Regulatory framework: ‘threshold conditions’ for insurers
In addition to complying with the Principles for Business (GIM3080), firms must meet five general ’Threshold Conditions’ relating to legal status, the location of the business, supervisability, adequacy of resources and suitability (COND2.1). Schedule 6 to FSMA 2000 specifies that a threshold condition in relation to contracts of insurance is that the authorised person must be a body corporate, a registered friendly society or a member of Lloyd’s.
COND2.6 sets out the additional conditions that apply to non-EEA insurers.
Specific requirements for applicants seeking to carry on insurance business are set out in AUTH3.12. For insurers the requirements include a restriction on carrying on other commercial business. As was the case with ICA 1982, permission under Part 4 FSMA 2000 will not be granted to carry on both long term and general insurance unless the applicant’s business will be restricted to reinsurance or the general business is restricted to accident and sickness contracts (AUTH3.12.4).
The Supervision sourcebook (SUP) sets out the FSA’s approach to the monitoring of regulated activities. SUP App2 imposes additional reporting requirements on insurers in certain circumstances, for example where a firm falls below its solvency margin, or is taken over, or goes into run-off.
Each applicant for permission under the Act must decide whether its activities involve any specified investments or regulated activities, and which prudential category it falls into. The detailed regulations on what constitutes a regulated activity are set out in the Regulated Activities Order (RAO). Article 10 specifies ‘effecting’ and ‘carrying out’ contracts of insurance and Article 75 identifies contracts of insurance as specified investments. The reference to ‘carrying out’ is important, as an insurer remains such even if it is no longer effecting fresh contracts.
The Perimeter Guidance Manual (PERG6) contains authoritative guidance on whether certain types of transaction amount to contracts of insurance.