PORTUGAL Law and Practice Contributed by: Leonor Futscher de Deus, Broseta Abogados, SLP
1. Basis of Insurance and Reinsurance Law 1.1 Sources of Insurance and Reinsurance Law In Portugal, the main sources of insurance and rein- surance law are the following. • The Insurance and Reinsurance Activity Law (the “Insurance Activity Law”), approved by Law No 147/2015, dated 9 September 2015, which trans- posed into the Portuguese legal order Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on taking up and pursuing the business of insurance and reinsur- ance (the “Solvency II Directive”). The Insurance Activity Law establishes the conditions for taking up and pursuing insurance and reinsurance busi- ness. • The Insurance Contract Law, approved by Decree- Law No 72/2008, dated 16 April 2008, which establishes the main rules applicable to insurance contracts. • The Insurance Distribution Law, approved by Law No 7/2019, dated 16 January 2019, which trans- posed into the Portuguese legal order Directive 2016/97/EU of the European Parliament and of the Council of 20 January 2016 on insurance distribu- tion. The Insurance Distribution Law establishes the conditions for taking up and pursuing insur- ance and reinsurance distribution. The above-mentioned diplomas are supplemented by other laws or decree-laws with a specific scope aiming to regulate certain types of insurance or distribution channels (namely, PRIIPs (packaged retail investment products) national law, approved by Law No 35/2018, dated 20 July 2018) or with a general scope (namely, the Standard Contractual Clauses Law, approved by Decree-Law No 446/85, dated 25 October 1985, and the Consumer Protection Law, approved by Law No 24/96, dated 31 July 1996). They are also supplement- ed by several regulations and circular letters issued by the Portuguese Regulatory Authority. The Portuguese jurisdiction is based on a civil law system, meaning that legal rules are codified under a set of legal statutes created by the legislature, rather
than being based on judicial decisions, as happens in a common law system. Court decisions are only relevant for the purposes of interpretation; they are not legally binding. 2. Regulation of Insurance and Reinsurance 2.1 Insurance and Reinsurance Regulatory Bodies and Legislative Guidance The competent authority for the prudential and regu- latory supervision of insurance and reinsurance busi- ness, insurance distribution and pension funds is Autoridade de Supervisão de Seguros e Fundos de Pensões (ASF). The ASF’s mission is to ensure the proper functioning of the insurance and pension funds market by promoting the stability and financial sound- ness of the entities under its supervision. It is also the ASF’s role to ensure high standards of conduct on the part of all the supervised entities aiming to protect policyholders, insureds, subscribers, beneficiaries and any interested parties. Besides supervision of regulated entities, the ASF’s duties include taking part in the macro-prudential oversight of the financial system and in the European System of Financial Supervisors, providing technical support to parliament and the government in matters related to the activities under its supervision and pro- moting financial literacy in the sector. The ASF’s powers are set out in the following main rules: • Law No 67/2013, dated 28 August 2013, which establishes the framework law of the public super- visory authorities; • the ASF’s statutes, approved by Decree-Law No 1/2015, dated 6 January 2015; • the Insurance Activity Law; • the Insurance Distribution Law; and • the legal framework applicable to crimes in the insurance and pension funds sector and to admin- istrative offences that are the responsibility of the ASF, approved by Law No 147/2015, dated 9 September 2015.
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