Insurance & Reinsurance

The Insurance Commission (CAA) is the official and exclusive regulatory authority in charge of the supervision of the insurance sector in Luxembourg.

The CAA supervises Luxembourg-incorporated insurance, reinsurance undertakings and professionals of the insurance sector, as well as activities carried out in Luxembourg by foreign entities under the principle of freedom to provide services or to operate through branches located in Luxembourg. This supervision is performed on an ongoing basis, as the regulatory authority must ensure that the insurance and reinsurance undertakings subject to the Luxembourg legislation continue to comply with the conditions under which they are authorised to carry out their activities.

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Luxembourg insurance and reinsurance undertakings are authorised by the Minister for Finance (the Minister), after due submission of an application filed with the CAA, which is in charge of reviewing it.

The following set out the rules governing the formation and authorisation of insurance undertakings:

• the law of 7 December 2015 on the insurance sector, as amended (the 2015 Law);
• the implementing Grand-Ducal Regulation of 14 December 1994 specifying the conditions for authorisation and practice of direct insurance undertakings, as amended (the 1994 Regulation);
• the implementing Grand-Ducal Regulation of 5 December 2007 establishing the terms and conditions of the supplementary supervision of insurance and reinsurance undertakings that are part of an insurance or reinsurance group (the Group Regulation); and
• the CAA regulation No. 15/03 of 7 December 2015 relating to insurance and reinsurance companies, as amended (the CAA Regulation).

The following set out the rules governing the formation and authorisation of reinsurance undertakings:

• the 2015 Law;
• the Group Regulation;
• the Grand-Ducal Regulation of 5 December 2007 specifying the conditions for the authorisation and practice of reinsurance undertakings, as amended (the 2007 Regulation); and
• the CAA Regulation.

To be authorised by the Minister, an insurance or a reinsurance undertaking must adopt one of the following legal forms:

• public limited liability company;
• partnership limited by shares;
• mutual insurance association;
• cooperative company;
• cooperative company organised as a public limited liability company;
• European company; or
• European cooperative society.

It is also necessary for all insurance and reinsurance undertakings authorised by the Minister to have their central administration established in Luxembourg.

Furthermore, the corporate object of an insurance undertaking must be limited to insurance activities and activities deriving directly therefrom, whereas the corporate object of a reinsurance undertaking must be limited to reinsurance activities and activities deriving therefrom (with the exception of any direct insurance activities). Hence, the possibility for insurance and reinsurance undertakings to carry out any other commercial activity is excluded. The 2015 Law further provides that insurance undertakings must choose to exercise either life insurance or non-life insurance activities, as these activities are, as a matter of principle, incompatible (see question 3).

Moreover, the direct and indirect shareholding structure of insurance and reinsurance undertakings must be transparent. The identity of all shareholders holding directly or indirectly a qualifying holding therein (ie, representing at least 10 per cent of the share capital or the voting rights of the entity) and the amount of these holdings must be disclosed to the CAA. The 2015 Law also states that these shareholders must provide evidence that they are able to ensure sound and prudent management of the undertaking.

In addition, an authorisation as an insurance or reinsurance undertaking will be granted by the Minister only if the applicant provides a business plan and holds the minimum guarantee fund mentioned in the 2015 Law.

Applicants wishing to be authorised as an insurance undertaking must ensure that they have an effective actuarial function exercised by persons who have knowledge of actuarial and financial mathematics, commensurate with the nature, scale and complexity of the risks inherent in their business. They must also demonstrate that once authorised, the undertaking will be effectively managed by at least one person who fulfils a series of legal conditions (such as their good repute, professional experience and knowledge, and an effective physical presence in Luxembourg) and holds a regulatory authorisation.

Finally, the Minister will consent to grant an authorisation as a reinsurance undertaking if the applicant demonstrates that it will be managed effectively by a natural person holding a regulatory authorisation or an authorised management company of reinsurance undertakings (whose representative holds the authorisation required by the law) linked to the entity by a services agreement. Hence, the daily management of reinsurance undertakings must be carried out by their own personnel, or by a management company of reinsurance undertakings with which they have entered into a services agreement.

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As mentioned in question 2, Luxembourg insurance and reinsurance undertakings must obtain an authorisation delivered by the Minister.

This authorisation granted to insurance undertakings is limited to one or several specific classes of insurance, which relate to different sorts of risks and belong to either the life insurance or the non-life insurance sector. As a matter of principle, an insurance undertaking cannot be authorised for both life insurance and non-life insurance sectors. However, the 2015 Law has introduced specific and restrictive exceptions to that principle, as it is now possible, under certain circumstances, to combine life and non-life activities (for the classes of direct insurance regarding accident and sickness).

Although the 2015 Law provides as a general principle that an authorisation is granted for an entire class of insurance, undertakings apply in practice for an authorisation relating to several risks only (not for the whole sector).

Any insurance or reinsurance undertaking authorised to carry out its activities by the Minister may establish branches in other member states of the European Economic Area (EEA member states) or operate in these countries in accordance with the principle of freedom to provide services.

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The person or each of the persons in charge of the day-to-day management of an insurance or reinsurance undertaking (authorised managers) must be first authorised by the Minister, after due submission of an application filed with the CAA, which is in charge of reviewing it.

In principle, the manager must be a natural person. The 2015 Law, however, allows that reinsurance undertakings be managed either by a natural person or by an authorised management company of reinsurance undertakings. In the latter case, the management company must be represented by a delegated manager of reinsurance undertakings, who is duly authorised as a manager of reinsurance undertakings.

The legal requirements to be authorised as a manager of an insurance undertaking or a reinsurance undertaking are identical.

Authorised managers must first demonstrate their good repute (which relates to both their reputation and professional standing). They must also have the necessary professional experience. Finally, authorised managers must effectively manage the insurance or reinsurance undertaking, and must be physically present in Luxembourg to allow such effective and permanent management.

These requirements will be assessed on the basis of documents submitted by the applicant, such as a curriculum vitae detailing his or her education and professional career, a copy of his or her diplomas, an excerpt of his or her criminal record or, if unavailable in a specific country, an affidavit sworn before a notary demonstrating the applicant’s good repute and certifying that he or she has not been involved in insolvency or similar proceedings.

Management companies of reinsurance undertakings are also regulated and must be incorporated under one of the forms available for Luxembourg commercial companies, or as an economic interest grouping or a European economic interest grouping. In addition, these management companies must, inter alia, comply with minimum capital requirements (share capital of €50,000 on the incorporation of the company and €125,000 five years thereafter); have their central administration, their accounting and their documents in Luxembourg; and conclude a civil liability insurance policy. Moreover, the members of the administration, management and supervisory bodies, and the shareholders of a management company of a reinsurance undertaking must demonstrate their good repute.

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From a corporate law point of view, Luxembourg insurance and reinsurance undertakings are not subject to any minimum share capital requirements, aside from those imposed by the law of 10 August 1915 on commercial companies, as amended, depending on the corporate form of the relevant entity.

Nevertheless, insurance and reinsurance undertakings must comply with certain obligations regarding own funds. Own funds are composed of basic own funds, which appear in the undertaking’s balance sheet, and ancillary own funds, which are not recorded in this balance sheet. Own funds are divided into three tiers pursuant to quality criteria.

Eligible basic own funds must cover the minimum capital requirement imposed on insurance and reinsurance undertakings whose threshold and calculation methods are defined by the CAA Regulation.

In addition, insurance and reinsurance undertakings must ensure that they hold eligible own funds that cover the solvency capital requirement. The solvency capital requirement must reflect a level of eligible own funds, which enables insurance and reinsurance undertakings to absorb significant losses, and that gives reasonable assurance to policyholders and beneficiaries that payments will be made as they fall due. The solvency capital requirement shall be calculated on the presumption that the undertaking will pursue its business as a going concern. It shall be calibrated to ensure that each insurer will be able to meet its obligations over the following 12 months with a probability of 99.5 per cent (confidence level). The 2015 Law provides for two alternative calculation methods: either a standard formula determined by the CAA Regulation, or a formula based on integral or partial internal models set up by the insurance or reinsurance undertaking and approved by the CAA.

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The 2015 Law determines the scope of the technical provisions and the categories of assets covering technical provisions. The value of the technical provisions corresponds to the current amount that insurance and reinsurance undertakings should pay if they were transferring forthwith their insurance and reinsurance obligations to another insurance or reinsurance undertaking.

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The CAA shall not require the prior approval or systematic notification of general and special policy conditions, scales of premiums, the technical bases used in particular for calculating scales of premiums and technical provisions, or forms and other printed documents that an undertaking intends to use in its dealings with policyholders.

Nevertheless, the general and special conditions of mandatory non-life insurance policies (eg, third-party motor liability insurance policies) offered by insurance undertakings authorised in Luxembourg must be communicated to the CAA before their use.

In addition, for life insurance and for the sole purpose of verifying compliance with national provisions concerning actuarial principles, the CAA may require systematic notification of the technical bases used for calculating scales of premiums and technical provisions. That requirement shall not constitute a prior condition for the authorisation of a life insurance undertaking.

Furthermore, the CAA requires the communication of a technical note for life and non-life insurance products that the insurance or reinsurance company intends to use in its dealings with policyholders.

Moreover, pursuant to Regulation (EU) No. 1286/2014 of the European Parliament and the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (the PRIIPs Regulation), a key information document (KID) must be issued as from 1 January 2018 by life insurance undertakings for each packaged retail insurance-based investment product destined for retail investors.

These rules do not concern non-life insurance products or products where the benefits under the insurance contract are payable on death or in respect of incapacity, injury, sickness or infirmity. They are restricted to products offering a maturity or surrender value that is wholly or partially exposed, directly or indirectly, to market fluctuations.

The KID is a short pre-contractual document of information, free of charge, which allows any retail investor to understand and compare the characteristics of the investment products that are proposed to them. The KID shall be written in a brief manner, not exceeding three pages under the A4 format to facilitate the comparability. The content and presentation of the KID are defined in the PRIIPs Regulation and in delegated regulations.

On 19 April 2018, the law of 17 April 2018 on key investor documents for packaged retail and insurance-based investment products, which supplements the PRIIPs Regulation, was published in Mémorial A and entered into force on 23 April 2018. The law of 17 April 2018 designates the CAA as the competent authority responsible for the supervision of the KIDs concerning insurance-related investment products. It also sets forth the sanctions (including fines) and administrative measures that can be imposed in the case of breaches by the entities subject to the PRIIPs Regulation.

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In the performance of its ongoing prudential supervision, the CAA examines the annual reports and accounts of undertakings, and also carries out on-the-spot checks on a regular basis. International groups are under the supervision of a European college of supervisors.

Insurance undertakings must provide the CAA with some documents on an annual basis, inter alia:

• an annual report;
• an annual statement of the assets used to cover technical provisions;
• annual financial statements, the management report and the minutes of the ordinary general meeting of shareholders approving the annual accounts and deciding on the allocation of the results;
• a statement of depositary agreements;
• a statement of various statistics;
• the data sheet;
• an actuary’s report;
• a special report of the auditor of the undertaking; and
• the governance and risk management report.

Reinsurance undertakings are required to provide the CAA on an annual basis with their annual reports, which include, inter alia, the following:

• the balance sheet of the undertaking;
• a profit and loss account, and a statistical annex on the gross amount of claims paid;
• an annex about the overhead costs;
• a table outlining the geographical origin of the premiums;
• a table determining the cap of the provision for fluctuations in the occurrence of insured events;
• a statement on the investment policy; and
• a governance report.

In addition, insurance undertakings must keep a permanent inventory of the assets covering technical provisions and transmit it on a quarterly basis to the CAA.

The CAA is empowered to perform, among other things, verifications on the Luxembourg territory with respect to the information that has been disclosed to it in relation to Luxembourg insurance and reinsurance undertakings. To that end, the CAA is also allowed to carry out remote supervision or on-site inspections at the premises of insurance and reinsurance undertakings, and can be provided with copies of the books, accounts, registers, and other deeds and documents. Such controls relate mainly to the management and internal structure of the relevant undertakings, and their compliance with the legal, regulatory and prudential requirements. For instance, they can purport to verify the existence of appropriate and effective internal control procedures and compliance with the anti-money laundering obligations that apply to insurance and reinsurance undertakings. Insurance or reinsurance undertakings are also subject to the supplementary supervision of the CAA where they are members of an insurance or reinsurance group or, under certain circumstances, part of a financial conglomerate. In some specific instances, insurance and reinsurance undertakings must, upon request from the CAA, provide it with all relevant information to enable it to exercise its supplementary supervision. Insurance and reinsurance undertakings must calculate the solvency capital requirement at least once a year and report the result of that calculation to the CAA.

In the event of any major development affecting significantly the relevance of the information disclosed to the CAA regarding their solvency and financial condition, insurance and reinsurance undertakings shall voluntarily disclose appropriate information on the nature and effects of that major development to the CAA.

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As a matter of principle, insurance and reinsurance undertakings must invest all their assets in accordance with the ‘prudent person’ principle in compliance with the rules set out by the CAA. As a consequence, they must invest into assets and instruments that represent risks that can be easily identified.

The 1994 Regulation defines some requirements that must be complied with in relation to the assets covering the technical provisions of insurance undertakings. In particular, such assets must take account of the types of operations performed by the relevant insurance undertaking to ensure the security, profitability and liquidity of the investments made by that entity. To that end, insurance undertakings must ensure that the investments they make are sufficiently dispersed and diversified, and that they comply with the specific rules provided for in the 1994 Regulation (eg, in relation to investments in shares, bonds and real estate properties). This Regulation provides for some requirements in relation to the valuation of the invested assets.

Moreover, Circular Letter 15/3 of 24 March 2015 of the CAA, relating to investment rules for life insurance products linked to investment funds, as amended, (the Circular Letter) contains specific rules on the investments that can be made by insurance undertakings further to the subscription by policyholders to contracts linked to investment funds or to mixed contracts. In such instances, the assets invested by the insurance undertaking further to the execution of the insurance contract can only consist of shares in external funds, shares of funds with no guarantee of future performance or liquid assets, or a combination thereof.

Where the life insurance contract concerns investments in external funds, an insurance undertaking should only acquire shares in undertakings for collective investment in transferable securities, alternative investment funds or funds of alternative investment funds, and real estate funds, within the more specific limits indicated in the Circular Letter.

If the life insurance contract involves investments by the insurance undertaking in internal funds with no guaranteed return or a dedicated fund, some specific rules concerning the assets in which these funds can invest must be complied with, depending on the category to which the policyholder belongs (which is determined on the basis of the amount of wealth in transferable securities and of the amounts invested in the insurance contract or contracts concluded with the insurance undertaking). Furthermore, investments in dedicated funds are only allowed for insurance contracts with a minimum premium of €125,000.

Reinsurance undertakings are subject to a series of investment rules regarding assets covering technical provisions that are contained in the 2007 Regulation. More specifically, these assets must be invested in a manner that takes account of the operations undertaken by the relevant reinsurance undertaking to ensure the sufficiency, liquidity, security, quality, profitability and matching of its investments. Furthermore, assets must be diversified and adequately spread to allow the reinsurance undertaking to meet changing economic circumstances and to avoid excessive reliance on any particular asset, issuer or group of undertakings and accumulations of risks in the portfolio as a whole. Moreover, investments in assets that are not admitted to trading on a regulated financial market must be kept to prudent levels, and investments in derivative instruments are only possible insofar as they contribute to a reduction of investment risks or facilitate efficient portfolio management by the reinsurance undertaking. The 2015 Law prohibits the CAA from retaining or introducing a system with gross reserving for the establishment of technical provisions, which requires the pledging of assets to cover unearned premiums and outstanding claims provisions where the reinsurer is an insurance or reinsurance undertaking authorised in accordance with Directive 2009/138/EC (Solvency II).

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Contemplated acquisitions and disposals by any person of shares of an insurance or reinsurance undertaking that constitute a qualifying participation (ie, representing at least 10 per cent of the share capital or the voting rights of the entity), or that result in crossing (upwards or downwards) the ownership thresholds of 20, 33.33 or 50 per cent, or the insurance or reinsurance undertaking becoming the subsidiary of the acquirer, must be notified by such person or persons to the CAA in advance and in writing. The notification must include all the relevant details regarding the information on the proposed acquisition or disposal of shares.

The CAA must render a decision within a maximum of 60 to 90 business days of the date of its acknowledgement of receipt of the notification, depending on whether the proposed acquirer is a resident of the European Union (EU) or the EEA, whether it is subject to EU prudential supervision and whether the CAA issues a supplementary request for information. If, during this assessment period, the CAA does not object in writing to the envisaged acquisition, the transaction is presumed to be authorised.

Moreover, the insurance or reinsurance undertaking must inform the CAA of such disposals and acquisitions as soon as it has knowledge thereof.

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There are no specific requirements or restrictions in the 2015 Law concerning the financing of the acquisition of insurance or reinsurance undertakings.

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The 2015 Law provides for specific requirements and restrictions on investors acquiring, directly or indirectly, alone or in concert, a qualifying holding (ie, representing at least 10 per cent of the share capital or the voting rights of the entity) in insurance or reinsurance undertakings, or having any other possibility to exercise a significant influence on the management of these entities. Similarly, the 2015 Law contains specific requirements to be complied with when the holding of shareholders of insurance or reinsurance undertakings exceeds or becomes lower than a series of defined ownership thresholds (see question 10).

In the case of a contemplated acquisition of a qualifying holding or a holding exceeding the specific thresholds indicated in the 2015 Law, the CAA will assess the potential influence of the proposed acquirer over the insurance or reinsurance undertaking to ensure the sound and prudent management of the entity. In particular, the CAA will assess the following criteria:

• the reputation and professional standing of the proposed acquirer;
• the reputation, professional standing and professional experience of any person who will direct the business of the insurance or reinsurance undertaking as a result of the proposed acquisition;
• the financial soundness of the proposed acquirer;
• the possibility for the undertaking to continue to comply with the applicable legal and regulatory requirements after the proposed acquisition; and
• the existence of reasonable grounds to suspect that the acquisition is connected to, or increases the risk of, money laundering or terrorist financing.

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The 2015 Law does not contain any specific requirements or restrictions for investments by foreign citizens, companies or governments in insurance or reinsurance undertakings, except for the requirements concerning the acquisition of a qualifying participation or the crossing of the ownership thresholds (see question 10).

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The 2015 Law, the 2007 Regulation and the Grand-Ducal Regulation of 17 November 2006 relating to financial conglomerates for which the CAA assumes the role of coordinator include the following:

• general provisions on financial supervision on a stand-alone basis of Luxembourg insurance and reinsurance undertakings;
• specific provisions on the supplementary supervision of insurance or reinsurance undertakings belonging to an insurance or reinsurance group; and
• specific rules on the supplementary supervision of insurance undertakings belonging to a financial conglomerate.

Each of the three supervisory regimes is independent from the two others.

Any insurance or reinsurance undertaking subject to the supplementary supervision of insurance and reinsurance groups must implement internal control procedures that are adequate and useful for its reporting obligations to the CAA. In that context, insurance and reinsurance undertakings must implement risk management procedures and suitable internal control mechanisms to identify, measure, monitor and verify appropriately intra-group transactions and risk concentration between them and affiliated companies, holding companies of these affiliates or companies linked to these holding companies, or natural persons having a holding in the latter companies or in the insurance or reinsurance undertaking.

The supplementary supervision of insurance undertakings in financial conglomerates in respect of which the CAA assumes the function of coordinator is independent from the supplementary supervision of insurance undertakings belonging to an insurance group or the supervision of these entities on an individual basis. The appointment of the CAA as the competent authority responsible for exercising supplementary supervision (ie, the coordinator) is based on the following criteria:

• the financial conglomerate is headed by a Luxembourg-regulated entity;
• the parent of two regulated entities based in the EEA is a Luxembourg-based mixed financial holding company; and
• the financial conglomerate is headed by more than one mixed financial holding company with a head office in different EEA member states and there is a regulated entity in each of these states, if the largest balance sheet total is based in Luxembourg if these entities are in the same financial sector or if one of those entities belonging to the most important financial sector of the group is based in Luxembourg.

All the entities of the financial sector belonging to the financial conglomerate, whether regulated or established in an EEA member state or a third country, are included in the scope of the supplementary supervision performed by the CAA. The supplementary supervision exercised by the CAA concerns the financial situation of the financial conglomerate and more particularly, the adequacy of stockholders’ equity, the risk concentration and the intra-group transactions, as well as the internal control systems and procedures of risk management set up at the level of the financial conglomerate. The CAA, when it assumes the function of controller of the group, identifies, after consulting the other supervisory authorities concerned as well as the group, the types of risks that insurance and reinsurance undertakings of a given group shall report in any circumstances. The very significant intra-group transactions must be reported as quickly as possible.

Moreover, mixed financial holding companies, third-country regulated entities and unregulated entities belonging to financial conglomerates whose coordinator is the CAA are not subject to any supervision on an individual basis by the CAA.

Where an insurance or reinsurance company governed by Luxembourg law and belonging to a financial conglomerate has its parent undertaking located outside an EEA member state (and therefore is subject to supervision of a third-country competent authority), the CAA must verify that an equivalent supervision as the one performed by the CAA by application of the 2015 Law has been implemented. Where an equivalent supervision does not exist, the CAA shall apply the provisions concerning the supplementary supervision to the regulated entity.

The rules concerning the supplementary supervision in financial conglomerates in respect of which the CAA assumes the function of coordinator are as follows:

• insurance and reinsurance undertakings must ensure that own funds, which must at all times be at least equivalent to the applicable capital adequacy requirements, are available at the level of the financial conglomerate;
• the entities at the head of the financial conglomerates must, at least once a year, notify the CAA of the results of the calculation of the own funds and the capital adequacy requirements for the financial conglomerate and all supporting data, any significant concentration of risks within the relevant financial conglomerate and any significant intra-group transactions involving regulated entities in the relevant financial conglomerate;
• the entities at the head of financial conglomerates must also regularly notify the CAA of the details of their legal structure, governance system and organisational structure, including information on all the regulated entities, unregulated subsidiaries and branches of significant importance; and
• the entities at the head of financial conglomerates must publish annually, at the level of the financial conglomerate, a description of their legal structure, either in its entirety or by reference to equivalent information.

Moreover, Luxembourg insurance undertakings belonging to a financial conglomerate whose coordinator is the CAA have to implement risk management and internal control procedures at the level of the financial conglomerate.

The risk-management procedures must comprise the following:

• the sound and prudent governance and management of the business in light of the risks incurred, including approvals and periodic reviews by appropriate governing bodies at the level of the financial conglomerate of strategies and policies for all risks incurred;
• adequate policies as regards capital requirements;
• appropriate procedures to guarantee the suitability of the risk supervision methods and the existence of steps for the coherence of the systems in the financial conglomerates to ensure that the risks are measured, monitored and controlled at the level of the financial conglomerate; and
• schemes allowing the creation and, as the case may be, the development of appropriate and regularly updated safeguard and crisis resolution plans and mechanisms (which are regularly updated).

The internal control procedures include appropriate systems that identify, measure and manage the important risks incurred and procedures that guarantee the capital requirements in relation to the risks incurred, and accounting and reporting procedures allowing the identification, measure, follow-up and control of intra-group transactions and risk concentrations.

Entities belonging to a financial conglomerate whose coordinator is the CAA, mixed insurance holding companies and Luxembourg entities in the insurance sector that belong to a financial conglomerate subject to a coordinator other than the CAA, must implement internal-control procedures allowing the provision of information necessary for the supplementary supervision, for example:

• in the case of changes regarding their managers;
• to verify information relating to an entity belonging to a financial conglomerate and having its head office in another EEA member state with the competent authorities of the other EEA member state;
• to describe their legal structure, governance system and organisational structure; and
• for Luxembourg insurance undertakings belonging to a financial conglomerate whose coordinator is not the CAA, to implement adequate risk management and internal control procedures, as well as sound administrative and accounting procedures, that are suitable to the financial conglomerate.

Luxembourg insurance undertakings belonging to a financial conglomerate whose coordinator is not the CAA must allow information (ie, the results of the calculations of stockholders’ equity, the capital adequacy requirements, any significant concentration of risks and any significant intra-group transaction involving regulated entities in the relevant conglomerate) to be at the disposal of the entity at the head of the financial conglomerate - or, where necessary, of another entity regulated by the financial conglomerate required by the coordinator to notify it of the results of the calculations - to allow the coordinator to estimate whether, at the level of the financial conglomerate, stockholders’ equity is equivalent at all times to at least the capital adequacy requirements.

The CAA, in its capacity as coordinator, exercises prudential supervision regarding compliance with the above requirements and it can regularly impose stress tests on the financial conglomerates for which it assumes the function of coordinator. The financial conglomerate must report, on a regular basis and at least annually, to the CAA, all significant intra-group transactions.

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There are no regulatory requirements in respect of reinsurance agreements. Reinsurance agreements are expressly excluded from the scope of the law of 27 July 1997 on the insurance contract, as amended, (the 1997 Law), and are consequently only subject to the general Luxembourg contract law principles (consent, causation, absence of fraud, performance in good faith, etc).

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There are no specific requirements or restrictions on the amount of ceded reinsurance and retention of risk by insurers.

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Reinsurance undertakings must establish technical provisions with respect to all of their reinsurance obligations regarding beneficiaries of insurance or reinsurance contracts.

Those technical provisions must be established with a credit institution that has its registered office or a branch in an EEA member state, or with a credit institution that has its registered office outside the EEA but has a branch or an agency in one of the EEA member states.

There is no such requirement concerning the localisation of technical provisions for the amounts recoverable from reinsurance contracts against undertakings authorised in accordance with Solvency II, or having their head office in a third country whose solvency regime is deemed to be equivalent.

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There are no regulatory requirements for cedents to obtain credit for reinsurance on their financial statements under Luxembourg law.

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Book III of the Luxembourg Commercial Code, which relates to bankruptcy proceedings, the provisions of the law of 4 April 1886 concerning composition to prevent bankruptcy, as well as the Grand-Ducal Regulation of 24 May 1935 completing the legislation in respect of suspended payments and composition to prevent bankruptcy through the institution of controlled management, are not applicable to insurance undertakings. Conversely, reinsurance undertakings remain subject to the general bankruptcy rules contained in the Luxembourg Commercial Code.

The 2015 Law provides the following specific rules:

• the suspension of payment of an insurance undertaking may be requested in court by the CAA or by the company itself (with prior notification to the CAA) when the credit of the insurance undertakings is impaired or when it finds itself in a non-liquid situation. The judgment granting the suspension of payment will appoint one or more supervisory auditors in charge of controlling the management of the insurance undertaking;
• the judicial dissolution and winding-up of an insurance undertaking may only be requested in court by the CAA or the public prosecutor when a suspension of payment measure previously ordered does not permit the rectification of the situation, or when the financial situation of the undertaking is impaired in such a way that the undertaking is no longer able to meet its commitments. The court deciding on the judicial winding-up will appoint a judge-commissioner as well as one or more liquidators. The court may decide to apply certain provisions governing bankruptcy. Moreover, the insurance undertaking put into judicial winding-up automatically loses its authorisation;
• the CAA has the power to take all the necessary measures to safeguard the interests of policyholders under insurance contracts and the obligations arising out of reinsurance contracts;
• the authorisation granted to a reinsurance undertaking that is unable to take the measures provided for in the restoration plan or in the short-term financing scheme in due time may be withdrawn by the Minister. In this event, the CAA will appoint one or more liquidators in charge of liquidating the reinsurance contracts and the assets representing the technical provisions; and
• non-life insurance contracts are automatically terminated by effect of law 30 days after the publication of the winding-up decision, and insurance claims resulting from events covered by these insurance contracts, which occurred during this 30-day period, will be included in the claims existing at the date of the winding-up decision.

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The 2015 Law defines the priority of claims against an insurance undertaking in insolvency proceedings.

The 2015 Law provides that the assets covering the technical provisions constitute a separate estate over which the insurance creditors (ie, the policyholders, the insured or the beneficiaries of an insurance policy entered into with the insurance undertaking) benefit from a legal privilege. Such legal privilege will rank before any other legal privileges to the extent that the assets covering the technical provisions have been recorded in a separate inventory, which is communicated to the CAA on a quarterly basis, or that a registration of mortgage has been taken over the immovable assets covering the technical provisions. The law of 10 August 2018 (the 2018 Law), which implements Directive (EU) 2016/97 on insurance distribution (IDD), inserted new provisions in the 2015 Law regarding the manner in which the legal privilege of the insurance creditors can be exercised. Accordingly, the 2015 Law requires that non-life insurance assets of non-life insurance undertakings are segregated in three different pools in the permanent inventory of insurance undertakings: namely (i) the assets employed for insurance claims resulting from accepted reinsurance, (ii) the assets employed for insurance claims resulting from contracts that are subject to reinsurance with one or several insurance or reinsurance captives, and (iii) all other assets of the permanent inventory that are employed for all other insurance claims. The 2015 Law does not contain any similar rules for the segregation of assets of life insurance companies since unit-linked insurance policies and other types of life insurance policies already contain contractual provisions that create a segregation between the life insurance assets; it was therefore not necessary to legislate on this topic.

Furthermore, the 2015 Law, as amended by the 2018 Law, creates a ranking of non-life insurance claims. The creditors whose claims correspond to one of the three pools of assets mentioned in the preceding paragraph have a first-ranking privilege limited to the proceeds resulting from the sales of the assets available in the corresponding pool. Should the assets available in a pool be insufficient to satisfy all the corresponding claims further to the exercise of the privilege, the amount of these claims will be reduced proportionately. The unsatisfied portion of these claims will benefit from a first-ranking privilege over the assets not included in one of the three pools, together will all other creditors whose claims are not linked to one of these three pools. Moreover, to the extent that all the claims in the first two pools have been satisfied in full, the creditors belonging to the third pool have a second-ranking privilege over the undistributed assets of the second pool after the exercise of the first-ranking privilege by the creditors of the second pool.

Similar rules exist in relation to life insurance policies. Accordingly, a first-ranking privilege is created in favour of insurance claims over the proceeds resulting from the sale of the assets belonging to one of the following two pools: (i) for insurance claims where the investment risk is borne by the policyholder: the units held by the insurance creditor in the underlying asset or assets on the date of opening of the winding-up proceedings; and (ii) for insurance claims corresponding to a savings operation of a life insurance contract or a capitalisation contract and other insurance claims: the corresponding technical provisions calculated at the date of the opening of the winding-up proceedings and the technical provisions for risks as created in the books of the insurer. Should the assets available in a pool be insufficient to satisfy all the corresponding claims further to the exercise of the privilege, the amount of these claims will be reduced proportionately. The unsatisfied portion of these claims will benefit from a first-ranking privilege over the assets not included in one of the two pools, together with all other creditors whose claims are not linked to one of these two pools.

The claims covered by the legal privilege will rank before any claims, but after a series of specific claims, to which Luxembourg law attributes a prevailing legal privilege. Such specific claims will then rank first and are as follows:

• claims for legal costs;
• claims for salaries, remunerations and indemnities that result from an employment contract for the past six months of work, and claims for indemnities owed further to the termination of the employment contract or apprenticeship contract, up to an amount not higher than six times the mandatory social minimum salary;
• claims mentioned in the preceding item, to the extent that they are higher than six times the social minimum salary;
• claims arising from an accident and for the benefit of third parties in that accident, or their right holders, which are owed by the insurer pursuant to the insurance contract; and
• other specific claims secured by a legal privilege in favour of the State Treasury, the municipalities, the social security bodies and the professional chambers.

In the event of an insurance or a reinsurance undertaking being wound up, commitments arising out of contracts underwritten through a branch or under the free provision of services shall be performed in the same way as those arising out of contracts directly concluded in Luxembourg by that insurance or reinsurance undertaking.

Unless otherwise specified in the 2015 Law, the distribution of assets of an insurance undertaking among its creditors will be carried out in compliance with the general rules on insolvency. Nevertheless, any financial collateral arrangement or netting agreement duly formed pursuant to the law of 5 August 2005 on financial collateral arrangements, as amended, are immunised against, inter alia, the Luxembourg law provisions on bankruptcy, and are enforceable against the bankruptcy trustee and third parties.

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The rules concerning insurance distribution were amended by the 2018 Law, which implemented the IDD into Luxembourg law and amended the 2015 Law accordingly.

Pursuant to the new provisions, an intermediary for the purpose of the 2015 Law can only be an insurance intermediary, a reinsurance intermediary or any ancillary insurance intermediary (each of these categories being legally defined in this law).

Luxembourg insurance and reinsurance intermediaries (ie, any natural or legal person, other than an insurance or reinsurance undertaking or an ancillary insurance intermediary, that, for remuneration, takes up or pursues insurance distribution activities) must be authorised by the Minister in accordance with the 2015 Law, after due submission of an application to the CAA, which is in charge of reviewing the file. Once authorised, Luxembourg intermediaries are registered in the special register of intermediaries held with the CAA, which can be consulted electronically.

The authorisation may only be granted to a natural person acting as an insurance and reinsurance broker, manager of a brokerage company, sub-broker or agent, and to legal persons acting as an insurance agency or insurance or reinsurance brokerage company. The authorisations are mutually exclusive and the granting of a new authorisation automatically brings the existing authorisation to an end.

Moreover, to obtain the authorisation, the direct and indirect shareholding structure of insurance intermediaries in the form of legal persons must be transparent. The identity of all shareholders holding directly or indirectly a qualifying holding therein and the amount of such holdings must be disclosed to the CAA. The 2015 Law also states that these shareholders must also provide evidence that they are able to ensure sound and prudent management of the intermediary.

Insurance or reinsurance brokerage companies must be managed by a manager authorised by the Minister, have a paid-up capital of at least €50,000 at incorporation (€125,000 after five years) and have their central administration in Luxembourg. Insurance and reinsurance brokers must fulfil conditions of sound professional reputation and relevant expert knowledge, have a net worth of at least €25,000 (€50,000 after five years), be covered by a professional civil liability insurance, effectively exercise their activity and have their principal establishment in Luxembourg.

Ancillary insurance intermediaries (ie, any natural or legal person, other than a credit institution or an investment firm, that takes up or pursues insurance distribution activities on an ancillary basis, such as travel agents and car rental companies) do not need to be authorised by the Minister but must be registered in the register of intermediaries. When the ancillary insurance intermediary is a legal person, only this entity and the natural person who is designated as being responsible for the distribution need to appear on the register (to the exclusion of all other employees of the ancillary insurance intermediary). The registration of ancillary insurance intermediaries is subject to conditions defined in the 2015 Law (eg, it must work on behalf of an insurance undertaking authorised to carry out insurance activities in Luxembourg or be covered by an insurance policy taken up with an insurance undertaking authorised to provide liability insurance Luxembourg).

Finally, insurance and reinsurance undertakings must register in the register of intermediaries the natural persons within their management who are responsible for insurance or reinsurance distribution. As of 1 January 2020, the persons who work in insurance undertakings and take part directly in insurance distribution will have to be authorised as insurance agents by the Minister and will be registered in the register of intermediaries.

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As a matter of principle, and unless otherwise provided by the parties, a contract can only be binding on, and be of benefit to, the parties thereto. Nevertheless, the 1997 Law expressly provides that in the context of liability insurance, the injured third party has a direct action against the insurer, and the creditors of the insured will have no right on the indemnity paid by the insurer to the third party.

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Pursuant to the 1997 Law, the insured must inform the insurer as soon as possible, and in any case within the period specified in the insurance contract. Moreover, the insured must provide the insurer with all the relevant information and respond to any questions raised by the insurer, to determine the circumstances and extent of the claim. However, the insurance undertaking cannot make use of the deadline for notifying the claim not having been met, if the notification is made within a reasonable time.

If the insured fails to comply with these obligations, and the insurance undertaking suffers a loss as a result of this breach, the insurer has the right to reduce the indemnity up to the amount of the loss suffered by it. The insurance undertaking may, however, deny coverage without demonstrating loss where the insured fraudulently failed to comply with these obligations.

The parties to an insurance contract regarding the cover of large risks (as defined in the 2015 Law, except baggage and moving insurance) may expressly deviate from the above-mentioned provisions.

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Under Luxembourg law, it is not possible for an insured person to initiate proceedings in respect of both contractual and extra-contractual liabilities of the insurer. Therefore, the insurer could only see its extra-contractual liability questioned if no contractual remedies are available for the insured person.

Even though the rule prohibiting the combination of contractual and extra-contractual liabilities is not considered as a public policy rule, the case law regarding this matter is well established.

In addition, an insurer can be held liable in tort for wrongful denial of a claim if this contractual breach has caused damage to the third party.

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In the case of indemnity insurance, the insurer is obliged to defend a claim as soon as the insurer’s coverage becomes due, to the extent that the insured calls for such coverage.

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The insurer’s payment obligation is triggered when the insured event is realised and provided that it occurred during the coverage period foreseen in the insurance contract. The 1997 Law provides that the insurer will not cover losses or damage caused intentionally or fraudulently.

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The 1997 Law provides that as soon as the life insurance contract is effective, the life insurer cannot contest the coverage on the basis of an unintentional misrepresentation of the insured in the application.

The insurance contract can, however, include a specific provision concerning the postponement of the incontestability period for a period not exceeding one year.

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Punitive damages are not valid under Luxembourg law. As a consequence, they cannot be enforced by Luxembourg courts and cannot be insured in an insurance contract governed by Luxembourg law.

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This issue is not regulated by the 1997 Law. Unless otherwise agreed between the parties to the relevant insurance contract, the excess insurer will indemnify only the insured losses exceeding the insured amount of the primary insurance contract.

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Luxembourg law does not operate any distinction between self-insured retentions and deductibles.

In practice, the insurer will be required to pay only the amount determined in accordance with the insurance contract after due deduction of any sum that is borne by the insurer as deductible.

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There is no specific provision in that respect in the 1997 Law. However, the law of 16 April 2003 regarding mandatory third-party motor liability insurance, as amended, provides that if there are several injured third parties and the total due indemnification exceeds the insured amount, the rights of the injured third parties against the insurer are reduced proportionally.

However, if the insurer ignores the existence of other claims and pays in good faith to an injured third party an amount exceeding his or her pro rata share, the other injured third parties will only be entitled to the balance of the insured amount.

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If a particular interest is insured against the same risk with several insurers, the insured may, in the event of a loss, seek indemnification from each insurer within the limits of the obligations of each of them, and up to the amount of the indemnity to which he or she is entitled.

Except in the case of fraud, none of the issuers may deny coverage by referring to the existence of other contracts covering the same risk.

The 1997 Law determines the method of apportionment among the insurers in relation to insurance of compensatory character. Nevertheless, it is possible for the insurers to contractually provide for a different method of apportionment.

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Luxembourg liability law does not recognise the concepts of ‘disgorgement’ or ‘restitution’ claims. In addition, damages that are awarded by the courts by application of Luxembourg law can only be of a compensatory nature. Punitive damages are therefore excluded (see question 28). In addition, the 1997 Law provides that no insurer can be forced to indemnify any damages resulting from the insured’s gross negligence or wilful misconduct. Moreover, criminal fines and settlements cannot be covered by an insurance contract.

Aside from these rules, the risks covered in an insurance contract are, as a matter of principle, left to the contractual freedom of the parties. Accordingly, insurance contracts would generally exclude any fault committed to realise a gain to the extent that it is not already caught under one of the exclusions set out in the preceding paragraph. It is usually considered that indemnifying the insured in this instance would be tantamount to ‘unjust enrichment’.

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This situation is commonly referred to as a ‘serial accident’.

The courts held that when a damage has been caused by several events, the guardian of a thing having caused this damage must be considered as having caused the entire damage. The solution adopted in France could therefore be applied in Luxembourg because Luxembourg civil law derives from the French and Belgian legal systems. Under French law, a set of harmful facts having the same technical cause must be regarded as a single event, regardless of the time and place of each claim. Insurance undertakings can include a provision for the globalisation of claims in their insurance policies to be able to apply deductibles and covering ceilings uniformly to the entire serial accident.

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If the insurer discovers the existence of unintentional misstatements regarding the description of the factual elements for the determination of the risks, which were made on the formation of the contract by the insured, the insurance contract shall be terminated only if the insured rejects the insurer’s proposal to modify the terms of the insurance policy; the insured has not expressed its approval to modify the policy within a set period of one month; or the insurer proves that it would never have insured this risk if it had been aware of all relevant elements.

If the insured makes wilful misstatements that mislead the insurer on the risk assessment elements on the formation of the insurance contract, the insurance policy is not terminated but will be declared null and void by the competent court.

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To the best of the authors’ knowledge, there are no published judicial precedents in Luxembourg. This confirms that litigation between insurers and reinsurers is rare. Disputes are usually settled out of court or through arbitration proceedings. Conciliation mechanisms might also be provided for in the reinsurance contract.

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The authors are not in an adequate position to identify a trend in this type of dispute (see question 36).

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There are no specific rules governing reinsurance arbitration awards in Luxembourg. According to the general principles set forth in the New Code of Civil Procedure (NCPC), the arbitration award must include the reasoning for the decision. However, the parties may agree to exempt the tribunal from the obligation to specify it in the decision.

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Arbitration awards are only binding on the parties to the arbitration agreement. Therefore, arbitrators cannot assume jurisdiction over persons who are not themselves parties to such agreements.

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Even though some articles of the NCPC refer to an appeal against an arbitral award, these references are inaccurate, because the possibility of appeal was abrogated by a regulation of 8 December 1981 amending and supplementing certain provisions of the single heading entitled ‘Arbitration’ of Part 2, Book III of the Code of Civil Procedure (being replaced by the NCPC).

A distinction must be drawn between Luxembourg and foreign arbitration awards.

The only possibility of challenging a Luxembourg arbitration award is through proceedings for annulment by way of opposition to the enforcement order delivered by the president of the district court. Proceedings to have the arbitration award declared null and void must be filed with the district court, and be based on one of the terms of article 1244 of the NCPC. This article lays down an exhaustive list of 12 causes for annulment:

• the arbitral award is contrary to the public interest;
• the dispute cannot be settled by way of arbitration;
• there was no valid arbitration agreement between the parties;
• the tribunal has exceeded its power or jurisdiction;
• the tribunal has omitted to decide on one or more issues that are indivisibly linked to the settled issues;
• the tribunal was not properly constituted;
• the rights of the defence have been violated;
• the tribunal has not included the reasoning for the decision, unless the parties have agreed to exempt the tribunal from this obligation;
• the arbitral award contains conflicting provisions;
• the arbitral award was obtained by fraud;
• the award was based on evidence that has been declared false by virtue of an irrevocable court decision or on the basis of evidence that has been recognised to be false; or
• it is discovered that one party has concealed evidence that would have been a decisive factor for the award.

As a matter of principle, an arbitration award cannot be modified. However, if an arbitral tribunal has omitted to decide on one or several aspects of a dispute that can be dissociated from those on which the arbitration award was rendered, it can complete its decision if the parties make such a request, even if the deadline to render a decision has expired. If a party disputes the assertion that the items can be dissociated, the district court will issue a decision on the independent character of these items. Should the dissociation be accepted by the district court, the matter will be referred again to the arbitral tribunal, which will then complete its decision.

In the case of a foreign arbitration award, the enforcement order is delivered by the president of the district court on an ex parte basis and it is possible to challenge the enforcement order before the Court of Appeal. The effect of these proceedings is not to annul the foreign arbitration award, but to prevent its enforcement in Luxembourg. Articles 1251 and 1244 of the NCPC set forth the grounds for annulment or non-recognition of the enforcement order (eg, the arbitral sentence can still be challenged before an arbitral tribunal and the tribunal has not ordered the provisional enforcement). Luxembourg has signed the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards, and has ratified it by a law of 20 May 1983. The recognition and enforcement of an arbitral award rendered in a jurisdiction that is a party to the New York Convention could be refused on the grounds of article V of this convention.

From the above, it can be inferred that Luxembourg gives full deference to arbitral awards.

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Luxembourg law does not provide for such an obligation. However, the parties to the reinsurance contract may agree that the reinsurer will have to follow the cedent’s fortunes, provided that it is not contrary to the activity programme submitted by the reinsurer to the CAA. The scope of the obligation can be freely determined by the parties.

Defences available to the reinsurer are those generally available to all contractors. The parties must always act in good faith and must not abuse the rights granted under the contract or wilfully harm their contractor’s interests.

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According to the general principle laid down in article 1134(3) of the Luxembourg Civil Code, the parties to a contract must perform their contractual obligations in good faith. This principle also applies to reinsurance contracts. However, there are no specifications in relation to the duty to act in good faith in reinsurance agreements.

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No, Luxembourg law does not make a distinction between facultative reinsurance and treaty reinsurance.

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There is no such direct action. Luxembourg law does not give the right to the policyholder or the non-signatory to a reinsurance agreement to sue the reinsurer directly for coverage. This rule derives from article 1165 of the Luxembourg Civil Code, which provides that a contract can only be binding on and be of benefit to the parties. By exception, the parties may agree to grant certain rights to third parties.

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There is no obligation under Luxembourg law for the reinsurer to pay a policyholder’s claim in the event of insolvency of the insurer.

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The type of notice and information is usually defined in the reinsurance contract, as this issue is not governed by Luxembourg law. Pursuant to the general principles applicable to the contracts, the parties must always act in good faith and have a duty to bring to the attention of their contractor all information that might be relevant for the performance of the contract. If the contractor fails to comply with this obligation, he or she might face a liability claim for breach of contract.

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This matter is not specifically governed by Luxembourg law.

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Luxembourg law does not provide any specific rule regarding review. This is usually governed by the terms of the reinsurance contracts.

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The obligation of the reinsurer to reimburse the cedent is defined in the contract, as there are no mandatory rules under Luxembourg law.

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The obligation of the reinsurer to reimburse a cedent for ECOs is not governed by any specific laws or regulations. Hence, this issue is left to the contractual freedom of the parties or the general principles of tort law.

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