On 2 June 2023, the Swiss Federal Council adopted the amendments to the Insurance Supervisory Ordinance and enacted the revised Insurance Supervisory Act and the revised Insurance Supervisory Ordinance as of 1 January 2024.
On 18 March 2022, the Swiss Federal Assembly passed the partial revision of the Insurance Supervisory Act (nISA). Subsequently, the consultation procedure on the amendment of the implementing provisions in the Insurance Supervisory Ordinance (ISO) was launched. The consultation procedure lasted from 17 May 2022 to 7 September 2022. On 2 June 2023, the Swiss Federal Council adopted the amendments to the Insurance Supervisory Ordinance (nISO) and simultaneously enacted the nISA and the nISO as of 1 January 2024. The revised insurance supervisory law anchors the customer protection-based regulatory and supervisory concept, provides for far-reaching changes to the insurance intermediation regulation, creates a new reorganization regime, and provides clarifications concerning solvency and tied assets.
Most Important Changes to the nISO Compared to the Consultation Draft of the ISO
The Swiss Federal Council has largely made technical and linguistic changes to the consultation draft on the amendment of the ISO. However, the following changes seem worth mentioning:
- Independence of members of governing bodies (cf. article 14a(2) nISO): The requirement that only a minority of the persons entrusted with the overall management, supervision and control are allowed to simultaneously act in other bodies or important functions of the insurance company has been removed. This makes sense in view of the prohibition of dual functions of members of the board of directors and the executive board, which already applies at present.
- Definition of conflict of interest (article 14b nISO): The definition of a conflict of interest was adapted to the understanding of the term in the Financial Services Act, but without leading to material changes compared to the consultation draft. A conflict of interest exists in particular if the insurance company can achieve a financial advantage for itself or avoid a financial loss at the expense of certain policyholders in breach of good faith. Furthermore, a conflict of interest exists if the insurance company has an interest in the result of the insurance service that is contrary to that of the policyholder.
- Risk-absorbing capital instruments (article 37 nISO; article 198d nISO): The provisions on the recognition and consideration of risk-absorbing capital instruments have been significantly expanded. Clarifications were made as to the aspects which the contractual relationship between the insurance company and the bond or loan creditor must define. Compared to the consultation draft, it is now stated that the payment of the capital claim and due debt interest of risk-absorbing capital instruments in Tier 1 must also be deferred if the SST ratio falls below 100% and if there is a risk of insolvency. Risk-absorbing capital instruments in Tier 1 must also be taken into account as debt capital when determining the threat of over-indebtedness. Furthermore, the creditors must contractually undertake to recognize the Swiss Financial Market Supervisory Authority’s (FINMA) determination of the occurrence of an event triggering the relevant trigger as well as possible measures ordered by FINMA in the event of a risk of insolvency. Further clarifications concern the anchoring of the principle that no mechanisms shall exist that significantly impair the risk-absorbing effects of the risk-absorbing capital market instruments (eg. issuing guarantees). The same clarifications are stipulated concerning the regulation of risk-absorbing capital instruments of insurance groups.
- Technical provisions (article 62 nISO): The consultation envisaged to delete the possibility of a planned reinforcement of technical provisions in the area of life insurance. However, the nISO provides for such a reinforcement option again, whereby an adjustment plan can only be approved for a maximum period of five years (previously ten years) and the technical provisions must contain a significant safety margin.
- Concept of insurance intermediation (article 182a nISO): The definition of insurance intermediaries has been significantly revised compared to the consultation draft. Ultimately, the aim is to cover all actions that involve direct contact with customers, whether present or absent. Thus, the nAVO states that an insurance intermediary is someone who advises the policyholder with regard to the conclusion of an insurance contract or who proposes insurance contracts. The criterion of carrying out essential preparatory work for offering or concluding insurance contracts has been deleted. The new wording seems particularly far-reaching, according to which anyone who has an economic interest in offering or concluding an insurance contract via a website or another electronic medium and (a) who provides information on the basis of individualized criteria about one or more insurance contracts that a policyholder can choose via this website or this other electronic medium, or (b) who compiles a ranking list of insurance products shall also be deemed to be an insurance intermediary. The definition is therefore likely to have significant implications for embedded insurance solutions. Persons who only provide data or information are not considered insurance intermediaries. However, it is questionable, especially against the background of the explanations in the explanatory report on the amendment of the Insurance Supervisory Ordinance, whether persons who collect data more or less comprehensively for the purpose of concluding an insurance contract are not considered insurance intermediaries.
- Place of intermediation activity and domicile requirement (article 186 nISO): The requirement that employees of non-tied insurance intermediaries must carry out their intermediary activities from a place in Switzerland was removed. In addition, FINMA will now be able to grant an exemption from the seat, domicile or establishment requirement to insurance intermediaries who exclusively broker reinsurance contracts in Switzerland.
- Reporting (article 190b nISO): The comprehensive reporting obligation of non-tied insurance intermediaries proposed in the consultation draft was reduced to the extent necessary for the supervision. The reporting obligation is to be structured according to the principle of proportionality.
- Transitional period for information on life insurance policies (article 216c(8) nISO): Insurance companies do not have to provide policyholders with information on non-qualified and qualified life insurance policies until 1 January 2025.
- Dispatch on the amendment of the Insurance Supervisory Act (ISA) dated 21 October 2020, BBI 2020 8967
- Text of final vote for the Federal Act on the Supervision of Insurance Companies (Insurance Supervisory Act, ISA), BBl 2022 704
- Preprint of the Ordinance on the Supervision of Private Insurance Companies (Insurance Supervisory Ordinance, ISO)
- Explanatory report on the amendments to the Insurance Supervisory Ordinance dated 2 June 2023
- Result report of the consultation procedure on the amendments to the Insurance Supervisory Ordinance of 2 June 2023
If you have any questions regarding the revised insurance supervisory law, please do not hesitate to contact MLL Legal’s Insurance Industry Group.
This article does not constitute legal advice. The article merely states the author’s current understanding of the legal issue under discussion, without regard to individual circumstances. Any liability for the content of this article is excluded. Furthermore, MLL Legal is under no obligation to inform the readers of this article about new case law, changes in practice or other changes.