choose to maintain solvency levels in excess of requirements. Such insurers decide to hold levels of capital above minimum requirements for non-regulatory reasons. If the regulatory constraint that certain levels of capital be held is not a binding factor, then a reduction in the present IFSRA standard should not be anticipated to impact the behaviour of these firms. A reduction in regulatory requirements will not lead to lower capital levels for insurers in this case. 8.21 IFSRA has indicated that many insurers do actually
hold capital substantially in excess of regulatory requirements. It is widely understood that the largest insurers maintain solvency margins between 200% and 360%. Changes in regulatory capital
requirements will not likely result in significant changes in actual levels of capital for these insurers. 8.22 It is helpful to understand the many factors that
contribute to decisions made regarding capital levels. Though related to banking and not insurance, a recent study that examined the determinants of the level of capital held by banks and building societies is informative.10It notes that UK financial institutions hold substantially more capital than required by regulation. The study suggests a variety of reasons for this: (a) Covering unexpected additional risks, such as
business risk;
(b) Financing long term business strategy; (c) Retaining any excess capital because they
anticipate high adjustment costs of raising capital in future;
(d) Meeting a preference from credit agencies and bondholders for high capital levels; and (e) Wanting to be as well capitalised as peers.
The conclusion of this paper is that regulatory capital requirements are only one of many factors that drive financial institution decisions about total capital levels. They hold excess capital for deliberate business policy reasons, apart from regulatory solvency concerns. A recent paper by Milne adds another reason why financial institutions hold levels of capital substantially in excess of regulatory requirements - to reduce the threat of regulatory intervention.11These same factors are likely to contribute to capital decision-making by insurers.
8.23 Furthermore, IFSRA has indicated that it has no evidence that companies have been dissuaded from entering the Irish insurance marketplace because of its new entrant or on-going solvency requirements:
"The solvency requirements we have are broadly in line with the solvency requirements in place in other EU countries. We have not identified that as being a specific barrier, but it is an important issue we bear in mind when we develop the sales codes."12
8.24 Similarly, insurers have indicated that the IFSRA solvency requirements do not adversely impact their businesses. For example:
"Obviously the higher solvency requirements for new entrants require a higher level of capital to begin with. We do not feel this is over-demanding, and Quinn-direct has shown that it has been able to work with this regime successfully."13
8.25 The Authority has not received evidence that IFSRA's capital requirements have deterred insurers from entering the Irish market. This Study did find uncertainty as to what the requirements for a new entrant would actually be.
Recommendations
8.26 There may be a valid reason for imposing more stringent solvency standards on entrants than on existing suppliers. No standards imposed on new entrants, however, should be in excess of what is strictly required to compensate for increased risk of failure. Asymmetric solvency standards can place entrants at a disadvantage. Furthermore, requiring capital levels in excess of EU standards can also serve to deter entry, even if IFSRA's regulatory requirements are not binding on incumbents and no insurers have indicated that they have been deterred. Capital levels in the industry may change in the future, and insurers may re-evaluate their entry prospects, especially in the light of the recommendations in this Study. As such, solvency requirements for entrants should be as stringent as required for prudential purposes, but no higher. This is also true of on-going solvency requirements for incumbents. These concerns lead to the following recommendations:
10 Alfon, I, I. Argimon, and P. Bascunana-Ambros (2004), What determines how much capital is held by UK banks and building societies?, Occasional Paper Series 22, FSA, July.
11 Milne, A. (2002), "Bank Capital Regulation as an Incentive Mechanism: Implication for Portfolio Choice," Accepted for publication by the Journal of Banking and Finance, 26 (1), p. 1-24.
12 IFSRA (2003), Testimony of Ms Mary O'Dea before the Joint Oireachtas Committee on Enterprise and Small Business, 20 November.
13 Quinn-direct (2004), Submission by Quinn-direct Insurance Limited in response to request for submissions within the Preliminary Report of the Competition Authority, submission to The Competition Authority, p. 3.
90
Recommendation I10
IFSRA should issue guidelines detailing the regulatory requirements, including solvency standards, it will apply to insurers seeking to enter the Irish motor or liability insurance marketplace. To the extent that new entrants are required to meet standards in excess of those for existing suppliers, the guidelines should justify these increased standards.
8.27 The principles underpinning Recommendation I10 are transparency and proportionality of regulation. Of course, these principles apply whether the regulation relates to new entrants or existing providers.
Recommendation I11
The IFSRA guidelines called for in Recommendation I10 should include the justification for any solvency standards that are in excess of the EU requirements. Any standards in excess of EU requirements should be proportionate.
8.28 A review of the EU regulatory standards is now under way. This is known as Solvency II and will focus on capital requirements, supervisory practices and transparency through improved reporting by companies. This will introduce a more risk-based approach to capital requirements. In other words, companies that can demonstrate that they are managing and providing for risks in a prudent manner will benefit from lower capital requirements.14Such an approach to solvency regulation is appropriate. IFSRA is involved in the Solvency II project. In addition, the Department of Finance is a Member of the European Financial Services Policy Group whose task includes the review of insurance solvency requirements.15As Solvency II progresses, IFSRA and the Department of Finance should stress the principle that regulatory requirements should be as high as necessary for prudential reasons, but no higher. This applies both to existing insurers and new entrants.
8.29 Recommendations I10 and I11 are proportionate to the concerns identified. These concerns relate to
uncertainty on the solvency standards for new entrants
and also that solvency standards may be too high, either for entrants or incumbents. The recommendations seek to provide clarity regarding the regulatory requirements for entrants. They also seek to establish solvency requirements for entrants and incumbents at levels appropriate to the risks posed.
8.30 The Joint Oireachtas Committee addressed this subject in its recommendation # 48. This recommendation is, "The Irish solvency requirements for new entrants be exactly the same as for existing market participants."16 As indicated above, requirements need not be identical for entrants and incumbents. Any deviation from symmetry, however, should be transparent and proportionate to the risks posed by new entrants. The Joint Oireachtas Committee also addressed the subject of whether Irish solvency requirements should exceed EU minimums. More specifically, the Joint Oireachtas Committee recommended, "Irish solvency requirements be no higher than the norm required by EU regulation."17 While reduced solvency requirements may lessen entry barriers, there may be sound and proportionate prudential reasons for imposing increased solvency requirements. Furthermore, if lower standards lead to impressions that insurers are not safe, reduced standards may actually increase entry barriers by reducing consumer confidence and reducing switching. Recommendations I10 and I11 do not specifically call for Irish standards to match EU standards. Instead, they ask for solvency requirements to be determined in a way that is justified and transparent.
Policyholder Protection Fund
8.31 Even with solvency requirements and prudential supervision, there remains a possibility of an insurer becoming insolvent. One policy response to this eventuality is to establish a policyholder protection fund so that buyers of insurance would still have some protection against losses or claims.18
Issue of Concern
8.32 Policyholder coverage by these funds is determined by the regulation of the insurer's home state. The extent of coverage, both in terms of claimant eligibility and the fraction of claims covered, is not uniform across EU Member States. Indeed, the existence of policyholder protection funds is itself not uniform.
14 We note that the expectation is that capital requirement levels may increase as a result of Solvency II. "This [EU Solvency II Directive] may lead to an increase in our current solvency requirements." IFSRA (2003), Testimony of Ms Mary O'Dea before the Joint Oireachtas Committee on Enterprise and Small Business, 20 November. If so, then levels of excess capital may fall, and regulatory requirements may become binding.
15 Details are available from the European Commission's Internal Market website at
http://europa.eu.int/comm/internal_market/finances/docs/actionplan/policygroup/fspg1_en.pdf
16 Recommendation # 48, Joint Committee on Enterprise and Small Business (2004), Second Report, Second Interim Report on Reforms to the Irish Insurance Market, Houses of the Oireachtas, July, p. 68. (This recommendation was new to the Committee's report in July 2004.)
17 Recommendation # 49, Joint Committee on Enterprise and Small Business (2004), Second Report, Second Interim Report on Reforms to the Irish Insurance Market, Houses of the Oireachtas, July, p.68. (This recommendation was new to the Committee's report in July 2004). In addition, the Joint Oireachtas Committee's recommendation # 19 states: "The Irish Financial Services Regulatory Authority review the Irish solvency regulations to ensure that they are in the best interests of policyholders, existing insurance companies operating in Ireland and potential entrants". Joint Committee on Enterprise and Small Business (2004), Second Report, Second Interim Report on Reforms to the Irish Insurance Market, Houses of the Oireachtas, July, p. 67. (The Joint Oireachtas Committee report indicates that this recommendation has been accepted but not yet implemented.)
8.33 The existence of differential rules for fund operation creates uncertainty for consumers regarding whether liability for third party claims and return of premium for the unexpired risk period will be covered in the event of the failure of their insurer. This reduces the willingness of consumers to purchase insurance from suppliers attempting to compete on a cross-border basis and thus inhibits the establishment of an integrated market for insurance. Consumer confidence, both directly and through intermediary advice, creates a barrier to non- Irish suppliers. Furthermore, the asymmetric handling of schemes across Member States is a regulatory distortion of competition in that it favours some providers and disfavours others.
Analysis
8.34 When Independent Insurance Company, a UK insurer, collapsed in 2001, 600 business policyholders in Ireland were left exposed to claims. As a UK company, Independent Insurance was under supervision of the UK regulator. When a UK insurer collapses, only private policyholders or policyholders with cover for compulsory liabilities are eligible for compensation under the UK Policyholders Protection Act. Irish policyholders that purchased their insurance policy from the Irish branch of Independent or were part of Carol Nash Insurance Consultants' Irish book of business fell under the UK Policyholder Protection Act. If these policies met certain requirements, they were protected.19
8.35 Ireland's policyholder protection fund is known as the Insurance Compensation Fund. As described in Chapter 4, it was used to cover policies after the collapse of the insurer PMPA in the 1980s. The Insurance Compensation Fund is funded only on an as-needed basis. In the case of the failure of PMPA, this funding took the form of a levy on all non-life insurers. The ad hocnature of the present system causes regulatory uncertainty. This uncertainty may distort competition.
8.36 There is little uniformity of guarantee funds across Member States. Sixteen European countries have a guarantee fund that covers motor insurance, although the funds in Sweden, Iceland and Norway do not provide protection for undertakings in winding-up. Eight countries have a protection scheme for non-life insurance, and six countries have a scheme for life insurance. Malta, Spain and the UK have systems that provide guarantees for both life and non-life policies.
Germany also provides protection for life and non-life insurance but accomplished this using two separate systems. France and The Netherlands only have schemes for the protection of life insurance. The Dutch scheme for life insurance is similar to that of Germany. Denmark, Ireland, Finland and Norway have schemes that only provide protection for non-life insurance.20 8.37 IFSRA has recognised the importance of buyer trust
when selecting suppliers of financial services. For example, it stated to the Joint Oireachtas Committee: "Part of the issue with financial services generally, not just insurance, is that people believe, even in terms of general insurance, that there is a trust factor. When we had overseas competition in the banking sector, if people did not recognise the brand names when placing deposits, for example, they were reluctant to move."21
Similarly, a report to the European Financial Services Round Table noted:
"For insurance products, a lack of confidence in the long-run reliability of unknown foreign suppliers is a particularly relevant obstacle."22
8.38 Due to the trust factor, customer confidence can have a significant impact on competition by having an impact on customer willingness to purchase from or switch to certain suppliers. Buyers would not be expected to have enough information to judge at the time of purchase whether a particular insurer will be able to meet claims in the future.23As discussed in Chapter 4, this is one reason why insurers are regulated. Where a buyer might not be familiar with an insurer based in another Member State, the existence of a policyholder protection fund might reassure the buyer that it is safe to seek insurance on a freedom-of-services basis from the insurer. 8.39 The possibility of introducing some minimum
harmonisation of guarantee schemes is currently under discussion at EU/EEA level. This potential harmonisation would ensure protection to buyers of insurance (and third party claimants) in the event of the collapse of an insurer. Within these discussions, Ireland is represented by IFSRA and the Department of Finance. The necessity of having these discussions at EU/EEA, rather than national, level arises from the possibility that an insurer and the relevant
policyholders could be in different Member States.