PORTUGAL Law and Practice Contributed by: Leonor Futscher de Deus, Broseta Abogados, SLP
General good provisions The pursuit of insurance business in Portugal under an EU passport is subject to compliance with several rules considered to be of “general good”, as deter- mined by the ASF, which include (but are not limited to) the following. • Payment of the indirect taxes and rates estab- lished in Portuguese law with regard to premiums of insurance contracts covering risks situated in Portuguese territory or where Portugal is the mem- ber state of the commitment, regardless of the law applicable to the contract. • Compliance with several rules arising from the Insurance Contract Law regarding pre-contractual information and mandatory provisions. • Prohibition of underwriting certain risks forbidden under the Portuguese legal framework. • Compliance with market conduct provisions ‒ namely, in terms of client handling policies, adver- tising, complaints management, the complaints book, the client ombudsman, and a website dedi- cated to the Portuguese market. • Reporting of periodic information to the ASF. • General compliance with mandatory provisions ‒ namely, concerning insurance distribution, stand- ard contractual clauses (rules regarding abusive clauses and font size), and advertising. Insurances that are compulsory within the Portuguese legal system are additionally subject to the following. • Must be ruled by Portuguese law. • The general terms and conditions of the policy (and any amendments thereto) must be registered with the ASF before the beginning of business (or one month thereafter). • A claims representative residing in Portugal must be appointed. Per type of insurance: • life insurances, capital redemption operations and personal accident insurances – compliance with the central register established by Decree-Law No 384/2007, dated 19 November 2007; • unit-linked life insurances – ex ante notification of the key information document to the ASF, under
PRIIPs Framework and Law No 35/2018, dated 20 July 2018; • motor vehicle insurance – registration at the Por- tuguese Green Card Bureau, contribution to the national motor guarantee fund, and periodic report- ing on insured vehicles and claims; and • work accidents – compliance with mandatory legal and regulatory provisions applicable to this type of insurance and contribution to the national work accidents fund. Reinsurers • Acting under FoS ‒ without prejudice to any appli- cable local rules of the home member state, the pursuit of reinsurance business in Portugal under freedom of services does not require notification to the ASF. • Acting through a branch ‒ the taking-up and pursuit of reinsurance business in Portugal through a branch is subject to notification to the supervisory authorities of the home member state, which will thereafter communicate this information to the ASF. Third Countries’ (Non-EEA) Undertakings As a rule, the taking-up and pursuit of insurance and reinsurance business in Portugal by an undertak- ing with a head office established outside the EEA (“non-EEA undertakings”) requires the establishment of a branch and prior authorisation from the ASF. The authorisation will depend on the following conditions being met by the undertaking. • Is entitled to pursue insurance or reinsurance busi- ness under its national law for more than five years. • Has as its exclusive corporate purpose, insurance or reinsurance business. • Undertakes to set up at the branch accounts that are specific to the business pursued locally and to keep all the records regarding the business trans- acted. • Appoints a general representative (natural or legal person), who must fill in the criteria laid down in the Insurance Activity Law and get approval from the ASF. • Holds assets in Portugal of an amount equal to at least half of the absolute floor prescribed in respect of the applicable minimum capital requirement and deposits a quarter of that absolute floor as security.
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