This month we analyzed the ASF official position according to which the EU insurance companies operating in Portugal under the freedom to provide services must appoint a Portuguese based Ombudsman.
The Decree-law 2/2009 of 5 January added the article 131-E to the Decree-law 94-B/98 of 17 April, introducing the Insurance Ombudsman in the Portuguese legal framework. The applicable legal regime has been swiftly accompanied by the Regulatory Notice 10/2009-R of 25 June, on market conduct, subsequently amended by Regulatory Notice 2/2013-R of 10 January.
Article 131-E of the Decree-Law 94-B/98 has not defined its specific scope of application with respect to the entities to which such framework is applicable; therefore, the scope of application should be determined through the general rules of the said Decree-Law. On the contrary, the article 2 of the Regulatory Notice 10/2009-R expressly establishes that its scope is applicable to all insurance companies operating in the Portuguese territory and duly licensed. On these grounds and basing its argument on the need to guarantee agile and easy communications between the Ombudsman, the insurance company and the claiming party, ASF has published an official position according to which the EU insurance companies operating in Portugal under the freedom to provide services must appoint a Portuguese based Ombudsman.
Notwithstanding the fact that this position was included in the ASF 2015 market conduct regulatory and supervisory report, as well as the lack of support in the letter of the law and the obvious inconveniencies the position might entail to the pertaining companies, Law 147/2015 of 9 September, that has superseded and replaced the Decree-law 94-B/98, establishing the new insurance and reinsurance activity access and exercise legal regime, has not clarified this matter, reproducing, with minor amendments, the letter of the article 131-E of the repealed Decree-law 94-B/98 (amended and restated version).
The Law 147/2015 is indeed applicable to the EU insurance companies operating in Portugal under the freedom to provide services, as provided under its article 2. Moreover, and as the ASF argued, the Regulatory Notice 10/2009-R application to said companies is absolutely clear. Therefore, there are some rules that provide the grounds for the supervisory authority position. Nevertheless, the obligation to appoint a Portuguese based Ombudsman compliance with EU principles and rules raises several doubts, namely related to the fact that this obligation constitutes an obstacle raised to the access to the Portuguese insurance market by EU insurance companies by adding a demand pertaining harmonized areas (as insurance supervision and insurance consumers protection), that does not exist in their respective Sending States. Facing the unclear answer to be given on this subject, the principle of subsidiarity and the tangible benefits resulting from the agility and easiness gains and consequential greater protection granted to the claimant should ensure the rule compliance with the EU legal framework.
Not impairing the above mentioned, the mere existence of the obligation raises serious doubts. There is no rule in the Regulatory Notice 10/2009-R that expressly demands the appointment of a Portuguese based Ombudsman and, in fact, the referred regulatory rule allows the claim presentation through any means capable of producing a recorded or written record and the Ombudsman answer to be delivered on paper or any other durable mean that can be accessed by the claimant. It also ensures that the claimant shall have no costs arising from the claim proceedings and establishes suitable time limits, in order to ensure the parties the necessary time for the claim to be received, analysed and answered, all of this adding to the irrelevance of the territory were the Ombudsman is based.
The Belzuz Abogados S.L.P. Insurance Department remains available to provide the necessary support to the market players on the Ombudsman applicable rules compliance, performing the due contacts with the supervisory authority in order to prevent or solve any situation emerging from the applicable legal framework.
Insurance Law department | Portugal
Belzuz Advogados SLP
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