Conditions which an insurance or reinsurance intermediary, must observe to carry on the insurance mediation activity in Portugal, within the scope of the European Parliament and of the Council Directive 2002/92/CE, of 9th December, regarding insurance mediation, and imposed by the Portuguese legislation
A. General obligations
The insurance intermediary has the following general obligations:
a) sign contracts in the name of the insurance undertaking only when the latter has conferred the necessary written powers;
b) not assume coverage of risks in his own name;
c) comply with the legal and regulatory requirements applying to the insurance activity and to the activity of insurance mediation and not intervene in contracts that stand in breach of these requirements;
d) assist correctly and efficiently the insurance contracts in which intervenes;
e) pursue best efforts in order to prevent inexact or incomplete declarations by the policyholder and situations which stand in breach or constitute cases of fraud against the law or which indicate situations of money laundering;
f) keep professional confidentiality in relation to third parties concerning facts that he became aware of as a result of exercise of his activity;
g) exhibit the registration certificate as intermediary insurance whenever any interested party so requests;
h) maintain a register of the insurance contracts in which he acts as an intermediary, together with the elements and information required for prevention of money laundering.
B. Obligations in relation to insurance undertakings and other insurance intermediaries
The insurance intermediary has the following obligations in relation to insurance undertakings and other intermediaries that intervene in the contract:
a) provide information on the risks to be covered and their specific aspects;
b) provide information on changes of risks that have already been covered that the insurance intermediary becomes aware of and which may influence the contract’s conditions;
c) provide accounts in accordance with legally and contractually established terms;
d) act with loyalty;
e) provide information on all facts that he becomes aware of and which may have an influence on the regularization of claims.
C. Obligations in relation to customers
The insurance intermediary has the following obligations in relation to the customer:
a) provide information, under the terms established by law and the respective regulations, of the rights and obligations arising from signature of the insurance contracts;
b) provide correct and detailed advice in accordance with the required by the respective category of intermediary, on the most convenient modality of the contract from the perspective of risk transfer and/or of the investment;
c) not practise any acts related to an insurance contract without first informing the respective policyholder and obtaining his agreement;
d) promptly transmit to the insurance undertaking all information that the policyholder requests within the framework of the insurance contract;
e) provide the policyholder with all clarifications related to the insurance contract, during its execution and during the period in which conflicts derived thereof remain pending;
f) not make use of any other profession or position that the insurance intermediary exercises in order to constrain the customer’s negotiating freedom;
g) not impose the obligation to sign an insurance contract with a specific insurance undertaking as a condition to the customer gains access to another good or service supplied.
D. Special Information obligations
1. Prior to the conclusion of any initial insurance contract, and, if necessary, upon amendment or renewal thereof, an insurance intermediary shall provide the customer with at least the following information:
a) his identity and address;
b) the register in which he has been included, the register date and the means for verifying that he has been registered;
c) whether he has a holding, direct or indirect, representing more than 10 % of the voting rights or of the capital in a given insurance undertaking;
d) whether a given insurance undertaking or parent undertaking of a given insurance undertaking has a holding, direct or indirect, representing more than 10 % of the voting rights or of the capital in the insurance intermediary;
e) whether or not he is authorized to receive premiums in order to be delivered to the insurance undertaking;
f) whether his intervention terminates upon signature of the insurance contract or whether his intervention involves the provision of assistance during the period of validity of the insurance contract;
g) where applicable, his capacity as an employee of an insurance undertaking;
h) the customer’s right to request information on the remuneration that the intermediary will receive for provision of the mediation service and, in conformity, supply him with such information, at his request;
i) the procedures allowing policyholders/customers and other interested parties to register complaints about insurance intermediaries and the out-of-court complaint and redress procedures.
2. In addition, an insurance intermediary shall inform the customer, concerning the contract that is provided, whether:
a) he gives advice based on the obligation to provide a fair analysis, in which case he is obliged to give that advice on the basis of an analysis of a sufficiently large number of insurance contracts available on the market, to enable him to make a recommendation, in accordance with professional criteria, regarding which insurance contract would be adequate to meet the customer's needs; or
b) he is under a contractual obligation to conduct exclusively a mediation business insurance activity with one or more insurance undertakings or other insurance intermediaries, informing as well the customer of the right to request information regarding the name or names of the insurance performance and insurance intermediaries along with he conducts business and, in accordance with, supply him with such information at the customer’s request; or
c) he is not under a contractual obligation to conduct insurance mediation business exclusively with one or more insurance undertakings or insurance intermediaries and does not give advice based on the obligation to provide a fair analysis, informing the customer as well of his right to request information about the names of the insurance undertakings and insurance intermediaries with which he conducts business and, in conformity, supply him with such information at the customer’s request;
d) if other insurance intermediaries intervene in the contract, identifying them.
3. Prior to the conclusion of any specific contract, the insurance intermediary shall at least specify, in particular on the basis of information provided by the customer, and the complexity of the insurance contract being proposed, at least specify the demands and the needs of that customer as well as the underlying reasons for any advice given to the customer on a given insurance product.
4. These information need not be given when the insurance intermediary mediates in the insurance of large risks.
5. All the information referred above and to be provided to the customer shall be communicated as follows:
a) on paper or through any other durable support available and accessible to the customer;
Durable media shall specifically include, computer diskettes, CD-ROMs, DVDs and the hard disk of the customer’s computer in which the e-mails are stored, but does not include Internet sites, except if these enable the customer to store information that is addressed personally to him, in such a manner that it may be subsequently consulted during a period suitable for the purpose of such information and which enables exact reproduction of the stored information.
However, the information may be provided orally where the customer requests it, or where immediate cover is necessary. In those cases, the information shall be provided to the customer in paper or any other durable medium, immediately after the conclusion of the insurance contract.
b) in a clear and accurate manner, comprehensible to the customer;
c) in an official language of the Member State of the commitment or in any other language agreed by the parties.
6. In the case of telephone selling or any other means of communication at a distance, the information referred to in the previous number shall comply with the legal regime applicable to the distance marketing of consumer financial services. Moreover, information shall be provided to the customer in paper or any other durable medium immediately after the conclusion of the insurance contract.
E. Obligations in relation to the Autoridade de Supervisão de Seguros e Fundos de Pensões
The insurance intermediary has the following obligations in relation to the Autoridade de Supervisão de Seguros e Fundos de Pensões:
a) provide, within the established deadlines, all clarifications that are necessary for pursuit of its supervisory functions;
b) inform the ASF in relation to all changes to information previously provided in compliance with legal or regulatory requirements, within a 30-day deadline counted from the date of verification of these changes.