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6.10.2011 Official
Journal
of
the
European
Union L
262/45
DECISION OF THE EEA JOINT COMMITTEE
No 78/2011
of 1 July 2011
amending Annex IX (Financial services) to the EEA Agreement
THE EEA JOINT COMMITTEE,
(2) point 1 (Council Directive 64/225/EEC) shall be
renumbered as point 1a;
Having regard to the Agreement on the European Economic
Area, as amended by the Protocol adjusting the Agreement
on the European Economic Area, hereinafter referred to as
(3) the following point shall be inserted before new point 1a
‘the Agreement’, and in particular Article 98 thereof,
(Council Directive 64/225/EEC):
Whereas:
‘1. 32009 L 0138: Directive 2009/138/EC of the European
Parliament and of the Council of 25 November 2009 on
(1) Annex
IX
to
the
Agreement
was
amended
by
Decision
of
the taking-up and pursuit of the business of Insurance
the EEA Joint Committee No 120/2010 of 10 November
and Reinsurance (Solvency II) (OJ L 335, 17.12.2009,
2010 ( 1 ).
p. 1).
(2) Directive
2009/138/EC
of
the
European
Parliament
and
of the Council of 25 November 2009 on the taking-up
The provisions of the Directive shall, for the purposes of
and pursuit of the business of Insurance and Reinsurance
this Agreement, be read with the following adaptations:
(Solvency II) ( 2 ) is to be incorporated into the Agreement.
(3) Directive
2009/138/EC
repeals,
with
effect
from
(a) the following shall be added in Article 8:
1 November 2012, Council Directives 64/225/EEC ( 3 ),
73/239/EEC ( 4 ), 73/240/EEC
( 5 ), 76/580/EEC
( 6 ),
78/473/EEC ( 7 ), 84/641/EEC
( 8 ), 87/344/EEC
( 9 ),
“(5) in Iceland, Vilagatrygging slands.”;
88/357/EEC ( 10 ) and 92/49/EEC
( 11 ) and Directives
98/78/EC ( 12 ), 2001/17/EC
( 13 ), 2002/83/EC
( 14 ) and
2005/68/EC ( 15 ) of the European Parliament and of the
Council, which are incorporated into the Agreement and
(b) Articles 57 to 63 regarding the prudential
which are consequently to be repealed under the
assessment of a proposed acquirer shall not apply
Agreement with effect from 1 November 2012.
where the proposed acquirer, as defined in the
Directive, is situated or regulated outside the
territory of the Contracting Parties;
(4) Directive
2009/138/EC
recasts
some
of
the
repealed
acts
and therefore the current EEA adaptations to the latter
are partly to be maintained,
(c) in Article 157(2), the words “and under Regulation
(EC) No 593/2008” shall be deleted;
HAS ADOPTED THIS DECISION:
Article 1
(d) Article 171 shall not apply. The following provision
shall be applicable:
Annex IX to the Agreement shall be amended as follows:
(1) the heading ‘(i) Non-life insurance’ in Chapter I (Insurance)
Each Contracting Party may, by means of
shall be renamed ‘(i) Non-life and life insurance’;
agreements concluded with one or more third
countries, agree to the application of provisions
( 1 ) OJ L 58, 3.3.2011, p. 77.
different from those provided for in Articles 162
( 2 ) OJ L 335, 17.12.2009, p. 1.
to 170 of the Directive on the condition that its
( 3 ) OJ 56, 4.4.1964, p. 878/64.
policy holders and insured persons are given
( 4 ) OJ L 228, 16.8.1973, p. 3.
adequate and equivalent protection. The Contracting
( 5 ) OJ L 228, 16.8.1973, p. 20.
Parties shall inform and consult each other prior to
( 6 ) OJ L 189, 13.7.1976, p. 13.
( 7 ) OJ L 151, 7.6.1978, p. 25.
concluding such agreements. The Contracting Parties
( 8 ) OJ L 339, 27.12.1984, p. 21.
shall not apply to branches of insurance under
( 9 ) OJ L 185, 4.7.1987, p. 77.
takings having their head of office outside the
( 10 ) OJ L 172, 4.7.1988, p. 1.
territory of the Contracting Parties provisions
( 11 ) OJ L 228, 11.8.1992, p. 1.
which result in more favourable treatment than
( 12 ) OJ L 330, 5.12.1998, p. 1.
that accorded to branches of insurance undertakings
( 13 ) OJ L 110, 20.4.2001, p. 28.
( 14 ) OJ L 345, 19.12.2002, p. 1.
having their head of office within the territory of the
( 15 ) OJ L 323, 9.12.2005, p. 1.
Contracting Parties;

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L 262/46
EN
Official Journal of the European Union
6.10.2011
(e) whenever the European Union negotiates with one
(b) the parties may at any time agree to subject
or more third countries on the basis of Article 175,
the contract to a law other than that which
it shall endeavour to obtain equal treatment for the
previously governed it. Any change in the
insurance and reinsurance undertakings of the EFTA
law to be applied that is made after the
States;
conclusion of the contract shall not
prejudice its formal validity or adversely
affect the rights of third parties;
(f) as regards third-country treatment of insurance and
reinsurance undertakings as described in Article 177,
the following shall apply:
(c) where all other elements relevant to the
situation at the time of the choice are
located in a country other than the country
With a view to achieving a maximum degree of
whose law has been chosen, the choice of
convergence in the application of a third-country
the parties shall not prejudice the application
regime for insurance and reinsurance undertakings,
of provisions of the law of that other
the Contracting Parties shall exchange information as
country which cannot be derogated from
described in Article 177(1) and consultations shall
by agreement;
be held regarding matters referred to in
Article 177(2) within the framework of the EEA
Joint Committee and according to specific
procedures to be agreed by the Contracting Parties;
(d) where all other elements relevant to the
situation at the time of the choice are
located in one or more Contracting Parties,
the parties’ choice of applicable law other
(g) the text of Article 178 shall be replaced by the
than that of a Contracting Party shall not
following:
prejudice the application of provisions of
EEA law, where appropriate as implemented
in the Contracting Party of the forum, which
“1. This Article shall apply to contracts referred to
cannot be derogated from by agreement.
in paragraph 2, whether or not the risk covered
is situated in the territory of a Contracting Party,
and to all other insurance contracts covering
risks situated inside the territory of the
4. The existence and validity of the consent of the
Contracting Parties. It shall not apply to rein
parties as to the choice of the applicable law
surance contracts.
shall be determined in accordance with the
following provisions:
2. An insurance contract covering a large risk as
defined in Article 13(27) shall be governed by
the law chosen by the parties.
(a) the existence and validity of a contract, or of
any term of a contract, shall be determined
by the law which would govern it under this
Article if the contract or term were valid.
To the extent that the applicable law has not
been chosen by the parties, the insurance
contract shall be governed by the law of the
country where the insurer has his habitual
Nevertheless, a party, in order to establish
residence. Where it is clear from all the circum
that he did not consent, may relay upon
stances of the case that the contract is manifestly
the law of the country in which he has his
more closely connected with another country,
habitual residence if it appears from the
the law of that other country shall apply.
circumstances that it would not be
reasonable to determine the effect of his
conduct in accordance with the law
specified in subparagraph 1 of this letter;
3. The law governing a contract shall be chosen by
the parties in accordance with the following
provisions:
(b) a contract concluded between persons who,
or whose agents, are in the same country at
(a) the choice shall be made expressly or clearly
the time of its conclusion is formally valid if
demonstrated by the terms of the contract or
it satisfies the formal requirements of the law
the circumstances of the case. By their choice
which governs it in substance under the law
the parties can select the law applicable to
of this Article or of the law of the country
the whole or to part only of the contract;
where it is concluded.

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EN
6.10.2011 Official
Journal
of
the
European
Union L
262/47
A contract concluded between persons who,
(b) the law of the country where the policy
or whose agents, are in different countries at
holder has his habitual residence;
the time of its conclusion is formally valid if
it satisfies the formal requirements of the law
which governs it in substance under this
(c) in the case of life assurance, the law of the
Article, or of the law of either of the
Contracting Party of which the policy holder
countries where either of the parties or
is a national;
their agent is present at the time of
conclusion, or of the law of the country
where either of the parties had his habitual
(d) for insurance contracts covering risks limited
residence at that time.
to events occurring in one Contracting Party
other than the Contracting Party where the
risk is situated, the law of that Contracting
A unilateral act intended to have legal effect
Party;
relating to an existing or contemplated
contract is formally valid if it satisfies the
formal requirements of the law which
(e) where the policy holder of a contract falling
governs or would govern the contract in
under this paragraph pursues a commercial
substance under this Article, or of the law
or industrial activity or a liberal profession
of the country where the act was done, or of
and the insurance contract covers two or
the law of the country where the person by
more risks which relate to those activities
whom it was done had his habitual residence
and are situated in different Contracting
at that time.
Parties, the law of any of the Contracting
Parties concerned or the law of the country
of habitual residence of the policy holder.
Notwithstanding subparagraphs 1 to 3 of
this letter, a contract the subject matter of
which is a right in rem in immovable
Where, in the cases set out in points (a), (b) or
property or a tenancy of immovable
(e) of this paragraph, the Contracting Party
property shall be subject to the requirements
referred to grant greater freedom of choice of
of form of the law of the country where the
the law applicable to the insurance contract,
property is situated if by that law:
the parties may take advantage of that freedom.
(i) those requirements are imposed irre
To the extent that the law applicable has not
spective of the country where the
been chosen by the parties in accordance with
contract is concluded and irrespective of
this paragraph, such a contract shall be governed
the law governing the contract; and
by the law of the Contracting Party in which the
risk is situated at the time of conclusion of the
contract.
(ii) those requirements cannot be derogated
from by agreement.
6. The following additional rules shall apply to
insurance contracts covering the risk for which
a Contracting Party imposes an obligation to
(c) In a contract concluded between persons
take out insurance:
who are in the same country, a natural
person who would have capacity under the
law of that country may invoke his inca
pacity resulting from the law of another
(a) the insurance contract shall not satisfy the
country, only if the other party to the
obligation to take out insurance unless it
contract was aware of that incapacity at the
complies with the specific provisions
time of the conclusion of the contract or was
relating to that insurance laid down by the
not aware thereof as a result of negligence.
Contracting Party that imposes the obli
gation. Where the law of the Contracting
Party in which the risk is situated and the
law of the Contracting Party imposing the
5. In the case of an insurance contract other than a
obligation to take out insurance contradict
contract falling within paragraph 2, only the
each other, the latter shall prevail;
following laws may be chosen by the parties in
accordance with paragraph 3:
(b) by way of derogation from paragraphs 2 and
4, a Contracting Party may lay down that the
(a) the law of any Contracting Party where the
insurance contract shall be governed by the
risk is situated at the time of conclusion of
law of the Contracting Party that imposes
the contract;
the obligation to take out insurance.

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L 262/48
EN
Official Journal of the European Union
6.10.2011
7. For the purposes of paragraph 4, third
(4) the following shall be added in point 31d (Directive
subparagraph, and paragraph 5, where the
2003/41/EC of the European Parliament and of the
contract covers risks situated in more than one
Council):
Contracting Party, the contract shall be
considered as constituting several contracts
each relating to only one Contracting Party.
‘, as amended by:
— 32009 L 0138: Directive 2009/138/EC of the European
8. For the purposes of this Article, the country in
Parliament and of the Council (OJ L 335, 17.12.2009,
which the risk is situated shall be determined in
p. 1).’;
accordance with Article 13(13) and, in the case
of life insurance, the country in which the risk is
situated shall be the country of the commitment
(5) the text of points 1a (Council Directive 64/225/EEC), 2
within the meaning of Article 13(14).”;
(First Council Directive 73/239/EEC), 3 (Council Directive
73/240/EEC), 4 (Council Directive 78/473/EEC), 5 (Council
Directive 84/641/EEC), 6 (Council Directive 87/344/EEC), 7
(h) the following shall be added in Annex III(A):
(Second Council Directive 88/357/EEC), 7a (Council
Directive 92/49/EEC), 7b (Directive 2005/68/EC of the
“(29) in the case of the Republic of Iceland:
European Parliament and of the Council), 12c (Directive
‘Hlutafélag’;
98/78/EC of the European Parliament and of the Council)
and 13a (Directive 2001/17/EC of the European Parliament
and of the Council) shall be deleted with effect from
(30) in the case of the Principality of Liechtenstein:
1 November 2012;
‘Aktiengesellschaft’, ‘Europische Gesellschaft
(SE)’, ‘Genossenschaft’, ‘Europische Genossen
schaft (SCE)’;
(6) the text of, and heading related to, point 11 (Directive
2002/83/EC of the European Parliament and of the
Council) shall be deleted with effect from 1 November
(31) in the case of the Kingdom of Norway: ‘Aksje
2012;
selskaper’, ‘Gjensidige selskaper’.”;
(7) the headings ‘(iv) Supervision and accounts’ and ‘(v) Other issues’
(i) the following shall be added in Annex III(B):
in Chapter I (Insurance) shall be renumbered as headings
‘(iii) Supervision and accounts’ and ‘(iv) Other issues’ with effect
from 1 November 2012.
“(29) in the case of the Republic of Iceland:
‘Hlutafélag’;
Article 2
(30) in the case of the Principality of Liechtenstein:
The text of Directive 2009/138/EC in the Icelandic and
‘Aktiengesellschaft’, ‘Europische Gesellschaft
Norwegian languages, to be published in the EEA Supplement
(SE)’, ‘Genossenschaft’, ‘Europische Genossen
to the Official Journal of the European Union, shall be authentic.
schaft (SCE)’;
Article 3
(31) in the case of the Kingdom of Norway: ‘Aksje
This Decision shall enter into force on 2 July 2011, provided
selskaper’, ‘Gjensidige selskaper’.”;
that all the notifications pursuant to Article 103(1) of the
Agreement have been made to the EEA Joint Committee (*).
(j) the following shall be added in Annex III(C):
Article 4
“(29) in the case of the Republic of Iceland:
This Decision shall be published in the EEA Section of, and in
‘Hlutafélg’;
the EEA Supplement to, the Official Journal of the European
Union.
(30) in the case of the Principality of Liechtenstein:
‘Aktiengesellschaft’, ‘Europische Gesellschaft
(SE)’, ‘Genossenschaft’, ‘Europische Genossen
Done at Brussels, 1 July 2011.
schaft (SCE)’;
For the EEA Joint Committee
(31) in the case of the Kingdom of Norway: ‘Aksje
selskaper’, ‘Allmennaksjeselskaper’, ‘Gjensidige
The President
selskaper’.” ’;
Kurt JGER
(*) Constitutional requirements indicated.

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EN
6.10.2011 Official
Journal
of
the
European
Union L
262/49
Unilateral Declaration by Liechtenstein to Decision No 78/2011 incorporating Directive 2009/138/EC into the
Agreement
‘The Principality of Liechtenstein has concluded a bilateral agreement with Switzerland in 1996 concerning
direct insurance. On the basis of reciprocity, the Agreement aims at governing the conditions that are
necessary and sufficient to enable insurance undertakings whose head office is in the territory of a
Contracting Party to benefit from the freedom of establishment and services with respect to direct
insurance in the territory of the other Contracting Party.’

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