more persons professionally related to the insurance taker(s) at the time of affiliation.
§ 3. The "primary insured" means the person to whom the health insurance contract is concluded.
§ 4. The "secondary insured" means the family members of the principal insured person affiliated with the health insurance contract.
Section II. - Health insurance contracts
not related to professional activity
Scope
Art. 202. The provisions of this section apply to health insurance contracts not related to occupational activity.
These provisions are applicable to the insurance taker, the principal insured and the secondary insured.
Duration of insurance contract
Art. 203. § 1^er. Without prejudice to the application of articles 59, 60, 65, 69, 70, 71, 72 and 81 and except for fraud, health insurance contracts referred to in Article 201, § 1^er, 1°, 3° and 4° are concluded for life. Health insurance contracts referred to in Article 201, § 1^er, 2°, are valid until the age of 65 or an earlier age, if this age is the normal age to which the insured person completely and definitively terminates his professional activity.
§ 2. Without prejudice to the application of Article 85, § 3, the contracts may be entered into for a limited period of time at the express request of the principal insured and if there is any interest in the contract.
§ 3. The provisions of this section are not applicable to health insurance contracts offered in an incidental manner in relation to the primary risk, the duration of which is not for life.
Tariff and contractual amendments
Art. 204. § 1^er. Unless mutually agreed by the parties and the sole request of the principal insured, as well as in the cases referred to in paragraphs 2, 3 and 4, the insurer may no longer make changes to the technical bases of the premium or to the conditions of coverage after the health insurance contract has been concluded.
The modification of the technical bases of the premium and/or the conditions of coverage, with the mutual agreement of the parties, provided for in paragraph 1^er, can only be performed in the interest of insured persons.
§ 2. The premium, deductible and benefit can be adapted to the annual premium maturity date based on the Consumer Price Index.
§ 3. The premium, the deductible and the benefit may be adapted, on the annual expiry date of the premium and on the basis of one or more specific indices, to the costs of services covered by private health insurance contracts if and to the extent that the change in that or more indices exceeds that of the consumer price index.
The King, on a joint proposal by ministers who have Insurance and Social Affairs in their responsibilities and after consultation with the Federal Centre for Health Care Expertise (hereinafter "the Centre of Expertise"), determines the method of building these indices. To this effect, He:
- select a set of objective and representative parameters;
- determines the method of calculating the values of these parameters;
- determines the respective weights of these parameters in the index(s).
This method can be evaluated by the Centre of Expertise, at the joint request of Ministers who have Social Affairs and Insurance in their responsibilities.
On the basis of the method fixed by the King, the SPF Economy calculates and publishes annually to the Belgian Monitor the value of the index or indices, based on the figures known as 30 June. Publication of the result is done no later than 1^er September. The modalities of collaboration between the Centre of Expertise and the SPF Economie are the subject of a protocol signed between these two institutions.
The King may increase the frequency of calculating and publishing the value of the index or indices.
Individuals and institutions that have the information necessary for the calculation are required to communicate to the Centre of Expertise and the SPF Economie at the request of the Centre.
§ 4. The application of this section shall not prejudice section 41 of this Act or section 21octies of the Act of 9 July 1975.
§ 5. The premium, period of deficiency and coverage may be appropriately and proportionally:
1. changes in the insurance profession, in respect of non-mandatory health insurance, incapacity for work, disability insurance and care insurance and/or
2. changes in the insured's income with respect to incapacity for work insurance and disability insurance and/or
3. where the latter changes status in the social security system, with respect to health care insurance and incapacity for work insurance, provided that these changes have a significant impact on the risk and/or the cost or extent of guaranteed benefits.
Incontestability
Art. 205. Once a period of two years has elapsed from the date of entry into force of the health insurance contract, the insurer may not invoke section 60 with respect to unintentional omissions or inaccuracies in the statements of the insurance or insured person, where these omissions or inaccuracies relate to a disease or condition of which symptoms have already been identified at the time of the contract.
The insurer may not invoke an unintentional omission or inaccuracy when the illness or condition has not yet been demonstrated in any way at the time of the conclusion of the insurance contract.
Chronic diseases and persons with disabilities
Art. 206. The primary insured candidate who suffers from chronic disease or disability and who has not reached the age of sixty-five is entitled to health care insurance, provided that the costs associated with the disease or disability that exist at the time of the conclusion of the insurance contract may, without prejudice to the application of section 205, be excluded from the coverage. The premium must be the one that would be claimed to the same person if it was not chronically ill or disabled.
Without prejudice to the application of sections 58 and 61 with respect to genetic data information, a document that accurately sets out the target disease or disability, as well as the costs excluded from the coverage or subject to limited coverage, is attached to the insurance contract. The model of the document is stopped by the King.
Without prejudice to the jurisdiction of courts and tribunals, disputes relating to costs excluded from coverage or limited coverage are first submitted to a conciliation body constituted by the King by order deliberately in the Council of Ministers.
Art. 207. § 1^er. The principal insured person shall inform the insurer, in writing or electronically, of the time that a secondary insured person leaves the insurance contract and of the new place of residence of the insurer.
Based on these data, the insurer submits to the secondary insured within 30 days an insurance offer in accordance with sections 203 and 204. The insurer informs the secondary insured that the offer also applies to family members. It cannot invoke the fact that the risk is already realized.
The secondary insured has a period of sixty days to accept the insurance proposal in writing or electronically. The right to accept the offer expires on the expiry of this period.
§ 2. The insurance contract that the secondary insured has accepted begins to run when the latter loses the benefit of the previous insurance.
Section III. - Individual continuation of a health insurance contract related to professional activity
Conditions of granting
Art. 208. § 1^er. Unless it loses the benefit of the health insurance contract related to professional activity for the reasons referred to in sections 59, 60, 69, 70, 72 and 79 and, in general, in the case of fraud, any person affiliated with professional activity insurance has the right to continue, in whole or in part, this insurance individually when it loses the benefit of insurance related to professional activity, without having to undergo an additional medical examination or examination.
For this purpose, the principal insured person must, during the two years preceding the loss of the health insurance contract related to the business activity that is pursued, have been permanently affiliated with one or more successive health insurance contracts signed with an insurance company within the meaning of this Act.
§ 2. The insurance owner or, in the event of bankruptcy or liquidation, the insurance owner's curator or liquidator shall inform the principal insured, in writing or electronically, not later than thirty days after the loss of the benefit of the insurance related to the business activity, the precise moment of the loss and the possibility of pursuing the contract individually. In addition, he informs the principal insured of the time limit in which he or she and, if so, the insured person may exercise their right to individual prosecution. The insurer or, in the event of bankruptcy or liquidation, the curator or liquidator shall, at the same time, transmit to the principal insured the contact information of the insurance company concerned.
The principal insured person and, where applicable, the insured person shall have a period of thirty days to inform the insurer in writing or electronically of their intention to continue the health insurance contract related to professional activity, in whole or in part, individually. The period begins on the day of receipt of the courier by which the insurance taker or, in the event of bankruptcy or liquidation, the curator or liquidator of the insurance taker informs the principal insured in writing or electronically that he may decide to continue individually the health insurance contract related to the occupational activity of which he has lost the benefit. The principal insured person and, where applicable, the insured person shall have the right to extend the thirty-day period, provided that the insurer is notified in writing or electronically. This right must be served by the employer in accordance with paragraph 1^er. This period expires in any case after one hundred and five days from the day of the loss of the benefit of health insurance related to occupational activity.
The insurer has a fifteen-day time limit to submit to the principal insured person and, where applicable, to the insured person, in writing or electronically, an insurance offer in accordance with sections 203 and 204. The insurer cannot invoke the fact that the risk is already realized.
At the same time as the insurer addresses its offer, the insurer shall inform the principal insured person and, where appropriate, the insured person on the terms of warranty, including covered benefits, exclusions, the reporting period. He also reminds the principal insured person and, where applicable, the insured person of the thirty-day period available to accept the offer either in writing or electronically.
The principal insured person and, where applicable, the insured person shall have a period of thirty days to accept the insurance offer in writing or electronically. This period begins on the day the insurer receives the offer referred to in paragraph 3. The right to individual prosecution expires on the expiry of this period.
§ 3. When the insured person loses the benefit of the insurance related to professional activity for another reason than the loss of the benefit of that insurance by the principal insured person, the insured person has a period of one hundred and five days, from the time that he loses the aforementioned benefit, to inform the insurer, in writing or electronically, of his intention to exercise his right to individual prosecution.
The insurer has a 15-day period to make an insurance offer in accordance with sections 203 and 204, electronically or in writing. The insurer cannot invoke the fact that the risk is already realized.
The insured person has a period of thirty days to accept the insurance offer in writing or electronically. This period begins on the day the insurer receives the offer referred to in paragraph 2. The right to individual prosecution expires on the expiry of this period.
§ 4. The insurance contract accepted by the insured takes place when he loses the benefit of the insurance related to professional activity.
Information to be provided by the insurer
Art. 209. § 1^er. The insurer informs the insurance taker of the possibility for the insured to pay an individual premium. The insurance taker shall promptly transmit this information to the principal insured.
The payment of these additional premiums, provided that they have been paid year-by-year without interruption, has the effect that in the event of an individual prosecution the premium referred to in section 211 is fixed taking into account the age of the insured at the time that he began paying the additional premiums.
The age for calculating the premium referred to in section 211 is increased proportionally, in the event of a temporary interruption in the payment of the additional premiums referred to in paragraph 2, depending on the interruption.
§ 2. If the insurer failed to fulfill the duty of information referred to in paragraph 1^er, the premium of the individual health insurance contract is, by derogation from section 211, calculated taking into account the age of the principal insured or the co-insured at the time of his or her affiliation with the occupational insurance. It is up to the insurer to demonstrate that it has fulfilled the duty of information referred to in subsection 1^er.
If the insurance taker failed to transmit the information referred to in subsection 1^er to the principal insured, the insurance taker is required to pay to the insurer the difference between the premium calculated on the basis of the age reached at the time of the exercise of the right of the individual continuation of the contract and the premium calculated on the basis of the age of the principal insured at the time of his or her affiliation with the insurance related to the professional activity. The premium for the individual health insurance contract that is claimed for the principal insured is also in this case, by derogation from section 211, calculated taking into account the age of the principal insured at the time of his or her affiliation with the occupational insurance. It is the responsibility of the insurance licensee to demonstrate that it has forwarded the information referred to in subsection 1^er.
Guarantees
Art. 210. § 1^er. The individual health insurance contract offers at least similar guarantees to those offered by the health insurance contract related to the continued professional activity.
Individual health care insurance guarantees are considered similar if the following elements of occupational health care insurance are taken over:
1° the choice of the room: the full or partial reimbursement or the non-refunding of costs incurred in a single, double or common room;
2° the reimbursement formula: the reimbursement (partial) of actual costs or the reimbursement of costs on the basis of the INAMI level of reimbursement in the context of legal health care insurance, or the possibility of a lump sum intervention;
3° pre- and post-hospitalization: whether or not the ambulatory costs related to hospitalization occur within a specified period before or after hospitalization; if these costs are covered, this period must be at least one month before and three months after hospitalization;
4° Severe diseases: whether or not the ambulatory costs related to serious diseases.
Individual incapacity insurance guarantees are considered to be similar if they provide, such as incapacity-to-work insurance related to occupational activity, the payment of the same percentage of the loss of income incurred or the same fixed amount, however limited if applicable to the loss of income suffered. Individual incapacity for work insurance, which continues the incapacity for work insurance related to work activity, is valid until the legal age of the pension or an earlier age, if it is the normal age to which the insured person completely and permanently ceases to work.
Individual disability insurance guarantees are considered to be similar if they provide for the payment of the same fixed amount or compensation calculated on the basis of the same parameters as those taken into account in the context of disability insurance related to occupational activity.
Individual dependency insurance guarantees are considered to be similar if they provide, such as occupational care insurance, the payment of the same fixed amount or the identical compensation of the costs due to the total or partial loss of autonomy.
§ 2. Without prejudice to Article 203, § 1^erthe individual continuation of the occupational health insurance contract takes place without imposing a new waiting period. The guarantee cannot be limited and no additional premiums can be imposed because of the changes in the health condition of the insured during the health insurance contract related to occupational activity.
Prime
Art. 211. For the calculation of the premium of the individual health insurance contract, it is taken into account only:
1° of the age of the insured at the time of the individual prosecution of the contract, without prejudice to Article 209, § 1^er;
2° of the elements of risk assessment, as they existed and were evaluated when the health insurance contract related to the continued professional activity was registered;
3° of the social security system and the status to which the insured person is subject;
4° with respect to health care, disability and care insurance, as well as the profession of the insured;
5° with respect to the insured's incapacity for work, occupation and professional income.
CHAPTER 5. - Provisions specific to certain insurance contracts that guarantee the reimbursement of the capital of a credit
Art. 212. § 1^er. The King may, on a joint proposal by the Minister and Minister with Public Health in his or her powers and after consultation with the Privacy Commission, establish enforcement provisions for one or more of the following:
1° in which cases and for which types of credit or for which amounts provided a standardized medical questionnaire must be completed;
2° the content of the standardized medical questionnaire, on the understanding that it must be established in accordance with the Act of 8 December 1992 on the protection of privacy with respect to personal data processing and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;
3° how insurers take into account the questionnaire in their decision to award or not insurance and to fix the premium;
4° cases where insurers may request a complementary medical examination to the insurance applicant, as well as the content of this examination and the right to information regarding the results of this examination;
5° the period in which insurers must disclose their decision on the application for insurance to the applicant for insurance, provided that the overall duration of processing of real estate loan application files by credit institutions and insurers may not exceed five weeks from the receipt of the complete file;
6° how credit institutions also take into consideration other guarantees than the insurance of the remaining balance due to the granting of a credit;
7° the conditions to which insurance applicants who are denied access to an insurance of the remaining balance due may appeal to the Bureau for the monitoring of the tariff referred to in 217, § 1^er;
8° the obligation of the head of insurance companies and credit institutions to widely and understandably disseminate information on the existence of this remaining balance insurance mechanism due to persons with increased health risk;
9° the cases in which a declaration on honour must be filed with respect to the purpose of the insurance contract.
The conditions referred to in paragraph 1^er7°, in particular, set the number of refusals by insurance companies that the insurance applicant must have wiped out before being able to address the Pricing Monitoring Office, as well as the height of the premiums assimilated to a refusal of the application.
§ 2. The King may regulate or prohibit the use of medical questionnaires.
The King may determine, rephrase or prohibit issues relating to the health of the insured. It can limit the scope of a question in time.
The King may determine the amount insured below which only the medical questionnaire can be used.
§ 3. Notwithstanding any unfavourable stipulation to an insurance applicant, the insurer shall be required to repair the damage caused by non-compliance with the provisions set out in subsection 1^er. The prejudice caused to an insurance applicant is, unless otherwise proven, presumed to result from non-compliance with the aforementioned provisions.
Art. 213. The insurer who offers a premium to the insurance licensee is required to split the premium between the basic premium and the overprime charged as a result of the insured's health status.
If the insurer decides to refuse insurance or adjourn the award, to exclude certain risks of coverage or to impute a overprime, the insurer shall notify the insurance applicant by mail, in a clear and explicit manner, and by motivating the reasons for its decisions. The insurance applicant is informed, by the same mail, of the faculty he or she has to contact in writing with the insurer's doctor, directly or through a doctor of his or her choice, for the medical reasons on which the insurer founded his or her decisions. In the same letter, the insurer draws attention to the existence and mentions the contact details of the Bureau for the monitoring of the pricing and the conciliation body for the insurance of the remaining balance due.
The insurer indicates whether the proposed premium may be considered for the application of the solidarity mechanism by the Compensation Fund referred to in section 220.
Art. 214. The insurance licensee that does not agree with the proposed premium informs the insurer. The insurer immediately forwards the entire file to the reinsurer, requesting that it be reassessed.
The reinsurer decides on the only basis of the file transmitted. Any direct contact between, on the one hand, the reinsurer and on the other hand, the insurance taker, the insured or the attending physician is prohibited.
In this regard, the King may provide, by order deliberately in the Council of Ministers, that the reinsurer shall not re-evaluate the proposals to overpress when this overpress is less than or equal to a specified percentage of the basic premium, fixed by the King. This percentage to be fixed by the King is up to 25%.
Art. 215. When the reinsurer decides to apply a surcharge less than that initially fixed by the insurer, the insurer amends the insurance proposal.
Otherwise, the insurer confirms its initial proposal.
Art. 216. The period between the initial insurance application and the disclosure of the decision cannot exceed fifteen days. A new fifteen-day delay is due to the insurer's knowledge of the refusal referred to in section 214.
Art. 217. § 1^er. The King creates an Office for the Monitoring of Pricing, which has the task of examining proposals for overpress or refusal of insurance, at the request of the most diligent party.
The King may, in this regard, provide that the Pricing Monitoring Office does not examine the overpressed proposals when this overprint does not represent a minimum ratio of the basic premium.
§ 2. The Pricing Monitoring Office consists of two members representing insurance companies, a member representing consumers and a member representing patients. Members are appointed by the King for a term of six years.
They are chosen from a double list presented by professional associations of insurance companies and by representative associations of the interests of consumers and patients.
The Bureau is chaired by an independent magistrate appointed by the King for a term of six years.
The King sets out the allowances to which the President and the members of the Pricing Monitoring Bureau are entitled and the compensation of the experts.
The King also designates an alternate for each member. Alternates are chosen in the same way as the actual members.
Ministers with Insurance and Public Health in their functions may delegate an observer to the Office.
The Bureau may join experts, without a deliberate vote.
§ 3. The Board considers whether the proposed overprime or refusal of insurance is objectively and reasonably justified from a medical point of view and with respect to the insurance technique.
This Office may be seized directly by the insurance applicant, the Insurance Ombudsman or one of the Bureau members.
It makes a binding proposal within fifteen working days beginning on the date of receipt of the file.
§ 4. The Compensation Fund shall bear the operating costs of the Cost Tracking Office, as determined by the King.
§ 5. The ombudsman service referred to in section 302 provides the secretariat of the Pricing Monitoring Office.
Art. 218. The Insurance Commission, referred to in Part 7, Part IV, is responsible for assessing the application of the provisions of this chapter. It submits to this effect, every two years, a report to the King and the House of Representatives. It may involve in its work the experts and representatives it designates.
This report will be accompanied by a study conducted by the Federal Centre for Health Care Expertise evaluating the adequacy of the rates applied by insurers to the evolution of medical and health care techniques in the main pathologies concerned.
Access to insurance under the terms and conditions proposed by the Pricing Monitoring Office
Art. 219. § 1^er. The Pricing Monitoring Office sets out the conditions and premiums that the insurance applicant has access to life insurance or, where applicable, disability insurance that guarantees a mortgage, consumer credit or a professional credit.
The Board reviews its access conditions and premiums every two years based on the most recent scientific data on the evolution of the risk of death or, where applicable, disability and the likelihood of a health degradation of people at increased risk as a result of their health status.
§ 2. An insurer who refuses an insurance applicant or proposes a premium or a deductible that exceeds that applicable under the tariff conditions proposed by the Pricing Tracking Board shall, by initiative, communicate to the insurance applicant the terms and conditions of access and rates proposed by the Bureau and the information that the insurer may eventually address another insurer.
The insurer shall communicate in writing and in a clear, explicit and unambiguous manner the reasons for the refusal of insurance or the reasons why a higher overprint or deductible is proposed, as well as the precise composition of the latter.
Art. 220. § 1^er. The King agrees, under the conditions it determines, a Compensation Fund which has the task of distributing the charge of the overpresses.
§ 2. The King approves the statutes and regulates the activity of the Compensation Fund. It indicates the acts that must be published in the Belgian Monitor. If necessary, he creates the Compensation Fund.
§ 3. Insurers who practise life insurance as a guarantee of a mortgage credit, as well as mortgage lenders, are jointly and severally obliged to make the payments necessary to the Compensation Fund for the fulfilment of its mission and to support its operating costs.
If the Compensation Fund is created by the King, a Royal Decree sets out annually the rules for calculating payments to be made by insurers and mortgage lenders.
§ 4. The approval shall be withdrawn if the Compensation Fund does not act in accordance with the laws and regulations or its statutes.
In this case, the King may take all measures to safeguard the rights of insurance takers, insured persons and injured persons.
The Compensation Fund shall remain subject to control throughout the liquidation period.
The King appoints a special liquidator for this liquidation.
Conciliation Body for Insurance of the remaining balance due
Art. 221. Without prejudice to the jurisdiction of courts and tribunals, disputes relating to the application of enforcement measures referred to in Article 212 are first submitted to the conciliation body referred to in Article 206, paragraph 3.
Art. 222. The insurer that imputes an overweight of more than 200% of the basic premium is required to offer the standard guarantee to the insurance licensee.
This standardised guarantee is up to 200,000 euros if the insured candidate subscribes the mortgage credit alone. In the case of co-borrowers, the insured candidate may ensure the same amount but limited to 50% of the borrowed capital.
The King may adapt the amounts determined in this article to take into account the evolution of prices.
Art. 223. The insurer that applies an over-prime greater than a threshold expressed as a percentage of the basic premium is required to involve the Compensation Fund.
The Compensation Fund is required to pay the portion of the over-prime that exceeds this threshold, although it cannot exceed a ceiling expressed as a percentage of the basic premium.
The basic premium is assimilated to the lowest premium proposed by the insurance company for a person of the same age.
The King sets this threshold and ceiling so that they respond to a necessary solidarity with the insurance licensees concerned, without this threshold being able to exceed 200 per cent of the basic premium. The assessment under section 218 will also report on this point.
At the request of the Compensation Fund, the insurer issues a double of the insurance file. If necessary, it shall provide the necessary explanations.
Art. 224. Sections 212 to 223 are applied to insurance contracts that guarantee the repayment of the capital of a mortgage credit contracted for the transformation or acquisition of the own and unique home of the insurance owner.
The King may extend the scope of these items to other insurance contracts that guarantee the repayment of the capital of a credit.
PART 5. - THE CONTRACT OF ASSURANCE WITH THE CONTRACTING OF ASSURANCE IN PART 4
CHAPTER 1^er. - General provisions
Art. 225. The provisions of this Part shall apply to insurance contracts governed by Belgian law. To the extent that it is not derogated from it by special articles, they are applicable to marine insurance, as well as to land transport insurance, rivers and canals.
They are not applicable to insurance contracts subject to the provisions of Part 4.
Art. 226. The expected profit can be guaranteed in the cases provided by law.
Art. 227. Mutual insurance associations are governed by their regulations, by the general principles of law, by the specific legal provisions applicable to them and by the provisions of this Part, as they are not incompatible with these types of insurance.
They are represented in court by their directors.
CHAPTER 2. - People who can sign an insurance contract
Art. 228. An object may be insured by any person who has an interest in its conservation, by virtue of a property right or other real right or by reason of the liability to which it is committed in respect of the insured thing.
Art. 229. § 1^er. Insurance may be contracted on behalf of others under a general or special mandate or even without a warrant. The effects of the latter are regulated by the provisions on business management.
§ 2. If it does not result from the insurance contract that it is subscribed for a third party, the insured is supposed to have subscribed for himself.
Art. 230. § 1^er. A creditor may ensure creditworthiness of his debtor; the insurer may avail itself of the benefit of discussion, unless otherwise agreed.
§ 2. Loans seizing or defrauding a pledge and privileged and mortgage creditors can ensure in their personal name the goods assigned to the payment of their claims.
In this case, compensation due to the claim is subject to full entitlement to insured property that was pledged.
Art. 231. When movable objects have been insured, the payment of compensation to the insured will release the insurer if it has not been made of opposition in his hands.
Art. 232. The provisions of the preceding two articles will have effect only as the creditor would come in order in the collocation or distribution, if the loss of the seized, engaged, hypothecated or on which the privilege existed had not arrived.
CHAPTER 3. - The insurer and the insured
Art. 233. Any reluctance, any false statement on the part of the insured, even without bad faith, renders the insurance contract null when they diminish the opinion of the risk or change the subject, so that the insurer, if known, would not have entered into the contract under the same conditions.
Art. 234. In any case where the insurance contract is cancelled, in whole or in part, the insurer must, if the insured has acted in good faith, return the premium, either for the whole or for the part for which he has not incurred any risks.
Good faith may not be invoked in the case of article 236, paragraph 1^er.
Art. 235. If the contract is cancelled due to dol, fraud or bad faith, the insurer retains the premium, without prejudice to public action, if applicable.
Art. 236. Insured things whose full value is covered by a first insurance contract can no longer be subject to new insurance against the same risks to the same person.
If the entire value is not provided by the first contract, the insurers who signed the subsequent contracts will meet the surplus by following the order of the date of the contracts.
All insurance contracts entered into on the same day will be deemed to be entered into simultaneously.
Art. 237. The loss, either total or partial, is divided between the various insurance contracts of the same date, in the proportion of the sums insured by each, and between the various insurance contracts of different date, in proportion to the value each meets.
Art. 238. Successive contracts guaranteeing the same values against the same risks and for the benefit of the same persons will nevertheless have effect:
1° if the consent of each insurer is taken; the loss is divided, in this case, as if both insurance contracts were entered into simultaneously;
2° if the insured discharges the first insurer of any obligation for the future, without prejudice to its own obligations.
The waiver must, in the latter case, be notified to the insurer, and it is referred to in the new police, barely invalid.
Art. 239. The insured can ensure the insurance premium.
Art. 240. No loss or damage, caused by the fact or serious fault of the insured, is the responsibility of the insurer; It can even hold or claim the premium if it has already begun to run the risks.
Art. 241. In any insurance, the insured person must take care to prevent or mitigate the damage; it must, as soon as the damage has arrived, give the insurer notice of it, barely any damages, if any.
The costs incurred by the insured, for the purpose of mitigating the damage, shall be borne by the insurer, even when the amount of the costs, together with the amount of the damage, exceeds the insured amount and the diligences made would have been without result.
However, the courts and arbitrators, where the parties have referred to them, will be able to reduce them or even refuse to allocate them, if they consider that they have been made unconsidered, either in whole or in part.
Art. 242. The insurer does not respond to losses and damages immediately resulting from the defect of the thing, unless otherwise specified.
Art. 243. Insurance does not include war risks, losses or damage caused by riots, unless otherwise agreed.
Art. 244. In any insurance, the compensation, in the event of a claim, is paid for the value of the object, in the time of the claim.
If the insured value has been previously estimated by experts, agreed between parties, the insurer cannot challenge this estimate, excluding fraud.
The value of the object may be established by any means of law. The judge may even, in the event of insufficient evidence, issue the oath to the insured person on his or her own motion.
Art. 245. In any case where the insurance contract covers only part of the value of the insured object, the insured person is considered as an insurer for the surplus value, unless otherwise agreed.
Art. 246. The insurer who paid the damage is subrogated to all the rights of the insured against the third parties of the head of the damage, and the insured is responsible for any act that would prejudice the insurer's rights against third parties.
In insurance contracts permitted by Article 230, § 2, the insurer who has paid the allowance is subrogated to the creditor's action against the debtor.
Subrogation cannot, in any case, harm the insured who was only compensated in part; the insurer may exercise its surplus rights and in this regard retains the preference on the insurer, in accordance with section 1252 of the Civil Code.
An insurer who makes a payment to a minor, a prohibited person or another person unable under an insurance contract, shall make a payment on an account that is open to his or her name, with unavailability to the majority or to the lifting of the disability, without prejudice to the right to legal enjoyment.
Art. 247. The insurer has a privilege on the insured thing.
This privilege is exempt from registration. It takes place immediately after that of court fees.
There is, no matter how the premium pays, only for a sum corresponding to two annuities.
Art. 248. The insurer can always be reassured by the subject of the insurance.
CHAPTER 4. - Evidence and content of the contract
Art. 249. The insurance contract must be proven in writing, regardless of the value of the object of the contract.
However, testimonial evidence may be admitted, where there is a beginning of evidence in writing.
Art. 250. The same policy may contain several insurances, either because of the insured, or because of the premium rate, or because of the various insurers.
Art. 251. The insurance policy states:
1° the day on which the insurance contract is entered into;
2° the name of the person who subscribes the insurance contract on his behalf or on behalf of others;
3° the risks that the insurer takes on him and the times to which the risks must begin and end.
CHAPTER 5. - A few cases of contract resolution
Art. 252. The insurance contract may not have effect if the insured thing has not been put at risk or if the intended damage already existed at the time of the conclusion of the contract.
Art. 253. If the insurer falls in bankruptcy when the risk is not yet over, the insured person may apply for bail or, failing bail, the termination of the contract.
The insurer has the same right in the event of a failure of the insured.
Art. 254. In the event of the alienation of the insured thing, the insurance contract takes full advantage of the new owner, unless otherwise agreed, of all the risks for which the premium was paid at the time of the alienation.
It also benefits the new owner, unless otherwise agreed in the policy, when the owner has been subrogated to the rights and obligations of the previous owner to the insurers or where, in common agreement between the insurer and the new owner, the insurance contract continues to be executed.
Art. 255. The insurer's obligations cease when a fact of the insured transforms the risks by changing an essential circumstance or aggravates them in such a way that if the new state of things existed at the time of the conclusion of the insurance contract, the insurer would not have entered into that contract or would have concluded it only under other conditions.
This provision cannot be used by the insurer, who, after having been aware of the changes to the risks, continued to perform the contract.
CHAPTER 6. - From the prescription
Art. 256. Any action deriving from an insurance policy is prescribed after three years, from the event that opens it. The statute of limitations against minors, prohibited persons and other persons unable to do so does not run until the day of the majority or the lifting of the disability.
However, in the event of a recursory action of the insured against the insurer, the deadline is only from the victim's request for justice, whether it is a claim originating from compensation, or whether it is a subsequent application as a result of the aggravation of the damage or the occurrence of a new damage.
PART 6. - ASSURANCE INTERMEDIATION AND ASSURANCE DISTRIBUTION
CHAPTER 1^er. - Definitions
Art. 257. For the purposes of this Part, it shall be understood by:
1° "responsible de la distribution" :
(a) any natural person in the direction of an insurance or reinsurance intermediary, or any employee in the service of such an intermediary, and who, de facto, assumes the responsibility for the intermediation activity in insurance and reinsurance or exercises control over it;
(b) any natural person who, in an insurance business, de facto assumes responsibility for persons responsible for the distribution of insurance products or exercises control over such persons;
2° "insurance broker": an insurance or reinsurance intermediary that connects insurance licensees and insurance companies, or insurance companies and reinsurance companies, without being bound by their choice;
3° "insurance agent": an insurance or reinsurance intermediary that, because of one or more conventions or powers of attorney, on behalf of one or more insurance or reinsurance companies, carries out insurance or reinsurance intermediation activities;
4° "subsury agent": the insurance or reinsurance intermediary, other than the one referred to in points 2° and 3°, which acts under the responsibility of the persons referred to in points 2° and 3°;
5° "Related Insurance Agent": an insurance agent that, because of one or more agreements or proxy(s), cannot perform an insurance intermediation activity, on behalf of and on behalf of the insurance agent, that:
- one insurance company; or
- several insurance companies as long as the insurance contracts of these companies do not compete with each other;
and acts under the full responsibility of the latter for the insurance contracts that concern them respectively.
For the purposes of this section, the following insurance contracts are considered to be insurance contracts that compete with each other:
- insurance contracts under the "life" activity group referred to in Appendix I to the Royal Decree of 22 February 1991 on the general regulation of the control of insurance companies, as well as insurance contracts under the life insurance branches referred to in Annex I to the Directive 2002/83/EC of the European Parliament and the Council of 5 November 2002 on the direct life insurance or in Annex II to the Directive 2009/138^er the Royal Decree of 21 February 2014 on the terms and conditions of application to the insurance sector of sections 27 to 28 bis of the Act of 2 August 2002 on financial sector surveillance and financial services;
- insurance contracts under the "life" activity group referred to in Schedule I of the Royal Decree of 22 February 1991 relating to the general regulation of the control of insurance companies, as well as insurance contracts under the life insurance branches referred to in Annex I to the Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning the direct insurance on life or in Annex II to the Directive 2009/138^er the above-mentioned Royal Decree of 21 February 2014; and,
- the insurance contracts under the "non-life" activity group when they fall within the same branch as set out in Schedule I to the Royal Decree of 22 February 1991 on the General Regulation on the Control of Insurance Businesses, of the Schedule, item A, of Council Directive 73/239/EEC of 24 July 1973 on the coordination of legislative, regulatory and administrative provisions concerning access to the activity of direct insurance other
6° "IMD member state" :
(a) if the insurance or reinsurance intermediary is a natural person, the Member State in which it is domiciled and where it operates;
(b) if the insurance or reinsurance intermediary is a legal entity, the member State in which its head office is established or, if that corporation has no head office under its national law, the member State in which its central administration is located.
7° "IMD Member State": the Member State, other than the IMD Member State of origin, where an insurance or reinsurance intermediary has a branch or operates in a free service.
8° "IMD authorities": authorities within the meaning of Article 2, item 11, of Directive 2002/92/EC;
9° "sustainable support": any instrument that allows the customer to store information that is addressed to him personally, so that they can be consulted later for a period adapted to the purpose of this information, and allowing the exact reproduction of the stored information;
In particular, the concept of sustainable support includes computer disks, CD-ROMs, DVDs and hard disks of the consumer computer on which electronic mail is stored, but does not include a website, unless this site meets the criteria specified in the definition of sustainable support;
10° "the Royal Decree on Level 1 Rules of Conduct": the Royal Decree of 21 February 2014 on the terms and conditions of application to the insurance sector of sections 27 to 28bis of the Act of 2 August 2002 on the supervision of the financial sector and financial services;
11° "the Royal Decree on Level 2 Rules of Conduct": the Royal Decree of February 21, 2014 on rules of conduct and rules relating to the management of conflicts of interest, established under the law, with respect to the insurance sector.
CHAPTER 2. - General provisions
Art. 258. This Part does not apply to insurance and reinsurance intermediaries in the following cases:
1° where they operate exclusively for the purpose of ensuring or reinsurance of the risks of their own business or the group of businesses to which they belong;
2° where the insurance or reinsurance intermediation relates to insurance or reinsurance contracts for which all the following conditions are met:
(a) the contract requires only knowledge of the coverage provided by the insurance;
(b) the contract is not a life insurance contract;
(c) the contract does not include any coverage of civil liability;
(d) the intermediation in insurance or reinsurance does not constitute the principal professional activity of the persons concerned;
(e) insurance is a supplement to the product or service provided by any supplier, when it covers:
- the risk of malfunction, loss or damage to the goods provided by that supplier; or
- the risk of damage or loss of baggage and other risks associated with a travel reserved with that supplier, even if the insurance covers life or civil liability, provided that this coverage is incidental to the main coverage related to the risks associated with that travel;
(f) the amount of the annual premium shall not exceed 500 euros and the total duration of the contract, including renewals, shall not exceed five years.
Art. 259. Individuals who are designated to be responsible for the distribution in an insurance company operating in Belgium must meet the same conditions for professional knowledge and fitness and professional honesty as those provided for intermediaries in Article 268, § 1^er, 1° and 2°, and § 2.
Other persons of an insurance company who, in any way, are in contact with the public in order to offer for sale or to sell products of their business, must meet the conditions of professional knowledge set out in section 270, § 2.
Art. 260. Any legal or physical person who occupies workers and is registered as an insurance or reinsurance intermediary, shall designate a distribution official in accordance with section 261. The person responsible for the distribution must meet the conditions relating to professional knowledge and fitness and professional honesty referred to in Article 268, § 1^er, 1° and 2°, and § 2.
Other persons who, with an insurance or reinsurance intermediary, deal directly with insurance or reinsurance intermediation, in particular any person who, for this purpose and in any way, is in contact with the public, must meet the conditions for professional knowledge set out in section 270, § 2.
Art. 261. Insurance and reinsurance intermediaries, as well as insurance companies, designate one or more natural persons to be responsible for the distribution. Their number is adapted to the organization and activities of the intermediary or company. The King sets this number on a joint proposal by the Minister with the Insurance in his duties and the Minister of Social Affairs.
CHAPTER 3. - Registration.
Section I^re. - General provisions
Art. 262. § 1^er. No insurance or reinsurance intermediary of which Belgium is the original member State IMD cannot exercise the intermediation activity in insurance or reinsurance, if it is not previously registered in the insurance and reinsurance intermediaries register maintained by the FSMA.
No insurance or reinsurance intermediary having as a Member State of origin IMD a country other than Belgium may exercise in Belgium the intermediation activity in insurance or reinsurance, if it is previously registered as an intermediary of insurance or reinsurance by the IMD authority of its Member State of origin, without prejudice to the provisions of Article 266, § 2.
No insurance or reinsurance intermediary having its domicile or head office in a non-EEE country may exercise in Belgium the insurance or reinsurance intermediation activity, if it is previously registered in the insurance and reinsurance intermediaries register maintained by the MSDS.
The register of insurance and reinsurance intermediaries maintained by the MSDS consists of the following categories: "insurance brokers", "insurance agents" and "insurance agents".
An insurance or reinsurance intermediary may only be registered in one of the above categories.
§ 2. Insurance or reinsurance companies that have an establishment in Belgium or operate their business without being established may not use an insurance or reinsurance intermediary that is not registered in accordance with the provisions of paragraph 1^er.
However, if they rely on an unregistered insurance or reinsurance intermediary, they are civilly responsible for the acts committed by these intermediary agents as part of their insurance or reinsurance intermediation activity.
§ 3. Derogation from the provisions of paragraph 1^er, the insurance intermediaries referred to in section 68 of the Act of 26 April 2010 relating to the organization of supplementary health insurance (I), are registered in the Register maintained by the MCO.
The King shall determine, on the advice of the WCO, the terms and conditions under which registration must be carried out in the register.
The Royal Decrees Implementing this subsection are taken on the joint proposal of the Minister who has the Insurance in his or her powers and the Minister of Social Affairs.
Art. 263. The insurance or reinsurance intermediary who wishes to be registered in the category "insurance brokers" attached to its application for registration a statement on the honour of which it appears that it carries out its business activities outside of any exclusive agency contract or any other legal undertaking requiring it to place the whole or a specified part of its production with an insurance or reinsurance company or several insurance companies or reinsurance companies.
Without prejudice to the legal provisions relating to the inviolability of the home and the protection of privacy, the MSDS may conduct any investigation, including in premises where the insurance or reinsurance intermediary operates or at the headquarters of the insurance or reinsurance companies concerned, with a view to monitoring the veracity of the declaration.
Any modification to the data on which the declaration relates to the honour referred to in paragraph 1^er must be communicated promptly to FSMA.
Art. 264. § 1^er. The insurance intermediary in the insurance category that is subject to a contractual obligation to work in the insurance sector, exclusively with a single insurance company or with several insurance companies for non-competitive insurance contracts between them, so that it meets the definition of a related insurance agent, notifies it to the MSDS. It also communicates the name, address of the insurance company(s) as well as the group(s) of activity and the insurance branches concerned.
§ 2. The insurance company shall notify the MSDS of the name(s) and address(s) of the related insurance agent(s) with which it collaborates. It also communicates to FSMA the activity group(s) and the relevant insurance branches.
§ 3. Any changes to the data referred to in paragraphs 1^er or 2 is notified to FSMA without delay.
Art. 265. For the activities referred to in this Part, no one may bear the title of insurance broker, insurance agent or insurance agent, or broker, agent or sub-agent, to indicate the insurance, reinsurance or intermediation activity in insurance or reinsurance, if it is not registered in the register of insurance and reinsurance intermediaries, respectively in the category "insurance brokers".
Art. 266. § 1^er. Any insurance or reinsurance intermediary registered in Belgium that plans to carry out activities in another Member State for the first time under the scheme of freedom of establishment or free service, shall notify FSMA in advance. The register indicates in which Member States the intermediary operates under freedom of establishment or free service.
In the month of notification, FSMA informs of this intent the IMD authority of the IMD host State that wishes, and communicates this notification to the intermediary concerned.
§ 2. The intermediary of insurance or reinsurance registered in a Member State other than Belgium may begin its activities in Belgium, either under the regime of freedom of establishment or under that of free service, after having notified the IMD authority of its Member State of origin, and after this authority warned the FSMA in accordance with the provision of European law in this matter. FSMA publishes the list of these insurance and reinsurance intermediaries on its website and ensures that it is regularly updated on the basis of the data available to it.
The intermediary of insurance or reinsurance referred to in paragraph 1^er must comply, in the course of its activities, with the legal and regulatory provisions applicable in Belgium to insurance and reinsurance intermediaries for reasons of general interest. FSMA communicates to these insurance and reinsurance intermediaries what provisions are, to its knowledge, of general interest.
§ 3. Insurance and reinsurance intermediaries referred to in paragraph 1^er, paragraph 2, as well as the insurance and reinsurance intermediaries referred to in paragraph 2, may commence their activities in the IMD host State concerned not earlier than one month after being notified by the IMD authority of their original Member State.
Section II. - Procedure and conditions
Art. 267. § 1^er. Any application for registration is sent to the FSMA in the forms and conditions fixed by the King. In its application, the applicant must indicate in which category he or she wishes to be registered and mention that or those of the branch groups referred to in Schedule II of the Royal Decree of 22 February 1991 relating to the general regulation of the control of insurance companies, in which or which he or she operates.
If the applicant wishes to exercise the insurance or reinsurance intermediation in respect of occupational accident insurance as referred to in the Act of 10 April 1971 on occupational accidents or by the Act of 3 July 1967 on the prevention or repair of injury caused by occupational accidents, occupational accidents and occupational diseases in the public sector, the applicant must indicate in his application.
The applicant must provide, in support of the applicant's request, the necessary documents proving that it meets all the conditions.
Without prejudice to the provisions of section 268, a number of candidates may apply for collective registration if compliance with their obligations under section 268 is verified by a central agency. This central agency must be an insurance intermediary, a reinsurance intermediary, a registered insurance company for the exercise of insurance activities, a registered reinsurance company for the exercise of the reinsurance activity, an insurance company subject to additional supervision over insurance companies within the meaning of section 91ter of the Act of 9 July 1975, or another specified agency or company that meets the conditions of King In this case, the application for registration is filed by the central body under its responsibility. For the purposes of this Act, their file will be treated as a single business. The insurance or reinsurance intermediary is de-registered when the central agency requests the withdrawal of its registration.
The MSDS decides, within sixty days of receipt of the application and the required documents, whether or not to register the applicant in the category requested. FSMA notifies its decision to the applicant by registered letter. In the event of a refusal, FSMA must justify this refusal. Any modification to the data of the documents referred to in this paragraph shall be communicated immediately to the MSDS, without prejudice to the right of the MSDS to collect information from the interested party or to request evidence.
If the insurance or reinsurance intermediary is no longer in the circumstances referred to in the declaration on the honour referred to in section 263, paragraph 1^er, it is registered in another registry category.
§ 2. Lists of registered insurance and reinsurance intermediaries are posted on the FSMA website. The latter is responsible for regularly updating this website on the basis of the data available to it. The list of insurance intermediaries registered with the MCO is available via the FSMA website.
The website mentions for each insurance or reinsurance intermediary the data necessary for its identification, the date of its registration, the category in which it is registered, if any, the date of its cancellation, and any other information that the MSDS considers useful for correct public information. The ADM and the MCO for the insurance intermediaries referred to in section 68 of the Act of 26 April 2010 on various arrangements for the organization of supplementary health insurance (I) determine the conditions under which the reference to the delisting of an intermediary is removed from the website.
Art. 268. § 1^er. To be able to register insurance and reinsurance intermediaries and to be able to maintain the registration, the intermediary of insurance or reinsurance concerned must:
1st possess the required professional knowledge as determined by section 270;
2° possess adequate professional skills and honorability;
3° be subject to professional civil liability insurance covering the entire territory of the EEA;
The insurance contract contains a provision that requires the insurance company, when terminated, to notify the MSDS.
However, it is exempted from this obligation to ensure their professional liability, insurance or reinsurance intermediaries acting on behalf of, and on behalf of, insurance or reinsurance companies or other insurance or reinsurance intermediaries, including credit institutions, that assume that responsibility.
The King sets, on the proposal of the FSMA, the conditions of insurance.
4° refrain from participating in the promotion, conclusion and execution of insurance or reinsurance contracts which are clearly contrary to the Belgian legal rules applicable to these contracts and/or the applicable Belgian legal rules with regard to the offer and conclusion of such contracts;
5° with respect to their insurance or reinsurance intermediation activity in Belgium, only with insurance companies authorized under the relevant Belgian control legislation to carry out insurance activities in Belgium, or with reinsurance companies authorized under the relevant Belgian control legislation to exercise reinsurance activity in Belgium;
6° adhere to an extra-judicial complaints system. He must either have joined such a system himself or be a member of a professional association that has joined such a system. It is required to contribute to the financing of the said system and to respond to any requests for information that would be addressed to it in handling complaints through that system;
7° comply, where applicable, with the provisions of articles 273, 274 and 275;
8° pay contributions to the operating costs of the MSDS, determined in accordance with section 56 of the Act of 2 August 2002;
9° comply with the Act of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Financing of Terrorism and the Implementing Orders thereof, provided that the intermediary concerned is subject to this legislation.
Derogation from the provisions of paragraph 1^er, 8°, the insurance intermediaries referred to in section 68 of the Act of 26 April 2010 relating to the organization of supplementary health insurance (I), pay their contribution to the operating expenses of the MCO.
§ 2. In order to be registered in the Register of Insurance and Reinsurance Intermediaries and to be able to retain such registration, the Interested person may not be in any of the cases provided for in section 19 of the Act of 22 March 1993 relating to the status and control of credit institutions.
§ 3. Insurance and reinsurance intermediaries and, in the case referred to in Article 267, § 1^er, paragraph 4, the central agency shall demonstrate to the FSMA, in accordance with the rules specified by the FSMA by regulation, including in terms of periodicity, compliance with the provisions set out in paragraphs 1^er and 2.
Art. 269. In addition, insurance and reinsurance intermediaries with the status of a corporation are registered and retain their registration, provided that:
1° that the persons to whom the effective management is entrusted are not in one of the cases listed in section 19 of the Act of 22 March 1993 relating to the status and control of the credit institutions and have the requisite fitness and professional honours, the required professional knowledge referred to in section 270 and the appropriate experience to exercise that function;
2° that the MSDS has been informed of the identity of persons who, directly or indirectly, exercise control over the intermediary, and considers that they have the qualities necessary to ensure sound and prudent management; insurance and reinsurance intermediaries inform FSMA of any changes to this control.
Art. 270. § 1^er. By the required professional knowledge referred to in Article 268, 1°, it is necessary to hear:
1° Sufficient knowledge of:
A. Technical knowledge:
(a) this Act and its enforcement orders and regulations with respect to the rules of information and rules applicable to the terms and conditions of insurance contracts and the conclusion of such contracts, as well as the important provisions of the European regulations in this regard;
(b) the legislation on prudential control of insurance companies, to the extent that this legislation may have an impact on the conclusion of insurance contracts, including the important provisions of the European regulation in this regard;
(c) legislation on market practices and consumer protection;
(d) the regulation, technique and tax aspects of the various insurance branches;
(e) anti-money-laundering legislation, provided that insurance or reinsurance is subject to the Act of 11 January 1993 on the prevention of the use of the financial system for the purpose of money laundering and the financing of terrorism;
(f) the rules of conduct as referred to in this Part, the Royal Decree on Level 1 Rules and the Royal Decree on Level 2 Rules.
B. Business management knowledge:
(a) Basic principles of accounting;
(b) fundamental principles of the tax and social law of the profession.
2° A practical experience in insurance, the duration of which is determined in accordance with paragraph 4.
The MSDS determines the structure and content of this practical experience, as well as the actions that may be performed under the supervision of a person registered during the period of acquisition of the practical experience.
§ 2. 1 The persons referred to in Article 257, 4°, Article 259, paragraph 2, and Article 260, paragraph 2, shall be exempted from the knowledge of the substances listed in paragraph 1^er, 1°, A, b) and c), and B, as well as the practical experience in insurance set out in paragraph 1^erTwo. For these persons, the knowledge listed in paragraph 1^er, 1°, A, a) and d), are limited to a basic knowledge of the legislation on the insurance and regulatory contract, the technique and the tax aspects of the insurance products they offer on sale or sell. Persons referred to in section 259, paragraph 1^erand Article 260, paragraph 1^erare exempt from the knowledge of the substances listed in paragraph 1^er1°, B.
2° Reinsurance intermediaries are exempt from the knowledge of the substances specified in paragraph 1^er, 1°, A, a), c) and f).
3° For insurance and reinsurance intermediaries that limit their activities to one or more of the branch groups listed in Schedule II of the Royal Decree of 22 February 1991 on the general regulation relating to the control of insurance companies or the legal insurance against industrial accidents, the technical knowledge referred to in paragraph 1^er, 1°, A, d), are limited to that or those of the branches in which they operate. Where applicable, this limitation of activity is included in the registry.
§ 3. By the required professional knowledge as referred to in section 269, 1°, sufficient knowledge of the substance determined in paragraph 1 is understood^er, 1°, B. This knowledge is also required when the persons referred to in this article are responsible for the distribution.
§ 4. The proof of professional knowledge required is provided by:
1° the holders of one of the higher education certificates listed by the King, who have acquired a practical experience whose duration is determined by the King but may not exceed two years. For reinsurance intermediaries, the duration of the practical experience is five years;
2° the holders of a certificate of higher secondary education that have followed with fruit a specialized course of insurance organized by or under a decree, a representative professional organization, an insurance or reinsurance company or an insurance or reinsurance intermediary, including credit institutions. This specialized course must be approved by FSMA. The King may, on the proposal of the FSMA, specify the rules to which examinations related to the insurance course referred to herein must be met. The interested person must also justify a practical experience whose duration will be fixed by the King but may not exceed two years. For reinsurance intermediaries, the length of the practical experience is five years.
The duration of this practical experience is reduced by half for insurance intermediaries who do not request their registration in the insurance and reinsurance intermediaries register in the "insurance brokers" category.
Insurance and reinsurance companies, professional organizations and insurance or reinsurance intermediaries, including credit institutions, communicate to FSMA the structure and content of their training program. FSMA checks whether the training program meets the requirements required under this section and whether the recipients followed the program with fruit. FSMA may, if necessary, withdraw its approval.
§ 5. By derogation from paragraph 4:
1° for persons who have been registered in the register of insurance intermediaries under the benefit of transitional measures in the field of professional knowledge set out in section 18 of the Act of 27 March 1995 relating to the intermediation in insurance and reinsurance and the distribution of insurances, as it was written before its amendment by the law of 22 February 2006, and who have been omitted from the register, the waiver of professional knowledge remains
In addition, in the event of a request for re-registration and any time elapsed since their failure to register, the above-mentioned persons shall not produce the certificate of higher secondary education referred to in paragraph 4, paragraph 1^er2°;
2° persons other than those referred to in 1° who have already been registered in the register of insurance intermediaries but who have been omitted from it, shall not, in the case of a request for re-registration within five years and in any class of the register on which the new application is filed, prove that they meet the requirements for professional knowledge to which they had already been considered satisfactory during their previous registration.
In addition, in the event of a request for re-registration and any time elapsed since their failure to register, the above-mentioned persons shall not produce the certificate of higher secondary education referred to in paragraph 4, paragraph 1^erTwo.
The derogations set out in the preceding paragraph are not applicable if the failure of the registry results from a delisting measure because of a breach of professional knowledge requirements.
The provisions of the preceding paragraphs shall apply by analogy to persons designated as persons responsible for the distribution.
§ 6. Insurance companies and, where applicable, insurance and reinsurance intermediaries shall meet the sufficient basic training set out in paragraph 2 of the persons referred to in section 259, paragraph 2, and section 260, paragraph 2. This basic training shall be approved by FSMA in accordance with paragraph 4, 2°, paragraph 3.
§ 7. The professional knowledge and basic training referred to in this section are subject to regular recycling. FSMA is competent to integrate these recyclings.
§ 8. By derogation from the provisions of paragraphs 4, 6 and 7, the examinations relating to the proof of professional knowledge required, through insurance intermediaries, referred to in article 68 of the law of 26 April 2010 relating to various provisions concerning the organization of the supplementary health insurance (I), by their distribution officials and by their personnel in contact with the public, as well as examinations relating to the proof of professional knowledge required by the distribution officials, These examinations must be approved by the WCO. It determines the modalities to which they must respond.
§ 9. The King may, on the proposal of FSMA, amend the provisions of the preceding paragraphs in order to align them with the amended legal or regulatory provisions on higher or secondary education.
Art. 271. The insurance companies concerned shall periodically report to the MSDS on the performance of the provision of section 259, paragraph 1^erby providing a nominative list of the persons concerned, as well as a statement of any subsequent amendments to the list.
Interested insurance and reinsurance intermediaries periodically report to the MSDS on the performance of the provision of section 260, paragraph 1^erby providing a nominative list of responsible persons and a statement of any subsequent amendments to this list. The ADMSP registers these persons by mentioning the registration number of the insurance and reinsurance intermediary that employs them. Section 267 applies by analogy.
With respect to all persons referred to in section 259 and section 260, the employer retains the list and related documents and holds them at the disposal of the MSDS.
Section III. - Payment of premium and insurance benefit
Art. 272. Section 67 applies to any insurance intermediation within the scope of this Part.
CHAPTER 4. - Information obligations and other rules of conduct
Section 1^re. - Information to be provided through insurance
Art. 273. § 1^er. Prior to the conclusion of an insurance contract and, if necessary, on the occasion of its modification or renewal, an insurance intermediary provides the customer at least the following information:
1° his identity and address;
2° the register of insurance intermediaries in which it was registered, its registration number, and, in the absence of a registration number, the means to verify that it was registered, as well as, where applicable, the category in which it was registered;
3° the name and address of the insurance company in which it holds a direct or indirect interest greater than 10% of the voting or capital rights;
4° the name and address of the insurance company or the parent company of an insurance company that holds a direct or indirect interest greater than 10% of the voting or capital rights of the insurance intermediary;
5° the name and address of the organization to which clients and other interested parties may file complaints regarding insurance intermediaries;
6° whether or not it provides any type of advice on insurance contracts offered to the client.
In addition, the insurance intermediary indicates to the client, with respect to the contract provided:
1° if it bases its advice on an impartial analysis that meets the requirements of paragraph 2, or
2° if it is subject to a contractual obligation to work in the insurance sector exclusively with a single insurance company or with several insurance companies; in this case, the client shall communicate, at the request of the client, the name and address of the insurance company(s) or
3° if it is not subject to the contractual obligation to work in the insurance sector, exclusively with a single insurance company or with several insurance companies, and if it does not base its advice on an impartial analytical obligation that meets the requirements of paragraph 2; in this case, at the request of the customer, the name and address of the company or insurance companies with which (these) it can work and work.
In cases where it is required to provide such information at the request of the client, the client is informed of the right to request such information.
§ 2. When the insurance intermediary informs the customer that it bases its advice on an impartial analysis, it is required to base these advice on the analysis of a sufficient number of insurance contracts offered on the market, so that it can recommend, according to professional criteria, the insurance contract that would be tailored to the needs of the customer.
§ 3. Prior to the conclusion of a specific insurance contract, the insurance intermediary determines, in particular on the basis of the information provided by the customer, at least the requirements and needs of that client and ensures that the proposed insurance contract to the customer meets these requirements and needs. On this occasion, the insurance intermediary specifies the reasons for any advice provided to the client regarding a specific insurance contract if the intermediary provides advice. These details are modified based on the complexity of the proposed insurance contract.
§ 4. It is not necessary to provide the information referred to in paragraphs 1^er, 2 and 3 when the insurance intermediation concerns the coverage of large risks.
Art. 274. The insurance intermediary refers to his letter paper and other documents relating to his or her insurance intermediation activity, as well as to his advertising, his or her registration number in the insurance and reinsurance intermediary register.
At the request of the client, he communicates the nature and scope of his skills.
Mandatory references referred to in paragraph 1^er are supplemented, with respect to insurance agents, by the names of all insurance companies in the name and on whose behalf they carry out insurance intermediation activities and, with respect to insurance sub-agents, by the name of the insurance intermediary for which they operate.
The persons referred to in section 259 refer to each contact with the public the name of the insurance company for which they work directly or indirectly. Persons referred to in Article 260, § 1^er, mention to each contact with the public the name of the insurance or reinsurance intermediary for which they act.
Section II. - Terms of information
Art. 275. § 1^er. Any information provided to customers under sections 273 and 274 is communicated:
(a) on paper or other durable material available and accessible to the client;
b) with clarity and accuracy, in a manner that is understandable to the client;
(c) in one of the official languages of Belgium or in any other language agreed by the parties.
§ 2. The use of durable support other than paper to provide information to customers is permitted only on condition that:
(a) the provision of this information on this support is appropriate in respect of commercial transactions between the insurance provider and the client; and
(b) the customer was offered to receive the information either on paper or on that other durable medium, and he opted specifically for the provision of information on that other medium.
For the purposes of this paragraph, the provision of information through electronic communications will be considered appropriate to commercial transactions that have or will take place between the insurance intermediary and the customer if it is proven that the customer has regular access to the internet. The provision by the customer of an e-mail address as a means of communication for the purposes of these commercial transactions will be interpreted as evidence of this regular access.
§ 3. The information may be provided orally when requested by the client, in the event that the coverage comes into force immediately. In this case, the information shall be communicated to the customer immediately after the conclusion of the insurance contract, in accordance with the provisions of paragraph 1^er.
§ 4. In the event of a telephone sale, the information provided to the customer is provided in accordance with the provisions of the Act of 24 August 2005 to transpose certain provisions of the Remote Financial Services Directive and the Privacy and Electronic Communications Directive. In this case, the information is also communicated to the customer immediately after the conclusion of the insurance contract, in accordance with the provisions of paragraph 1^er.
Section III. - Information to be provided by the insurance company
Art. 276. The provisions of Article 273, § 1^erParagraph 1^er, 5° and 6°, and §§ 3 and 4, and of section 275 apply by analogy to insurance companies in their direct contact with customers.
Section IV. - Other rules of conduct
Art. 277. § 1^er. Insurance intermediaries must act in an honest, fair and professional manner that best serves the interests of their clients. The information they provide must be correct, clear and not misleading.
In their intermediation activity, insurance intermediaries must comply with the rules of conduct applicable to insurance companies. By deliberately decreed in the Council of Ministers, taken on the advice of FSMA, the King may, for all categories of insurance intermediaries or some of them, provide for an appropriate version of these rules of conduct or declare some of these rules in whole or in part not applicable, in order to take into account the particularities of their role.
§ 2. Insurance intermediators only carry their intermediation activity on insurance contracts, which they themselves, their distribution officials, and the persons referred to in section 260, paragraph 2, that they occupy, know and are able to explain to customers the essential characteristics.
Insurance companies offer to subscribe only insurance contracts whose distribution managers and the persons referred to in section 259, paragraph 2, they occupy, know and are able to explain to customers the essential characteristics.
§ 3. Without prejudice to the provisions of articles 26 and 27 of the Act of 2 August 2002, the King is entitled to establish, by order deliberately in the Council of Ministers, taken on the advice of FSMA, pursuant to paragraphs 1^er and 2, rules of conduct and rules to prevent conflicts of interest, which insurance intermediaries must respect.
§ 4. The King may, by order deliberately in the Council of Ministers, take on the advice of the FSMA, amend, complete, replace or repeal the other provisions of this Act in order to align its contents with the rules of conduct referred to in this section and to ensure consistency with these rules. Orders made under this authorization shall be repealed in full law if they have not been confirmed by law within twelve months after publication to the Belgian Monitor.
Section V. - Data retention
Art. 278. § 1^er. Insurance intermediaries shall keep a record of any insurance intermediation activity carried out in order to allow the MSDS to verify whether the insurance intermediary complies with the provisions of this Part, the Royal Decision on Level 1 Rules of Conduct and the Royal Decree on Level 2 Rules of Conduct, and, in particular, whether it complies with its obligations with respect to its potential customers or customers.
§ 2. FSMA may specify the provisions of this article by regulation made pursuant to articles 49, § 3, and 64 of the Act of 2 August 2002.
Section VI. - Accountability
Art. 279. § 1^er. Insurance companies that collaborate with related insurance agents shall assume full and unconditional responsibility for any action or omission by such related insurance agents when acting on their behalf and on their behalf, to the extent that such action or omission relates to the rules of conduct referred to in this Part, the Royal Decree on Level 2 Rules of Conduct or the Royal Decree on Level 2 Rules of Conduct. However, the related insurance agent is also responsible in the event of manifest failure.
Insurance companies ensure that the insurance agents they collaborate with indicate the quality they act before dealing with a customer.
Insurance companies are required to control the activities of the related insurance agents with whom they collaborate.
§ 2. Insurance agents and insurance brokers who work with insurance sub-agents assume full and unconditional responsibility for any action or omissions committed by these insurance sub-agents when acting on their behalf.
Insurance agents and insurance brokers ensure that the insurance sub-agents with which they collaborate indicate the quality they act before dealing with a customer.
Insurance agents and insurance brokers are required to control the activities of insurance sub-agents with which they collaborate.
PART 7. - THE BODY OF THE CONTROL
PART I^er. - Organization of control and collaboration between authorities
Art. 280. § 1^er. Unless otherwise expressly provided for in this Act, FSMA shall monitor compliance with the provisions of this Act and its enforcement orders and regulations.
§ 2. Derogation from paragraph 1^er, the WCO is responsible for monitoring compliance with the provisions of this Act and its enforcement orders that relate to mutualist societies referred to in sections 43bis, § 5, and 70, §§ 6, 7 and 8, of the Act of August 6, 1990 on mutuality mutualities and national mutuality unions, and those relating to insurance intermediaries referred to in article 68 of the Act of 26 April 2010 on the provisions of insurance
With respect to the control and sanction powers provided for in this Act and its enforcement orders with respect to mutualist companies and insurance intermediaries referred to in paragraph 1^er"the MSDS" shall be read as "the MCO", except in the provisions that establish a regulatory jurisdiction of the ADMDS and in the provisions concerning which the Act itself provides a separate regime for control exercised by the MCO. For orders to be taken by the King under this Act, on the advice of the MSDS, the notice of the MCO should also be collected if it is provided that mutualist companies and/or insurance intermediaries referred to in paragraph 1^er fall within the scope of the orders in question.
FSMA and OCM enter into a cooperation agreement that regulates the exchange of information and organizes the uniform application of the law.
Art. 281. FSMA is responsible for monitoring compliance by Belgian insurance companies and foreign insurance companies, with the exception of EEA insurance companies, with rules that, in accordance with Article 45, § 1^er, 3°, f, of the Act of 2 August 2002, aim to guarantee honest, fair and professional treatment of interested parties.
Art. 282. In order to ensure effective and coordinated control of insurance companies, the Bank and FSMA conclude a protocol, which they publish on their respective website.
This protocol sets out the modalities for collaboration between the Bank and FSMA in all cases where the law provides for a notice, consultation, information or other contact between the two institutions, as well as in cases where a dialogue between the two institutions is necessary to ensure uniform enforcement of the legislation.
Art. 283. Where, in the exercise of its control over compliance with the provisions of Part 6 of this Act, MSDS is subject to practices contrary to legislation other than that Act, it shall inform the authorities which have these matters in their powers. Similarly, they inform FSMA when their services have found violations of the laws, orders or regulations committed by companies and persons subject to this Act. This information remains subject to the professional secrecy to which these authorities are held.
Art. 284. In order to allow for the proper application of this Act and its enforcement orders and regulations, FSMA cooperates with the Bank, with the competent authorities of EEA member States, with the competent authorities within the meaning of Article 2, point 11, of Directive 2002/92/EC and with the authorities of third countries with similar vocations, and may exchange confidential information with these authorities in accordance with the provisions of Articles 75 and 77, §§ 1^er and 2, Act of 2 August 2002.
Art. 285. Any complaint made by the head of offences under this Act must be brought to the attention of the FSMA by the judicial or administrative proceeding before it.
Any criminal action by the head of the offences referred to in paragraph 1^er must be brought to the attention of the MSDS at the due diligence of the court of law which is seized of it.
PART II. - The exercise of control
CHAPTER 1^er. - General provisions
Art. 286. § 1^er. The FSMA determines the information that insurers, reinsurance companies and insurance and reinsurance intermediaries are required to provide it to verify whether these insurers, companies and intermediaries comply with the legal and regulatory provisions applicable to them. FSMA also determines the frequency and modalities of transmission of this information.
§ 2. On a simple request from the MSDS, insurers, reinsurance companies and insurance and reinsurance intermediaries are required to provide all information and to issue any documents necessary for the performance of their mission, within the time frame it determines. The information and documents referred to in this paragraph must be written at least in the language imposed by law or decree.
The FSMA can conduct inspections at the Belgian main office of insurers, reinsurance companies, insurance and reinsurance intermediaries or at their branches, agencies and offices in Belgium and take note of and copy on site of any information in possession of insurers, reinsurance companies, and insurance and reinsurance intermediaries, after, in the case of an insurance company concerned with the EEA,
FSMA may carry out the inspections referred to in paragraph 2 to branches of Belgian insurers established abroad, with the prior information of the competent authorities of that State in the case of a Belgian insurance company branch established in a member state of the EEA. It may also request the competent authorities of the State member of the branch of a Belgian insurance company to carry out such inspections on its behalf.
Insurance and reinsurance intermediaries are required to provide the ADMSP, upon request, with any information regarding the insurance contracts they hold.
FSMA may, for the purposes of this Article, delegate members of its staff or independent experts who report to it.
§ 3. If applied to an insurer of the provisions of section 288, the MSDS may:
(a) extend the request for information or documents and the on-site verification referred to in paragraph 2, subparagraphs 1^er and 2, to any company established in Belgium on which the insurer, alone or jointly or in conjunction with others, exercises, in law or in fact, control within the meaning of Book II, Title II, of the Royal Decree of 30 January 2001 carrying out the corporate code;
(b) do the same with respect to companies or organizations established in Belgium that have passed a management, reinsurance or other agreement with the insurer that may transfer management;
(c) extend, under international conventions, the control referred to in paragraph 2 to branches and subsidiaries, established abroad, of Belgian insurers. FSMA may, for the purposes of this point c, enter into agreements with foreign authorities.
This extension, which must be the subject of a reasoned decision, may have no other objective than the audit of the insurer's compliance with the commitments it has entered into with respect to insurance licensees, insured persons, beneficiaries or any third party with an interest in the performance of insurance contracts.
CHAPTER 2. - Recovery measures
Art. 287. Without prejudice to the application of section 22, FSMA requires the withdrawal or reformation of the contractual or advertising documents to which it finds that they are not in accordance with the provisions provided by or under the law.
FSMA informs the Bank of cases where it required the withdrawal or re-training of contract documents in accordance with paragraph 1^er.
Art. 288. § 1^er. Where FSMA finds that a Belgian insurer or a foreign insurer, other than an EEA insurance company, does not operate in accordance with the provisions of this Act and its enforcement orders and regulations, the insurer shall, within the time it determines, remedy the situation identified.
FSMA informs the Bank of the facts found in the head of the insurance company concerned.
§ 2. Without prejudice to the other measures provided by or under the law, FSMA may, if it has not been remedyed at the end of the period imposed by it in accordance with subsection 1^ertake all appropriate measures, including prohibiting insurers from entering into new insurance contracts or certain categories of new insurance contracts, on the understanding that, in the case of foreign insurers, this prohibition will apply only to insurance contracts relating to risks or commitments in Belgium.
FSMA informs the Bank of the measures it has taken under this subsection with respect to insurance companies.
§ 3. If the measures contemplated by FSMA are likely to result in the suspension or prohibition of the direct or indirect exercise of the activity of an insurance company, FSMA shall notify the Bank of the measures it wishes to take.
Upon receipt of this information, the Bank has a 10-day time limit to oppose the measures envisaged. Upon expiry of this 10-day period, the Bank is deemed not to oppose the measures envisaged.
The Bank motivates its decision to oppose the measures envisaged and communicates it to the MSDS by all means. The Bank determines the time frame for which the measures envisaged cannot be implemented, without the time limit exceeding 30 days. This period may be extended with the consent of FSMA.
In the absence of agreement between the Bank and the MSDS, the Bank may establish the arbitration procedure referred to in Article 36 bis, § 4, of the Act of 2 August 2002. If it uses this procedure, the Bank informs the MSDS prior to the expiry of the aforementioned period.
If the Bank does not use the possibility provided for in paragraph 2 or paragraph 4, the ADMSP may take the measures envisaged under paragraph 2.
§ 4. In case of a serious and systematic violation of the rules referred to in Article 45, § 1^erParagraph 1^er, 3°, or § 2, of the law of 2 August 2002, the Bank may revoke the approval upon request of the FSMA in accordance with the procedure and procedure established by section 36bis of that Act.
§ 5. ADMSP may apply to the insurer to which the insurer addresses a reinstatement pursuant to paragraph 1^er suspending the commercialization or certain forms of commercialization of the insurance contract concerned in Belgian territory as long as the legal or regulatory provisions in question are not complied with. The injunction of suspension of commercialization may extend to commercialization via the whole or part of the persons to whom the insurer to whom the MSDS injunction is addressed, appeals for commercialization. The insurer to whom the injunction is addressed has the obligation to immediately communicate this suspension of commercialization to all persons to whom it calls for the marketing of the insurance contract in question on Belgian territory and to which the suspension of commercialization extends. In the interest of financial products and services users, FSMA can make this decision public. The suspension of commercialization is lifted by FSMA when it is determined that the relevant legal or regulatory provisions are now being complied with.
FSMA informs the Bank of the measures it has taken under paragraph 1^er.
§ 6. Without prejudice to the provisions of Article 277, § 2, the WCO is solely competent to adopt the measures provided for in this Article with respect to mutualist societies referred to in Articles 43 bis, § 5, and 70, §§ 6, 7 and 8, of the Act of 6 August 1990 on mutuality and national mutuality unions.
Art. 289. Where the competent authorities of another Member State in which a Belgian insurance company has established a branch or carries out activities in the free provision of services, notify the FSMA that the company has breached the legal, regulatory or administrative provisions applicable in that Member State, to which these authorities are responsible for overseeing and which in Belgium fall within the scope of the FSMA, the FSMA shall, as soon as possible, take the most appropriate measures as set out in the article FSMA advises the above authorities.
Art. 290. Without prejudice to the possible application of Article 288, § 5, the MSDS may, in the event of an extreme emergency, adopt the measures referred to in Articles 288 and 289 without prior adjustment.
Art. 291. § 1^er. When FSMA finds that an EEA insurance company does not comply with the legislative and regulatory provisions applicable in Belgium in its area of jurisdiction, it still requires the insurance company to remedy, within the time it determines, the situation identified.
FSMA informs the Bank of the facts found in the head of the EEA insurance company concerned.
§ 2. If the situation has not been corrected at the end of the time limit imposed by it in accordance with paragraph 1^er, FSMA informs the competent authorities of the original member state of the EEA insurance company.
In the event of a persistent breach, FSMA may, after informing the competent authorities of the original member state of the EEA insurance company, take appropriate measures to prevent further irregularities. In particular, if circumstances so require, the ADM may prohibit this insurance company from continuing to enter into insurance contracts or certain categories of insurance contracts relating to risks or liabilities in Belgium.
FSMA informs the Bank of the measures it has taken pursuant to paragraph 2.
§ 3. FSMA may also enjoin the EEA insurance company to which it addresses a stay under paragraph 1^er suspending the commercialization or certain forms of commercialization of the insurance contract concerned in Belgian territory as long as the legal or regulatory provisions in question are not complied with. The injunction of the suspension of commercialization may extend to commercialization via the whole or part of the persons to which the EEA insurance company to which the injunction of the MSDS is addressed, appeals for commercialization. The EEA insurance company to which the injunction is addressed has the obligation to immediately communicate this suspension of commercialization to all persons to whom it appeals for the marketing of the insurance contract in question on Belgian territory and to which the suspension of commercialization extends. In the interest of financial products and services users, FSMA can make this decision public. The suspension of commercialization is lifted by FSMA when it is determined that the relevant legal or regulatory provisions are now being complied with.
FSMA informs the Bank, as well as the competent authorities of the original member state of the EEA insurance company, of the measures it has taken under paragraph 1^er.
§ 4. Without prejudice to the application of paragraphs 1^er, 2 or 3, FSMA may, in the event of an emergency, take appropriate measures to prevent breaches of the rules that are applicable to the EEA insurance company and that fall within its jurisdiction. In particular, the MSDS may prohibit the insurance company from continuing to enter into insurance contracts or certain categories of insurance contracts relating to risks or liabilities in Belgium.
FSMA immediately informs the Bank and competent authorities of the original member state of the insurance company of the measures it has taken.
§ 5. FSMA may, at the request of the competent Belgian authorities in this matter, apply the preceding paragraphs with respect to an EEA insurance company when it has performed in Belgium acts contrary to the general statutory or regulatory provisions of interest, as referred to in Article 15.
Art. 292. § 1^er. Where the ADMDS finds that an insurance or reinsurance intermediary does not work in accordance with the provisions of this Act or its enforcement orders and regulations, other than sections 273, 275 and 277, it identifies these breaches and sets out the time limit within which it must be corrected to the situation.
It may prohibit for the duration of this period the exercise of all or part of the activity of the insurance or reinsurance intermediary and suspend the registration in the register.
If, at the end of the time limit imposed pursuant to paragraph 1^er, the FSMA finds that it has not been remedied to the breaches, it removes the registration of the related insurance or reinsurance intermediary.
Radiation leads to a ban on the exercise of regulated activity and to the title.
§ 2. Derogation from the provisions of paragraph 1^erwhere the MSDS finds that an insurance or reinsurance intermediary does not comply with the provisions of Article 268, § 1^er, 3°, 6° and 8°, it still puts it in place to remedy the breach within one month of the stay.
If, in the cases referred to in paragraph 1^er, at the end of the month period, the failure was not corrected, and in the event of a bankruptcy declaration of the insurance or reinsurance intermediary, the registration of the latter in the register expires on its own. The MSDS advises the related insurance or reinsurance.
§ 3. When FSMA finds that an insurance or reinsurance intermediary does not work in accordance with the provisions of sections 273, 275 and 277 and/or with the orders and regulations made for their execution, it identifies these breaches and sets out the time frame for the relief of the situation.
It may prohibit for the duration of this period the exercise of all or part of the activity of the insurance or reinsurance intermediary and suspend the registration in the register.
Without prejudice to the other measures provided by or under the Act, ADMDS may, if it has not been remedyed at the end of the period imposed by it in accordance with paragraph 1^ertake the measures referred to in section 36bis, § 2, of the Act of 2 August 2002.
If, at the end of the time limit imposed pursuant to paragraph 1^er, the FSMA finds that it has not been remedied to the breaches, it may remove the registration of the insurance or reinsurance intermediary.
Radiation leads to a ban on the exercise of regulated activity and to the title.
Art. 293. § 1^er. ADM's determinations referred to in sections 288 to 292 outweigh their effects on the insurer, the reinsurance undertaking or the insurance or reinsurance intermediary as of the date of their notification to the insurer or reinsurance by registered letter to the position or with acknowledgement of receipt. With regard to the measures taken with respect to insurers or reinsurance companies, they emerge from their effects on third parties as of their publication in the Belgian Monitor.
§ 2. The ADMF Management Committee may entrust to a member of the ADMF staff designated by the ADMF the notification of decisions to register or refuse to register insurance and reinsurance intermediaries, as well as decisions to amend, reinstatement, suspension and delist registration.
§ 3. The ADMSP may, at the expense of the insurer or the insurance or reinsurance intermediary, issue the measures it has taken with respect to the insurer, in newspapers and publications of its choice, or in the places and for the duration it determines. It can also publish these measures on its website.
Art. 294. § 1^er. Without prejudice to other measures provided by or under the Act, if the insurer or reinsurance company to which/to which the insurer has directed to comply with the provisions of this Act or its enforcement orders and regulations, remains in default on the expiry of the period imposed by the insurer, the ADM may, the insurer or reinsurance undertaking that has been able to assert its means:
1° inflict on the latter/this last one an astreinte which can not be, per day delay calendar, greater than 50,000 euros, nor in total, for the ignorance of the same injunction, greater than 2.500,000 euros;
2° make public its view of the offence or the breach in question.
§ 2. The breaches imposed under this section are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
§ 3. In urgent cases, FSMA may publicize its view of the offence or breach without a pre-order order, since the insurer or reinsurance company was able to assert its means.
Art. 295. § 1^er. Without prejudice to the other measures provided by or under the Act, if the intermediary of insurance or reinsurance to which it has directed to settle with the provisions of this Act or its enforcement orders and regulations, remains in default on the expiry of the period imposed by it, the ADMSP may, if the intermediary has been able to assert its means:
1° to inflict on the latter a breach that cannot be, per day delay calendar, greater than 5,000 euros, or in total, for the lack of knowledge of the same injunction, greater than 75,000 euros;
2° make public its view of the offence or the breach in question.
§ 2. The breaches imposed under this section are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
§ 3. In urgent cases, the ADMF may publicize its view of the offence or breach without a pre-order order, as the insurance or reinsurance intermediary has been able to assert its means.
CHAPTER 3. - Responsibility
Art. 296. Directors, managers or general agents of insurance companies shall be liable to insurance licensees, insured persons, beneficiaries or any third party having an interest in the performance of insurance contracts, any damage resulting from the breach of the obligations imposed on insurance companies by this Act and its enforcement orders and regulations.
They are not discharged from this responsibility for the offences to which they have not taken part only if no fault is attributed to them and if they cannot be blamed for not having implemented all the means at their disposal to prevent or limit the damage.
When several persons are, in accordance with the preceding paragraphs, responsible for the same damage, solidarity may be invoked.
CHAPTER 4. - Special skills
in the case of liquidation and remediation procedures
Art. 297. § 1^er. FSMA may request the competent Belgian authorities and the competent authorities of the member State of origin of an insurance company information on the course of a remediation or liquidation procedure.
§ 2. For the purposes of this chapter, the notions of remediation and liquidation procedures must be understood in the meaning given to them in the Act of 9 July 1975.
Art. 298. When the competent authorities of an insurance company have taken the decision to open a liquidation procedure or adopt a remediation measure, FSMA may, after consultation with the competent authorities of the insurance company, issue a notice to the Belgian Monitor and in two newspapers or periodicals with regional distribution.
This notice contains at least one extract of this decision and mentions the competent authorities, the applicable law and, where applicable, the designated liquidator or the remediation Commissioner, and is published at least in one of the official languages of Belgium.
PART III. - Administrative sanctions
Art. 299. § 1^er. Without prejudice to the other measures provided for by or under the law, FSMA may, when it finds an offence to the provisions of this Act or its enforcement orders and regulations in the head of an insurer or reinsurance company, impose an administrative fine on the offender, which may not exceed, for the same fact or for the same set of facts, 2.500,000 euros.
§ 2. The fines imposed under this section are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
Art. 300. § 1^er. Without prejudice to the other measures provided for by or under the law, FSMA may, where it finds an offence under this Act or its enforcement orders and regulations in the head of an insurance or reinsurance intermediary, impose an administrative fine on the offender, which may not exceed, for the same fact or for the same set of facts, 75,000 euros.
§ 2. The fines imposed under this section are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
PART IV. - The Insurance Commission
Art. 301. § 1^er. It is established under the name "Commission des Assurances" an advisory committee whose mission is to deliberate on any matters submitted to it by the Minister or FSMA.
The Board may issue its notices of initiative on any issues related to insurance transactions that fall within the competence of the MSDS.
§ 2. The Commission consists of twenty-six members appointed by the King.
Eleven members are selected from representatives of insurance companies authorized to carry out insurance activities in Belgium, eight of which are presented on a double list by the most representative professional organizations.
Six members are selected from those who may represent the interests of consumers; two of them are presented on a double list by the Consumer Council. One of these six members represents the interests of industrial and commercial enterprises.
Three members are selected from the representatives of insurance intermediaries operating in Belgium, presented on a double list by the most representative professional organizations.
The other six members, one of whom will be appointed on the proposal of the Minister of Finance, must present qualifications and professional experience in the area of activities controlled by the FSMA.
Ministers having in their jurisdiction problems relating to the prevention, liability or repair of accidental damage to persons or property may, as well as the WCO, WSP and the Industrial Accidents Fund, delegate an observer to the Commission.
The King also designates for each member an alternate. Alternates are chosen in the same way as the actual members.
§ 3. The Commission may establish within it specialized sections by branch or group of insurance branches; sections specific to mortgage or capitalization transactions may also be incorporated.
These sections are responsible for the preparation of the work of the Commission. The sections are composed taking into account the technical characteristics of the transactions considered and respecting the balance between the interests of service providers and consumers. Each section has at least four members of the Commission. Both the Commission and the sections can appeal to non-member experts of the Commission, who they believe is useful to collect the opinion.
§ 4. The term of office of the members of the Commission is six years; It's renewable.
Exceptionally, during the first appointment, the term of seven members, designated by lot, will be limited to two years. The term of eight other members, also designated by lot, will be limited to four years.
The King shall designate the Chairperson of the Commission as a member of the Commission and shall determine the allowances for the members of the Commission and the experts as may be required.
§ 5. FSMA is the secretariat of the Commission and sections. Members of the FSMA Executive Committee, who may be assisted by any member of the FSMA staff, may attend all meetings of the Commission or sections.
The Commission shall establish its rules of procedure and submit it to the Minister for approval.
PART V. - Extrajudicial complaints system
Art. 302. § 1^er. An extra-judicial complaints system is established to help resolve disputes between insurance companies and insurance intermediaries and, on the other hand, their clients, by rendering a notice or by acting as mediator.
This ombudsman insurance service must take the form of a legal entity.
§ 2. The ombudsman service has the following tasks:
1° to examine all complaints from insurance licensees, insured persons, beneficiaries and third parties having an interest in the performance of the insurance contract
- the activities of insurance companies within the scope of this Act or the Act of 9 July 1975, including EEA insurance companies that have an establishment in Belgium and/or carry out insurance activities, for contracts governed by Belgian law, and/or related to
- the activities of insurance intermediaries within the scope of this Act, including insurance intermediaries that have as a member State of origin another member state of the EEA and which operate in Belgium, for acts governed by provisions of general interest applicable to them,
and propose a solution;
2° make mediation to facilitate amicable resolution of disputes which are the subject of a complaint as referred to in 1°, on the understanding that it is not prejudiced to the competences that articles 58, 8° and 9°, 64bis and 64ter of the Act of 10 April 1971 on industrial accidents attribute to the Labour Accidents Fund with regard to mediation, the control of social compensation to victims and
3° to decide on questions relating to the application of the "consumer" portion of the codes of conduct of insurance companies and insurance intermediaries;
4° to provide advice and recommendations in its missions, also for individual insurance companies and intermediaries.
§ 3. Within the ombudsman insurance service, a supervisory board is established. It consists of a representative of insurance companies, a representative of insurance intermediaries, two consumer representatives, a representative of the FSMA, a representative of the Minister and the SPF Economy, SMEs, Average Classes and Energy and an independent insurance expert.
The missions of the Supervisory Board are as follows:
1° to provide advice to the board of directors of the ombudsman service on the organization and operation of the ombudsman service;
2° exercise general supervision of independence and impartiality of the ombudsman service;
3° report annually to the King on the operation of the ombudsman service;
4° provide the secretariat of the Pricing Monitoring Bureau, referred to in section 216.
§ 4. The King may, by order deliberately in the Council of Ministers, take on the advice of FSMA, clarify the provisions of the preceding paragraphs and in particular determine the following:
- the type of complaints and disputes that may be submitted to the Ombudsman service;
- the composition of the bodies and the functioning of the ombudsman service;
- the terms of membership in the ombudsman service; the King may also charge the FSMA to collect applications and withdrawals and inform the ombudsman service;
- the funding arrangements for the ombudsman service; the financing is made by all Belgian insurance companies and all foreign insurance companies that carry out insurance activities in Belgium, and through insurance brokers who are authorized to carry out an insurance intermediation activity in Belgium, whether or not it is through the professional association to which they have joined; the King may also pay the payment of the contributions and charge the MSDS with the recovery of these contributions;
- the procedure to be followed and the time limit for rendering the notice or mediation;
- the form in which the notice or intervention of the mediator must, if any, be made public (public);
- the terms and contents of the annual report.
Art. 303. FSMA may request the ombudsman insurance service the information necessary to carry out its legal missions.
FSMA determines the content of the requested information as well as the mode and form according to which this information should be provided.
The SPF Economie, P.M.E., Average Classes and Energy may, under the annual report of the ombudsman service, obtain additional information from the ombudsman insurance service, whenever the Federal Public Service considers it necessary to develop legislative or regulatory initiatives.
PART 8. - PENAL PROVISIONS
Art. 304. shall be punished by imprisonment of one month to five years and a fine of 1,000 to 10,000 euros or only one of these penalties, the insurance intermediaries that have intervened in the subscription of an insurance contract in contravention of Article 268, § 1^erFive.
Art. 305. Are punished by imprisonment from one month to five years and a fine of 1,000 to 10,000 euros or of one of these penalties only, directors, persons in charge of effective management, managers or agents of an insurer who knowingly and voluntarily made inaccurate statements to the FSMA, its staff members or persons mandated by it, or who refused to provide the information
The same penalties are applicable to directors, persons responsible for the effective management, commissioners, managers or agents of an insurer who have not complied with their obligations under this Act or its enforcement orders and regulations.
Art. 306. Assimilated to lotteries and subject to penalties set out in sections 302 and 303 of the Criminal Code, any savings, capitalization or insurance transactions involving the accumulation of amounts to be distributed among the concerned, either by drawing lots or by stipulating the exclusive survival of any mathematically determined undertaking on the basis of individual contributions or participations.
Art. 307. Are punished by imprisonment from one month to five years and a fine of 1,000 to 10,000 euros or only one of these penalties:
(1) those who, as an insurer or an agent of an insurer, attempt to enter into or enter into null contracts under sections 97 or 159;
2° those who, as an insurance intermediary, intervene in the conclusion of such contracts;
3° those who, as an insurer or an insurer's agent, do not comply with the provisions set out in sections 213 to 217.
Art. 308. § 1^er. Without prejudice to the application of more severe penalties provided for in the Criminal Code, the penalty shall be imposed by imprisonment of eight days to three months and a fine of 200 to 2,000 euros or only one of those penalties, which in a fraudulent intent:
- operates an insurance or reinsurance intermediary activity without being registered in accordance with the provisions of section 262;
- does not comply with the provisions of Article 265;
- requires a worker to offer insurance on sale when the worker does not meet the conditions set by Part 6;
- accepts insurance contracts submitted by an unregistered insurance or reinsurance intermediary;
- offers an agency contract to an unregistered insurance or reinsurance intermediary;
- fails to communicate to FSMA the termination or termination of the contract referred to in Article 268, § 1^er, 3° ;
- omits to mention information referred to in articles 273, 274 and 275;
- fails to communicate to the MSDS any changes to the information contained in its registration record in accordance with the provisions of Part 6, Chapter 2.
Persons convicted of any of the above offences may be subject to the final or provisional closure of a party or all premises assigned to the exercise of the insurance or reinsurance intermediary activity.
If these offences are due to negligence, they will be punished with a fine of 1 to 25 euros.
§ 2. Any person who refuses to provide the information and documents that the MSDS has requested in order to be able to control the application of the provisions of Part 6, which opposes the investigation measures or makes a false statement, shall be punished by imprisonment for eight to fifteen days and a fine of 26 to 1,000 euros or only one of these penalties.
Art. 309. All provisions of Book 1^er the Criminal Code, without exception of Chapter VII and Article 85, shall apply to the offences provided for in this Act.
Art. 310. Insurers are civilly liable for fines to which their directors, commissioners, directors, managers or agents are convicted, in accordance with the above provisions.
PART 9. - OTHER NATURAL PROVISIONS
PART 1^er. - Transitional provisions
Art. 311. § 1^er. The provisions of Part 2, Part III, of this Act shall apply to insurance contracts entered into after the day on which this Act comes into force. For insurance contracts that have been signed before the effective date of this Act, they apply only from the date on which one of the following amendments is made to the contract:
- the existing insurance contract is related to one or more new investment funds or the management regulation is amended; or
- performance conditions (minimum) are amended.
§ 2. Sections 44, 50 and 51 apply immediately to contracts offered and/or entered into after the effective date of this Act. For insurance contracts that have been signed prior to the effective date of this Act, these sections apply as soon as these contracts are amended and/or renewed and no later than the first day of the 13th month following the effective date of this Act.
§ 3. Subject to subsection 4 and with the exception of Chapter 5 of Part 4 title IV, the provisions of Parts 4 and 5 of this Act shall apply both to contracts entered into at or after the date of entry into force of this Act and to contracts previously entered into that date.
§ 4. If the event opening the recursory action referred to in section 88 occurred before the date of entry into force of this Act, section 89, § 1^er, is applicable to the prescription of recursory action only as long as the statute of limitation period under section 35, § 1^er, before section 34 of the Act of 25 June 1992 on the land insurance contract, has not yet expired on the date of coming into force of this Act.
If the event giving rise to the recursory action referred to in section 256 occurred before the date of entry into force of this Act, section 256, second sentence, is applicable to the limitation of recursory action only if the statute of limitation period that is current under section 32 of the Act of 11 June 1874 containing titles X and XI of the Commercial Code has not yet come into force on
§ 5. Insurance intermediaries that, as of April 30, 2014, were registered in the Register of Insurance Intermediaries held by the MSDS under section 262, § 1^er, or in the register of insurance intermediaries held by the CMO, under section 262, § 3, shall, in order to maintain their registration, comply with section 270, § 1^er, 1°, A, littéra f), no later than 1^er May 2015.
§ 6. Insurers make formal adjustments to insurance contracts and other insurance documents to the provisions of this Act no later than the first day of the 13th month following that of the publication of the Act. Until that date, existing and new insurance contracts may not be in compliance with the provisions of this Act.
As long as insurance contracts and other insurance documents have not been adapted in accordance with paragraph 1^er this paragraph, the clauses of these documents which refer to the provisions of the Act of 9 July 1975 relating to the control of insurance companies, the Act of 25 June 1992 on the land insurance contract, the Act of 11 June 1874 containing the titles X and XI, Book I, the Commercial Code and the Act of 27 March 1995 relating to the intermediation in insurance and reinsurance and the distribution of insurance,
Art. 312. Sections 313 to 315 are applicable to insurance contracts relating to risks in EEA member states that fall under the "non-life" activity group and which were concluded before the date of 17 December 2009, as referred to in Article 28 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
These provisions are also applicable to insurance contracts relating to risks in EEA member states that fall under the "non-life" activity group and do not fall within the scope of Regulation (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
Art. 313. § 1^er. Notwithstanding any provision to the contrary, where the contract is related to risks in Belgium and the insurance taker has its habitual residence or central administration, the applicable law is Belgian law.
Derogation from paragraph 1^er, where the contract is related to risks in Belgium and the insurance taker does not have his habitual residence or central administration, the parties to the insurance contract may choose to apply either the Belgian law or the law of the country where the insurance taker has his habitual residence or central administration.
§ 2. When the contract is related to risks in a member state of the EEA, other than Belgium, and the parties have not chosen the applicable law, the contract is governed by the law of the Member State where the risk is located.
§ 3. When the insurance taker carries on a commercial, industrial or liberal activity and the contract covers two or more risks related to these activities located in Belgium and in one or more other EEA member States, the parties to the contract may choose the laws of the Member States where these risks are located or that of the country where the insurance taker has his or her habitual residence or central administration.
§ 4. Notwithstanding paragraph 1^erParagraph 2 and paragraphs 2 and 3, where the Member States referred to in these paragraphs give greater freedom of choice of the law applicable to the contract, the parties may avail themselves of that freedom.
§ 5. Notwithstanding paragraphs 1^er, 2 and 3, where the contract relates to risks in Belgium but these risks are limited to claims that may arise in another EEA Member State, the contracting parties may choose the law of that State.
§ 6. For major risks, parties to the contract have the free choice of the applicable law.
In this case, the choice by the parties of a law other than the Belgian law cannot, when all the elements of the contract are located at the time of this choice in the territory of Belgium, infringe upon the imperative provisions of Belgian law.
§ 7. The choice referred to in paragraph 1^erParagraph 2 and paragraphs 2 to 6 shall be expressly or in a certain way result from the terms of the contract or the circumstances of the case. If this is not the case or if no choice has been made, the contract is governed by the law of the contract, among the Member States that come into account under paragraph 1^erParagraph 2 and paragraphs 2 to 6, with which it presents the closest links.
If a part of the contract is separable from the rest of the contract and has a closer connection with another of the Member States that enter into account in accordance with the above paragraphs, it may be applied to that part of the contract of the law of that other Member State.
It is presumed that the contract presents the closest links with the Member State where the risk is located.
§ 8. Where a Member State includes several territorial units, each of which has its own rules of law in respect of contractual obligations, each unit is considered to be a State for the purpose of identifying the law applicable under sections 313 to 315.
Art. 314. § 1^er. If the Belgian judge is seized, the provisions of Article 313 cannot affect the application of the rules of the Belgian law which necessarily govern the situation, regardless of the law applicable to the contract.
It may be given effect to the peremptory provisions of the law of the Member State in which the risk is located or a Member State that imposes the obligation of insurance, if, and to the extent that, according to the law of that Member State, these provisions are applicable regardless of the law governing the contract.
§ 2. The mandatory provisions of Belgian law are applicable regardless of the law chosen by the parties when the risk is located in Belgium or when Belgium imposes the obligation of insurance.
§ 3. Where the contract covers risks in more than one Member State, the contract shall be considered, for the purposes of this article, to include several contracts, each of which shall be limited to one Member State.
Art. 315. When in the event of compulsory insurance there is a contradiction between the law of the Member State where the risk is located and that of the Member State which imposes the obligation to subscribe insurance, the latter prevails.
Art. 316. Sections 25, 27 and 313 to 315 are not applicable to contracts entered into before the effective date of section 16 of the Royal Decree of 22 February 1991 amending the Act of 9 July 1975 on the control of insurance companies.
Art. 317. Sections 318 and 319 are applicable to insurance contracts relating to commitments in EEA member states that fall under the "life" activity group and which were concluded before the date of 17 December 2009, as referred to in Article 28 of Regulation (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
These provisions are also applicable to insurance contracts relating to risks in EEA member states that fall under the "life" activity group and do not fall within the scope of Regulation (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
Art. 318. § 1^er. Notwithstanding any provision to the contrary, where the contract relates to commitments in Belgium, the applicable law is Belgian law.
Derogation from paragraph 1^er, where the insurance taker is a natural person who has his habitual residence in Belgium but is a national of an EEA member State other than Belgium, the parties may choose to apply the law of that Member State.
§ 2. When the contract relates to commitments in a member state of the EEA, other than Belgium, and the parties have not chosen the applicable law, the contract is governed by the law of the Member State where the undertaking is located.
§ 3. Where a Member State includes several territorial units, each of which has its own rules of law in respect of contractual obligations, each unit is considered to be a State for the purpose of identifying the law applicable under Articles 318 and 319.
Art. 319. § 1^er. If the Belgian judge is seized, the provisions of Article 318 shall not affect the application of the rules of the Belgian law which peremptoryly govern the situation, regardless of the law applicable to the contract. It may be given effect to the peremptory provisions of the law of the Member State where the undertaking is located, if, and to the extent that, according to the law of that Member State, these provisions are applicable regardless of the law governing the contract.
§ 2. The mandatory provisions of Belgian law are applicable regardless of the law chosen by the parties when the undertaking is located in Belgium.
PART II. - Implementing orders
Art. 320. The King shall, on the advice of FSMA, take such orders as are necessary for the execution of this Act.
The Minister may set the time limits for the ADMSP to issue its notice. In the event of non-compliance, the notice in question is no longer required.
Art. 321. § 1^er. Royal decrees deliberated in the Council of Ministers and carrying out Article 4, § 4, are taken on the joint proposal of the Minister of Justice, the Minister and the Minister of Social Affairs.
§ 2. The Royal Decrees pursuant to Part 4 are on the joint proposal of the Minister of Justice and the Minister.
However, Royal Decrees pursuant to sections 62, 98, 159, 167, 178 to 180 and 199 will be issued on the sole proposal of the Minister.
Royal Decrees pursuant to sections 212 to 224 will be issued on the joint proposal of the Minister and the Minister of Public Health.
§ 3. The King exercises the powers to Him entrusted by the provisions of Part 6 on the joint proposal of the Minister and the Minister of Average Class.
Art. 322. § 1^er. The Insurance Commission, referred to in Part 7, Part IV, is competent to issue notices concerning the orders to be made pursuant to Section 4, Part 2, Part I and II, Part 3, Part 3, Part 1 Part 3, Part 1^er Part 3 and Part 6.
The consultation of the Insurance Commission is not required with respect to the rules to be determined by the King under Article 4, § 4, and Article 268, § 1^er8°.
§ 2. The Insurance Commission is also competent to issue notices on the amendments to the enforcement orders made under section 212, § 1^erso on the possible repeal or replacement of these enforcement orders.
PART III. - Amendments
Amendments to the Act of 9 July 1975 on the control of insurance companies
Art. 323. In section 21 of the Act of 9 July 1975 on the control of insurance companies, the following amendments are made:
1° paragraph 1^er is replaced by the following:
§ 1^er. The Bank determines the information that insurance companies are required to provide to the Bank to verify whether these companies comply with the legal and regulatory provisions applicable to them and that fall within the Bank's jurisdiction. The Bank also determines the frequency and transmission of this information. ";
2° paragraph 1^erbis, paragraph 3, is replaced by the following:
"On a request from the Bank, insurance companies referred to in Article 2, § 1^er, are required to provide any information and to issue any documents that are necessary for the performance of its mission. ";
3° paragraph 1^erbis, paragraph 4, is replaced by the following:
"The Bank may, at the headquarters of the companies or their branches, agencies and offices in Belgium, be aware of all books, records, flyers and other documents, as well as carry out any investigations relating to the financial situation and activities of these companies. ";
4° paragraph 1^erbis, paragraph 5, is replaced by the following:
"The Bank may carry out inspections referred to in paragraph 4 with the branches of the Belgian companies established in another Member State, with the prior information of the competent authorities of that State. It may also request the competent authorities of the Member State of the branch to carry out such inspections on its behalf. ";
5° paragraph 1^erbis, paragraph 6, is replaced by the following:
"Insurance agents, brokers or intermediaries are required to provide, upon request, to the Bank, with respect to its jurisdiction, any information regarding the insurance contracts they hold."
Paragraph 1^erbis, paragraph 7, is replaced by the following:
"The Bank may, for the purposes of the preceding paragraphs, delegate members of its staff or independent experts, who report to it."
7° in paragraph 1^erter, paragraph 1^er, the words "the Bank and FSMA, each in its area of competence, can", are replaced by the words "the Bank can";
8° in paragraph 1^erter, paragraph 1^er, third dash, the words "The Bank and the FSMA can" are replaced by the words "The Bank can";
9° in paragraph 1^erter, last paragraph, the words "as well as compliance by this company with the commitments it has entered into with respect to insured persons or beneficiaries of insurance contracts" are deleted.
Art. 324. In section 21octies of the Act, the following amendments are made:
1° paragraph 1^er is replaced by the following:
"1^er. The Bank requires the withdrawal or re-training of contractual or advertising documents to which it finds that they are not in accordance with the provisions provided by or under the law. She informs the FSMA."
2° in paragraph 2, paragraph 2, the words "Article 138bis - 4, §§ 2 and 3, of the Law of 25 June 1992 on the Contract of Terrestrial Insurance" are replaced by the words "Article 204, §§ 2 and 3, of the Law of 4 April 2014 on Insurance and the words "Article 138bis - 2, of the Law of 25 June 1992 on the Contract of Terrestrial Insurance" are replaced by the words ".
Art. 325. In section 22 of the Act, the following amendments are made:
1° in paragraph 1^erParagraph 1^erthe words "and FSMA" are deleted;
2° in paragraph 1^er, paragraph 2, the words "The Bank and the MSDS can" are replaced by the words "The Bank can" and the words "that they formulate" are replaced by the words "that it formulates";
3° in paragraph 1^er, paragraph 4, the words "MAF and the Bank have declared" are replaced by the words "the Bank has declared";
4° in paragraph 2, paragraph 1^erthe words "and FSMA" are deleted;
5° in paragraph 2, paragraph 2, the words "or FSMA, each in its area of competence," are deleted.
Art. 326. Section 28 of the Act is replaced by the following:
"Art. 28. When the competent authorities of another Member State in which a Belgian legal insurance company has established a branch or carries out activities free of service, notify the Bank that this company has breached the legal, regulatory or administrative provisions applicable in that Member State, to which these authorities are responsible for overseeing and which in Belgium fall within the jurisdiction of the Bank, the Bank shall, as soon as possible, take the most appropriate measures to the company in question to the extent that She advises the aforementioned authorities.".
Art. 327. Section 69 of the Act is replaced by the following:
"Art. 69. Upon request from the Bank, insurance companies must submit all information and provide all documents for the control of compliance with the legal and regulatory provisions of general interest that are applied in Belgium to insurance companies and their activities and that fall within the scope of the Bank's jurisdiction. The information and documents referred to in this subparagraph shall be in the language imposed by law or decree.
For the same purpose, the Bank may conduct on-site inspections in the Belgian branch or take a copy of any information in possession of the insurance company, after having informed the competent authorities of the original Member State.
For the same purpose, insurance agents, brokers or intermediaries are required to provide the Bank, upon request, with any information regarding the insurance contracts for risks in Belgium, which they hold.
The Bank may, for the execution of the three preceding paragraphs, delegate members of its staff or independent experts, who report to it.".
Art. 328. In section 71 of the Act, the following amendments are made:
1° paragraph 1^er is replaced by the following:
§ 1^er. Where an insurance company fails to comply with the statutory and regulatory provisions applicable in Belgium in the area of competence of the Bank, the Bank shall, within the time it determines, remedy the situation.
The Bank informs FSMA of its intention to implement the preceding paragraph.
If, at the end of the period referred to above, the Bank has not been remedied to the situation, the Bank shall inform the competent authorities of the Member State concerned.
In the event of persistent breaches, the Bank may, after informing the competent authorities of the Member State of origin, take appropriate measures to prevent further irregularities. In particular, if circumstances so require, the Bank may prohibit this insurance company from continuing to enter into risk insurance contracts in Belgium. The Bank may, at the expense of the insurance company, issue the ban measure in newspapers and publications of its choice or in the places and for the duration it determines.
Article 26, § 2bis, is applicable.
The Bank shall inform FSMA of the measures it has taken pursuant to the preceding paragraphs. ";
Paragraph 2 is replaced by the following:
"§2. Without prejudice to the application of § 1^er, the Bank may, in the event of an emergency, take appropriate measures to prevent breaches of the rules that are applicable to insurance companies and that fall within its jurisdiction. In particular, the Bank can prevent insurance companies from continuing to enter into new contracts for Belgian risks. It may, at the expense of the insurance company, issue the ban measure in newspapers and publications of its choice or in the places and for the duration it determines.
The Bank shall immediately inform FSMA and the competent authorities of the Member State of origin of the measures it has taken. ";
3° in paragraph 4, the words "The MSDS and the Bank can" are replaced by the words "The Bank can".
Art. 329. In section 73/3 of the Act, the following amendments are made:
1° to paragraph 1^er, the sentence "The Bank and FSMA may issue a notice to the Belgian Monitor and in two regionally broadcast daily or periodicals." is replaced by the sentence "Article 298 of the Insurance Act of 4 April 2014 is applicable."
2° Paragraph 2 is repealed.
Art. 330. In article 73/4 of the same law, the words "and FSMA can" are replaced by the word "may".
Art. 331. In section 81 of the Act, the words "or FSMA, as the case may be," are deleted.
Art. 332. Article 82, § 1^er, of the same law, the words " FSMA or" and the words ", as the case may be, of FSMA or" are deleted.
Amendments to the Financial Sector Supervision and Financial Services Act of 2 August 2002
Art. 333. In Article 30ter, § 3, of the Act of 2 August 2002 on the supervision of the financial sector and financial services, inserted by the Act of 30 July 2013, a 3° /1 is inserted as follows:
"3° /1 provided that the King has used the authorization provided for in paragraph 1^er, paragraph 2, 4°, with respect to insurance and reinsurance intermediaries, Article 273, § 3, of the Insurance Act of 4 April 2014; "
Art. 334. Article 36, § 1^er, of the same law, as amended by the Royal Decree of 3 March 2011 and the Act of 30 July 2013, is supplemented by a paragraph written as follows:
"The MSDS may also enjoin the person to whom it addresses an injunction pursuant to paragraph 1^er suspending the marketing or certain forms of marketing of the financial product concerned in Belgian territory as long as the legal or regulatory provisions in question are not complied with. The injunction of suspension of marketing may extend to commercialization via the whole or part of the persons to whom the person to whom the MSDS injunction is addressed, appeals for commercialization. The person to whom the injunction is addressed has an obligation to immediately communicate this suspension of commercialization to all persons to whom it appeals for the marketing of the financial product in question in Belgian territory and to which the suspension of commercialization extends. In the interest of financial products and services users, FSMA can make this decision public. The suspension of commercialization is lifted by FSMA when it is determined that the relevant legal or regulatory provisions are now being complied with. ".
Art. 335. Article 36bis, § 2, paragraph 1^er, 1°, of the same law, the words "some financial instruments, investment products or insurance products" are replaced by the words "some categories of financial products".
Art. 336. Article 45, § 1^er, of the same law, replaced by the Royal Decree of 3 March 2011 and amended by the Acts of 13 November 2011 and 30 July 2013, the following amendments are made:
1° to paragraph 1^er, 2°, e, the words "the Act of 27 March 1995 on intermediation in insurance and reinsurance and the distribution of insurance" are replaced by the words "the Act of 4 April 2014 on insurance";
2° to paragraph 1^er, 3°, c. is replaced by the following:
"c. the Insurance Act of 4 April 2014 and its enforcement orders and regulations;"
3° to paragraph 1^er, 3°, e. is repealed;
Paragraph 3 is replaced by the following:
"By derogation from paragraph 1^ercontrol of compliance under paragraph 1^er, 3°, and in § 2, by the mutualist societies referred to in articles 43bis, § 5, and 70, §§ 6, 7 and 8, of the law of 6 August 1990 on mutualities and national unions of mutualities falls within the competence of the Office for the Control of Mutuals and National Unions of mutualities. ".
Amendments to the Act of June 16, 2006 relating to public tenders of investment instruments and admissions of instruments for trading in regulated markets
Art. 337. Article 4, § 1^er, of the Act of 16 June 2006 on Public Offerings of Investment Instruments and Admissions of Investment Instruments to Negotiation in Regulated Markets is supplemented by a 3rd bis drafted as follows:
"3° bis the rights that allow for an investment of a financial type and that directly or indirectly relate to one or more movable property or on a farm, organized in association, indivision or grouping of law or fact, and whose management, collectively organized, is entrusted to one or more persons acting in a professional capacity, unless these rights include unconditional, irrevocable and integral delivery of goods in kind;
The King may, by Royal Decree taken on the advice of the MSDS, extend or restrict the types of property referred to in paragraph 1^er".
Amendments to the Act of 31 July 2009 amending the Act of 27 March 1995 on the intermediation of insurance and reinsurance and the distribution of insurance and the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments
Art. 338. In section 3 of the Act of 31 July 2009 amending the Act of 27 March 1995 on the intermediation of insurance and reinsurance and the distribution of insurance and the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments, the following amendments are made:
(1) (a) is repealed;
2(b) is repealed;
3°(d) is repealed;
4° (e) is repealed.
Art. 339. Section 7 of the Act is repealed.
Art. 340. Chapter 4 of the Act is repealed.
Amendments to the Act of January 21, 2010 amending the Act of June 25, 1992 on the land insurance contract with respect to the insurance of the remaining balance due to persons with increased health risk
Art. 341. Section 2 of the Act of January 21, 2010 amending the Act of June 25, 1992 on the land insurance contract with respect to the insurance of the remaining balance due to persons with increased health risk is repealed.
Art. 342. Sections 4 to 17 of the Act are repealed.
Art. 343. In section 18 of the Act, the following amendments are made:
1st paragraph 1^er is repealed;
2° in paragraph 2, the word "However," is deleted.
Amendments to the Insurance Act of 4 April 2014
Art. 344. Article 4, § 1^er, paragraph 2, of the Act of April 4, 2014 on insurance, the word "and" is deleted and the words "270bis" are inserted between the words "last paragraph," and the words ", as well as to".
Art. 345. In section 270 of the Act, the following amendments are made:
1° in paragraph 4, paragraph 1^er, the 2° is replaced by the following:
"2° holders of a certificate of higher secondary education who have passed a examination organized by or under a decree, by a representative professional organization, an insurance or reinsurance company, an insurance or reinsurance intermediary or a credit institution, and intended to verify the possession of such professional knowledge. The examination referred to in this provision shall be approved by the MSDS. FSMA may, by regulation, specify the rules to which examinations are to be conducted. The interested person must also justify a practical experience whose duration will be fixed by the King but may not exceed two years. For reinsurance intermediaries, the length of the practical experience is five years."
2° in paragraph 4, paragraph 3 is replaced by the following:
"Insurance and reinsurance companies, professional organizations, insurance or reinsurance intermediaries and credit institutions shall communicate to the MSDS the content and terms and conditions of the examination they hold in accordance with paragraph 1^erTwo. FSMA checks whether the reviews that are organized meet the requirements required under this section. It may, if necessary, withdraw its approval."
Paragraph 6 is replaced by the following:
§ 6. Insurance companies and, where applicable, insurance and reinsurance intermediaries shall meet the sufficient basic knowledge set out in paragraph 2 of the persons referred to in section 259, paragraph 2, and section 260, paragraph 2. The possession of this basic knowledge is verified by an examination to be approved by the MSDS in accordance with paragraph 4, paragraph 3. ";
4° in paragraph 7, the words "and basic training" are deleted.
Art. 346. In the same law, an article 270bis is inserted as follows:
"Art. 270bis. Insurance and reinsurance companies, professional organizations, insurance or reinsurance intermediaries and credit institutions referred to in section 270, § 4, paragraph 3, of which FSMA has approved the training program prior to the date of entry into force of this Article, as set by the King, are required to communicate to FSMA the content and modalities of the examination they hold in accordance with Article 270,^er2°, within six months of the date mentioned above. "
PART IV. - Abrogatory provisions
Art. 347. Are repealed:
- Article 3, § 3, Article 9, § 1^erParagraph 1^er, last sentence, article 19, § 1^erArticle 19bis, Article 19ter, Article 20, Article 21, § 1^erbis, sub-items 1^er and 2, Article 21octies, § 2, paragraph 3, Articles 28ter to 28decies, Article 41, Article 65, Article 76 and Article 77 of the Act of 9 July 1975 relating to the control of insurance companies;
- the Act of 27 March 1995 on the intermediation of insurance and reinsurance and the distribution of insurance;
- Chapters II, III and IV of Title I, title II, chapters I, III, IV and V of Title III, sections I, except section 97, II, III, IV and V of Chapter II of Title III and section VI, subsection II of Chapter II of Title III of the Law of 25 June 1992 on the Land Insurance Contract;
- the law of June 11, 1874 containing titles X and XI, Book I, of the Commercial Code. Insurance in general - some terrestrial insurance in particular;
- Article 86ter, § 1^er5° of the Financial Sector Supervision and Financial Services Act of 2 August 2002.
PART V. - Other provisions
Art. 348. § 1^er. The legal provisions not contrary to this Act, which refer to provisions of the Act of 9 July 1975 relating to the control of insurance companies, the Act of 25 June 1992 on the land insurance contract, the Act of 11 June 1874 containing titles X and XI, Book I, the Commercial Code and the Act of 27 March 1995 relating to the intermediation in insurance and reinsurance and to the distribution of insurance
§ 2. The regulatory provisions that have been made pursuant to the provisions of the Act of 9 July 1975 relating to the control of insurance companies, the Act of 25 June 1992 on the land insurance contract, the Act of 11 June 1874 containing titles X and XI, Book I, the Commercial Code and the Act of 27 March 1995 relating to the intermediation in insurance and reinsurance, and the distribution of insurances, which have been set aside in the
§ 3. Two years after this Act comes into force, FSMA assesses its application and operation. To this end, it collects the opinion of the Bank, the WCO and the Insurance Commission. ADMDS may, on the basis of this assessment, make recommendations to the Minister.
Art. 349. By order deliberately in the Council of Ministers, the King may, on the advice of the FSMA, take the necessary measures to ensure the transfer of the mandatory provisions resulting from international treaties or international acts taken under them in matters regulated by the provisions of this Act. Orders made under this article may amend, supplement, replace or repeal existing legal provisions.
The royal decrees referred to in this section are repealed in full law when they have not been confirmed by law within twenty-four months after publication to the Belgian Monitor.
Art. 350. Confirmed with effect on the date of their respective entry into force:
- the Royal Decree of 21 February 2014 on the terms and conditions of application to the insurance sector of articles 27 to 28 bis of the Act of 2 August 2002 on financial sector surveillance and financial services;
- the Royal Decree of February 21, 2014 amending the Act of March 27, 1995 on intermediation in insurance and reinsurance and the distribution of insurance.
Art. 351. Insurance intermediaries who, as of April 30, 2014, are registered in the Register of Insurance Intermediaries held by the CMO under Article 5, § 3, of the Act of March 27, 1995 on the intermediation of insurance and reinsurance and the distribution of insurances must, in order to maintain their registration, comply with Article 11, § 1^er, 1°, A, f), of the same law, as amended by the Royal Decree of 21 February 2014 amending the Act of 27 March 1995 on the intermediation of insurance and reinsurance and the distribution of insurance, by the date of 1^er May 2015.
PART VI. - Entry into force
Art. 352. This Act comes into force on the first day of the month following the expiration of a six-month period beginning on the day after its publication in the Belgian Monitor, except with respect to the provisions of which the effective date is fixed in accordance with section 353.
Derogation from paragraph 1^erSections 334 and 335 come into force on the tenth day following that of the publication of this Act to the Belgian Monitor, Article 350 comes into force on the day after the publication of this Act to the Belgian Monitor and Article 351 comes into force on 30 April 2014.
Art. 353. § 1^er. The King shall, within a period of twelve months beginning on the day of the publication of this Act to the Belgian Monitor, fix the effective date of Chapter 5 entitled "Dispositions specific to certain insurance contracts that guarantee the reimbursement of the capital of a credit", as set out in Part 4, Title IV, or, where applicable, the effective date of one or more of the said chapter.
§ 2. The King sets out the date of entry into force of Articles 344, 345 and 346.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 4 April 2014.
PHILIPPE
By the King:
Minister of Economy,
J. VANDE LANOTTE
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) House of Representatives:
(www.lachambre.be)
Documents: 53-3361 - 2013/2014
Full report: 19 and 20 March 2014.
Senate:
(www.senate.be)
Documents: 5-2767 - 2013/2014.