Scope of application

4.2.1 Scope of undertakings concerned

This Chapter applies to:

  • Insurance undertakings under Belgian law (including such small insurance undertakings as are referred to in Article 275 of the Insurance Supervision Law);
  • Reinsurance undertakings under Belgian law;
  • Branches established in Belgium of insurance or reinsurance undertakings governed by the law of third countries;
  • Insurance holding companies under Belgian law;
  • Mixed financial holding companies under Belgian law at the head of a financial conglomerate in which the insurance sector is the main sector.

For reasons of consistency and level playing field, a cross-sectoral approach to the suitability requirements has been pursued as far as possible. Therefore, the guidelines dealt with in this Chapter ‑ to the extent that they fall within the scope of the legal obligations applicable to the undertakings concerned ‑ apply to all the afore-mentioned undertakings. However, in assessing suitability, the NBB will take into account the nature, size, complexity, risk profile and organisational structure of the undertaking in which the person concerned operates (see point 4.4.2.4). In the view of the NBB as supervisor, there are no decisive reasons for the interpretation of the assessment standards to vary according to the components of the financial sector.

4.2.2 Scope of persons concerned

This chapter deals with the assessment of the individual and, where applicable, collective suitability of persons who hold or wish to hold the following positions:

  • director;
  • member of the management committee (whether a director or not) or senior manager for undertakings that have received an exemption, on the basis of Article 47 of the Insurance Supervision Law, from the obligation to set up a management committee;
  • responsible person of an independent control function (the assessment must in all cases relate to the persons with the most senior operational responsibility[1] for these supervisory functions) or, when outsourcing the independent control function, the person who is responsible for monitoring such outsourcing (and will be referred to as the “relay person”);
  • general agent and, where applicable, the persons in charge of senior management of the branch.

All the above functions are subject to prior approval by the NBB (see point 4.6 below).

[1]  The so‑called “DC -1 level”, except for the Chief Risk Officer, who must in principle be a member of the management committee.

4.2.3 Cross-border context

For the application of this chapter within a cross-border context, we need to make a distinction between the following two situations:

  • EEA undertakings which operate in Belgium via a branch or pursuant to the freedom to provide services (“inward passporting”): this chapter does NOT apply.
    Consequently, persons who hold or wish to hold any of the above-mentioned positions at undertakings which are authorised or registered by the competent supervisory authority of a State of the European Economic Area and which operate in Belgium either through a branch or pursuant to the freedom to provide services do not fall within the scope of this chapter.
  • Belgian undertakings which operate abroad through a branch (“outward passporting”) or branches established in Belgium of insurance or reinsurance undertakings governed by the law of a State that is not a member of the European Economic Area: this chapter DOES apply in this case.
    On the other hand, this chapter does apply to persons employed by undertakings authorised in Belgium and operating abroad through a branch, as well as persons employed by branches established in Belgium of insurance or reinsurance undertakings governed by the law of a non-EEA State. The persons referred to in this case are the general agent of the branch or, where applicable, the persons in charge of senior management of the branch and the local responsible persons of the independent control functions.

4.2.4 Group context

The application of this chapter in a group context can be explained as follows. Both in terms of the parent company governed by Belgian law and all regulated Belgian subsidiaries, the persons in question must be fit to hold their positions and must thus meet the suitability assessment standards. If a person holds, both with the parent company and the subsidiary, a position which falls within the scope of the Law, two separate assessments need to be carried out. However, in accordance with the EIOPA Guidelines and Circular 2016_31, the entity responsible for an insurance or reinsurance group must ensure that there is a consistent group policy for assessing fitness (and compliance therewith) for all subsidiary undertakings within the insurance or reinsurance group.