Cap. 403 Art. 33Transfer of general business.

(1) Where it is proposed to carry out a scheme under which an authorised insurance undertaking ("the transferor"), is to transfer to another undertaking, whether authorised thereunder or not ("the transferee") all its rights and obligations under such general business policies, or general business policies of such descriptions, as may be specified in the scheme, and -

(a) where the transferor is an undertaking whose head office is in Malta, the performance by it of the obligations proposed to be transferred constitutes the carrying on of business of insurance in or from Malta or in or from a country outside Malta; or

(b) where the transferor is a third country insurance undertaking, the performance by it of the obligations proposed to be transferred constitutes business of insurance in or from Malta, the transferor shall apply to the competent authority for its approval of the scheme.

(2) The competent authority shall not determine an application made under sub-article (1) unless it is satisfied that -

(a) a notice approved by it for the purpose has been published -

(i) in at least two local daily newspapers of which one is published in the Maltese language and the other in the English language; and the text of the notice shall be in Maltese in the Maltese daily and in English in the English daily;

(ii) where the transferor is an undertaking which carries on business from Malta or in or from a country outside Malta and, as regards any policy included in the proposed transfer which evidences a contract of insurance, the risk is a risk situated outside Malta, in two daily newspapers in the country where the risk is situated;

(b) except in so far as the competent authority has otherwise directed, a copy of the notice has been sent by the transferor to every policyholder affected by the scheme and every other person who claims an interest in a policy included in the proposed transfer and has given notice of his claim to the transferor;

(c) copies of a statement setting out particulars of the transfer and approved for the purpose by the competent authority have been available for inspection -

(i) at each of the branches, agencies and offices of the transferor in Malta;

(ii) except in so far as the competent authority has otherwise directed, where the transferor is an undertaking which carries on business from Malta or in or from a country outside Malta and, as regards any policy included in the proposed transfer which evidences a contract of insurance, the risk is a risk situated outside Malta, at one or more places in the country where the risk is situated, for a period of not less than thirty days beginning with a date to be determined by the competent authority.

(3) The notice referred to in sub-article (2) shall include a statement that written representations concerning the transfer may be sent to the competent authority within a period to be specified by the competent authority; and the competent authority shall not determine the application until after considering any representations made to it before the specified day.

(4) The competent authority shall not approve a transfer on an application made under sub-article (1) unless it is satisfied that -

(a) (i) the transferee is, or immediately after the approval will be, authorised under article 7 to carry on general business of the class or classes or part classes to be transferred under the scheme;

(ii) the transferee is, or immediately after the approval will be, authorised under Article 14 or Article 162 of the Solvency II Directive to carry on general business of the class or classes or part classes to be transferred under the scheme in a Member State or EEA State; or

(iii) if the transferee does not fall within sub-paragraphs (i) and (ii) of this paragraph, the transferee has the authorisation required to enable the business, or part which is to be transferred, to be carried on in the place to which it is to be transferred, or will have it before the scheme takes effect; and

(b) (i) the transferee referred to in sub-paragraph (i) of paragraph (a) of this sub-article possesses, after taking the proposed transfer into account, the necessary eligible own funds to cover the Solvency Capital Requirement required to be maintained under this Act;

(ii) the transferee referred to in sub-paragraph (ii) of paragraph (a) of this sub-article possesses, after taking the proposed transfer into account, the necessary eligible own funds to cover the Solvency Capital Requirement provided for in Article 100 of the Solvency II Directive; or

(iii) if the transferee does not fall within sub-paragraphs (i) and (ii) of this paragraph, the transferee possesses, or will possess before the scheme takes effect, the solvency requirements required of it by, or under, the law applicable in the place to which the business is being transferred; and

(c) (i) if the transferee is an undertaking authorised under this Act, the transferee’s financial resources are, consequential to the transfer, adequate to fulfil the other obligations required of it by, or under, this Act; or

(ii) if the transferee is a European insurance undertaking, the transferee’s financial resources are consequential to the transfer, adequate to fulfil the other obligations required of it by, or under, the law applicable in the place to which the business is being transferred; or

(iii) if the transferee is a third country insurance undertaking, the transferee’s financial resources are, consequential to the transfer, adequate to fulfil the other obligations required of it by, or under, the law applicable in the place to which the business is being transferred; and

(d) if the transferor is an undertaking whose head office is in Malta, and the establishment from which the policies are to be transferred is situated in a Member State or EEA State -

(i) the European regulatory authority in that Member State or EEA State has been consulted about the proposed transfer; and

(ii) the European regulatory authority has either responded or the period of three months beginning with the consultation has elapsed;

(e) if the transferor is an undertaking which carries on business from Malta or in or from a country outside Malta and, as regards any policy included in the proposed transfer which evidences a contract of insurance, the risk is a risk situated outside Malta -

(i) the European regulatory authority in the country where the risk is situated has been notified of the proposed transfer; and

(ii) the overseas regulatory authority where the risk is situated has been notified of the proposed transfer; and

(iii) either the European regulatory authority or the overseas regulatory authority has consented to the transfer or the European regulatory authority or the overseas regulatory authority has not refused its consent to the transfer within the period of three months beginning with the date of the notification.

(5) On determining an application made under sub-article (1), the competent authority shall -

(a) publish a notice of its decision in such manner as it may think fit; and

(b) send a copy of that notice to the transferor, the transferee and every person who made representations in accordance with the notice referred to in sub-article (2), and if it refuses the application it shall inform the transferor and the transferee in writing of the reasons for its refusal.