The Swedish insurance industry has a long history and the Swedish insurance market has previously distinguished itself as a closed market dominated by small number of domestic companies. However, during the past decade Sweden has gradually opened the insurance market to both domestic and foreign competition. Sweden's accession to the European Union (EU) on January 1 1995 resulted in a liberalization of the market that was further increased through Sweden's implementation of EU directives.
In Sweden the bank-insurance concept for a new structure of the financial services industry was early adopted. The Swedish financial services sector had taken self-service via the Internet to a leading position.
Swedish Insurance Provisions
Establishing a Swedish insurance Company
In order to establish a new Swedish insurance company the founders must apply for authorization from the Swedish Financial Supervisory Authority (SFSA). Such an application is evaluated on the merits of the management and the owners controlling 10% or more of the capital or votes of the undertaking, the nature of the planned business and the size of the capital.
Acquiring a Swedish Insurance Company
Acquisitions, both Swedish and foreign, of qualified holdings in Swedish insurance companies are subject to a permit from the SFSA. A permit must be obtained when limits of 10%, 20%, 33% or 50% of the capital or the votes are reached.
Branch offices or general agencies
In accordance with the Foreign Insurance Activities Act an insurer domiciled within the European Economic Area (EEA) may establish either an agency or a branch in Sweden without prior Swedish authorization. However, this is subject to certain notification procedures with the authorities of its home state.
Insurers domiciled outside the EEA are subject to more restrictive regulations. They may only carry on business in Sweden if they have obtained a licence. Their business may also be conducted through an agency or a branch, but only if a major deposit is made with a Swedish bank.
However, the 1989 agreement between Switzerland and the EU enables Swiss non-life insurance undertakings to be granted authorization to establish either an agency or a branch in Sweden without any deposit.
According to the Foreign Insurance Activities Act undertakings within the EEA may directly market insurance in Sweden, provided that they have authorization from their home state and subject to notification to the home-state authority.
Motor insurance undertakings are required to appoint a Swedish claims settlement representative entrusted with the necessary powers to settle claims on behalf of the undertaking. Further, motor insurance undertakings must certify that they have joined and participated in financing the Swedish Motor Insurance Bureau.
Insurers domiciled outside the EEA may only provide cross-border services in Sweden through intermediation by an insurer licensed in Sweden, and subject to a specific permit from the SFSA.
The Swedish Insurance Brokerage Act requires that an independent insurance intermediary who arranges insurance coverage on a commercial basis should register himself as an insurance broker with the SFSA. However, the act also allows cross-border activities that can be carried on by insurance intermediaries registered in other EEA states without any further registration in Sweden, subject to certain notification procedures with the SFSA.
An insurance broker registered in Sweden may be an individual of Swedish or non-Swedish nationality, or a legal entity. Although such a legal entity does not have to be incorporated in Sweden, non-Swedish legal entities may only carry on business in Sweden through a registered branch.
On December 9 2002 the European Parliament and Council Commission adopted a Directive on Insurance Brokerage aimed at improving the efficiency of the single market in insurance.
Business requirements for Swedish insurance companies
A Swedish insurance company may not engage in any other business than insurance.
Swedish insurance companies must meet specific requirements of solidity and liquidity and have control over insurance, investment and business risks. The business shall also be conducted at a certain professional level and claims shall be handled in good order with fair settlements. The SFSA is entitled to investigate the conduct of the business in order to ensure that the company meets these requirements.
Financial Status and Investment Restrictions
As far as non-Swedish insurers domiciled within the EEA are concerned, the solvency regulations of the member state where the insurance company’s management head office is located apply to the entire activity of the company, including activities carried out by a Swedish branch or agency.
Swedish insurance companies and Swedish agencies and branches of insurance companies domiciled outside the EEA are liable to maintain adequate available solvency margin in respect of its business. In relation to Swedish insurance companies, the adequate available solvency margin should also be sufficient in relation to other companies in the same insurance group (ie, a group of companies where an insurance company either owns 20% or more of another insurance or reinsurance company, or is a subsidiary of an insurance holding company, a foreign reinsurance company, a non-EEA insurance undertaking or a mixed activity insurance holding company). After application to the SFSA, subordinated loans may be part of the adequate available solvency margin.
For non-life insurance companies and life insurance companies that can pay dividends to their shareholders, a specific guarantee fund is required. Life insurance companies that are not dividend-paying companies shall have a specific consolidation fund. As regards insurance companies involved in credit risk insurance, an equalization reserve is also required. Swedish agencies of insurers domiciled outside the EEA are also liable to maintain the bank deposit mentioned above.
Under Swedish law an insurance company shall, as far as investments matching the technical provisions are concerned, consider the nature of the undertaking's liabilities and diversify its investments with due consideration and with the object of limiting currency risks. Besides this basic rule there are a number of specific restrictions as to the investment of funds matching the technical provisions.
Assets matching the technical provisions shall be located within the EEA if the risks are located (non-life insurance) or if the activities are conducted (life insurance) within the EEA. Otherwise they shall be located in Sweden. Notwithstanding these restrictions, insurance companies are allowed to invest in assets located outside the EEA as long as the investment is safe and does not undermine Swedish priority rules (ie, rules aiming at securing the policyholders' rights to the assets in case of insolvency). Swedish agencies of non-EEA insurers shall hold their assets matching the technical provisions in Sweden.
Loans and distributions
Until January 1 2000 Swedish life insurance companies were not allowed to distribute their profits to the shareholders or guarantors of a mutual insurance company. Nor was a life insurance company allowed to issue profit-related debt instruments. Further, no insurance company, whether life or non-life, was allowed to issue convertible bonds. Moreover, Swedish law allows fundraising by loans only if the funds are needed for the insurance activity as such or to render the fund management more effective. Loans for the financing of capital investments are generally not allowed.
Both non-life insurance companies and dividend-paying life insurance companies are allowed to issue convertible bonds, debt instruments with detachable warrants and participating debentures. Since January 1 2000 life insurance companies are, subject to certain conditions, entitled to distribute dividends to their shareholders. However, this new rule only applies to life insurance companies licensed after December 31 1999 and to those existing life insurance companies that have converted their businesses to dividend-paying businesses.
An existing life insurance company that decides to convert to a dividend-paying company must change its articles of association, which will require the approval of a certain percentage of the policyholders. Further, the company must distribute, or at least allocate, its consolidation fund (ie, earnings from earlier financial years, and other policyholder surplus within the company) to the policyholders. Finally, in addition to these requirements, the SFSA must also consent to the conversion.
Insurance companies domiciled within the EEA with branches or general agencies in Sweden, or which provide cross-border services in Sweden, are subject to supervision from their home state but are still liable to provide the SFSA with certain information, although not on a continuous basis.
The fundamental rule regarding Swedish agencies and branches of undertakings domiciled outside the EEA is that the entire activity in Sweden is to be supervised by the SFSA. However, if the insurer has established an agency or a branch in another EEA member state the supervision may, after application from the insurer, be trusted to the competent authority in that other EEA member state.
Any marketing of insurance products undertaken in Sweden will be subject to the provisions of the Swedish Marketing Practices Act 1995. The act applies to activities aiming to further the sale of any product or service in Sweden, including insurance products. The act also applies to the distribution of brochures and other marketing materials.
The fundamental provision of the act provides that marketing shall comply with good commercial standards and shall also be fair and reasonable towards the persons at whom the marketing is directed. All marketing shall be designed and presented so that it is apparent that it is marketing, and it must be apparent who is responsible for it. The person engaged in marketing may not use statements or other descriptions that are or may be misleading.
A life insurance company and a non-life insurance company issuing consumer insurance policies must provide the policyholder with extensive information about the policy. Such information should be provided in the Swedish language. However, the information may be provided in any other language if the policyholder so desires. The information must be provided in writing or any other form that gives the policyholder permanent access to the information (eg, via the Internet). Certain information must be given before the insurance agreement is entered into, while other information must be provided during the policy period.
The only codified law regarding conflicts of law for insurance contracts comes from the EEA Agreement and only applies to policies with a connection to more than one EEA member state. As regards non-life insurance, the parties to 'large risk' policies have complete freedom of choice of contract law. However, there is no such freedom as regards 'mass risk' policies: the applicable law is generally that of the EEA state where the risk is located.
As regards life insurance contracts, the applicable law is usually determined on the basis of where within the EEA the policyholder's residence or establishment is located.
For those insurances contract that are not covered by the act mentioned above, it is generally advocated that the parties are free to choose the applicable law for an insurance contract and that, in the absence of such agreement, the choice of law shall be settled in accordance with an individual method. In case of doubt, preference shall be given to the law in the state where the permanent establishment through which the insurer has entered into the insurance contract is located.
A Swedish permanent establishment of a foreign company will generally be taxed according to the same principles as domestic companies. Swedish tax treaties with other states normally contain a definition of 'permanent establishment' that is similar to that laid down in the Organization for Economic Cooperation and Development model tax treaty.
The ordinary corporation tax rate of 28% also applies to financial institutions. However, the following additional tax regulations apply to insurance companies.
Swedish Insurance Companies
A Swedish non-life insurance company is taxed on its net profit. Funds allocated to technical reserves are usually fully deductible in the computation of the company's net income. The company is also entitled to allocate part of its profits to a specific untaxed reserve, the contingency reserve in accordance with SFSA guidelines.
Swedish life insurance companies are primarily subject to a specific 'yield tax', which is determined by applying the ordinary corporation tax rate on a notional yield corresponding to the government loan interest rate on the difference between the company's assets and liabilities at the beginning of the financial year.
Foreign Insurance Companies
A foreign non-life insurance company conducting business in Sweden through a permanent establishment (ie, a branch or an agency) will also be taxed at the ordinary corporation tax rate of 28%. The taxable income is assessed either in the same way as for Swedish non-life insurance companies.
Foreign life insurance companies conducting business in Sweden are subject to yield tax in accordance with the same principles as Swedish life insurance companies. However, only assets and liabilities attributable to the Swedish business shall be included in the computation.
It is possible to conduct all kinds of financial services within the same Swedish financial group. All major Swedish bank groups and several Swedish insurance groups carry on bank, securities brokerage, insurance business etc. Swedish financial groups often include mutual fund companies (ie, companies that have been granted a licence to manage mutual funds). The different financial groups are trying to become full service distributors of financial products to the customers.
Banking, securities brokerage and insurance are governed by different regulations but supervised by the same authority, the SFSA. The establishment and acquisition of a Swedish financial institution is subject to a permit from the SFSA.
Use of the Internet is growing in the Swedish financial sector, where companies are in a phase of active product development. Self-service via the Internet has become a key area. Since the start of Internet banking in Sweden in 1996 more than 4.6 million private customers and more than 470 companies have an Internet connection to a bank. Further, self-services involving trading in shares and other securities by private customers are expanding. In 2000 nearly 500,000 customers were estimated to be able to trade shares online.
The Swedish insurance companies are also active in marketing on the Internet. They are marketing their own brands and a number of insurance products and it is possible to take out both life and non-life insurance policies online.
The Swedish Insurance Contract Act
The Swedish Insurance Contract Act dates back to 1927 and is in many respects not adapted to the current conditions of the insurance market. The applicability of the act is also limited and has been partly overtaken by separate legislative solutions for the most urgent demands, such as the Consumer Insurance Act and various regulations regarding items such as third-party motor insurance.
A proposed new Insurance Contract Act has been presented and is expected to enter into force on July 1 2005. This new act will replace both the Insurance Contract Act and the Consumer Insurance Contract Act. However, the government have not presented the bill yet and the Swedish Insurance Federation has criticized the proposal arguing that it is not up to date with recent developments in the insurance market.
In June 1997 a committee appointed by the Swedish government presented a report proposing a new brokerage act. The committee proposes that it shall only be possible for a Swedish limited liability company (and not for individuals or branches of foreign legal entities) to carry out broker business from a permanent establishment in Sweden.
However, as already mentioned the European Parliament and Council has now adopted a Directive on Insurance Brokers. The Directive has a dual purpose: to make it easier for insurance brokers to avail themselves of freedom of establishment and to allow the freedom to provide services while guaranteeing a high level of protection for customer interests.
The Directive establishes a system of registration for all insurance or reinsurance brokers based on the following professional requirements:
- possession of necessary general, commercial and professional knowledge and ability;
- being of good repute;
- possession of professional indemnity insurance or any other comparable guarantee against liability arising out of professional negligence; and
- in the case of insurance brokers who handle customers' money, sufficient financial capacity.
On the basis of their registration in the home state, insurance or reinsurance brokers will be able to do business in other member states by way of the freedom to provide services or by establishing a branch.
Sweden will have to amend the existing brokerage act in several ways regarding registration requirements in relation to reinsurance brokers and the demands on their financial capacity prescribed in the proposal.
The Insurance Business Act
A government committee presented in September 2003 a report proposing a new Swedish solvency system for insurance companies.
The changes proposed to the Swedish Insurance Business Act aim to strengthen policyholder protection by increasing transparency and enhancing incentives for insurance undertakings to identify, estimate and mitigate their risks. Policyholder protection will be augmented by regulations, in order to ensure that the risks involved in insurance undertakings are more clearly reflected in the demands made of these enterprises. The disclosure of a realistic financial position will also improve the platform for supervision and enhance market discipline.
The proposal conforms to international developments in the field, most importantly the ongoing Solvency 2 project (a corresponding reform of regulation in the European Union). Changes are also required in the regulation of undertakings at national level and these are also being made - in parallel with the Solvency 2 project - in other EU member states. The proposal is compatible with the main principles of the Solvency 2 project as well as current EU directives, and should be regarded as a natural transition from the existing regulation toward the implementation of the new EU directives in Sweden.
The core of the proposal consists of three independent components which must be considered together:
- realistic valuation of insurance liabilities (technical provisions);
- amended asset restrictions and valuation of assets covering the technical provisions; and
- assessment of risk expressed as a safety margin.
The report is expected to lead to changes of the relevant legislation during 2006.
In December 2003 the ministry of Finance presented a memorandum proposing changes in the Insurance Business Act. Even these changes aim to strengthen the rights of policyholders in life insurance companies. The memorandum is a result of several events that have occurred on the Swedish insurance market during the last year. Conflict of interest actions taken by several companies in the insurance sector have started a public discussion regarding the situation of policyholder rights in life insurance companies.
The core of the proposal consists of different components:
- The independence of the board of directors in life insurance companies shall be strengthen, disqualification rules shall be wider and the policyholders role within the companies shall be clarified.
- The life insurance companies shall be obliged to issue internal guidelines regarding conflict of interest, the investment guidelines shall cover all assets and the possibilities for SFSA to issue different kind of sanctions shall be increased.
- The new act regarding financial advice to consumer shall also cover life insurance products and the National Board of Consumer Complaints shall in the future deal with life insurance cases.
The memorandum is expected to lead to changes of the relevant legislation as of 1 July 2004.
Furthermore, the government appointed a committee during 2003 to review some of the most important rules in the existing Insurance Business Act. The committee shall propose a new insurance business act. The guiding principles for the committee are the following:
- The new act shall exclude or minimize any conflict of interest between shareholders and life policyholders.
- The new act shall contain corporate governance rules that aim to reduce the risk for conflict of interest.
The report shall also contain a proposal for implementation of the EU-Directive regarding institutions for occupational retirements provision.
The committee is to present its first report in September 2004 and its final report in August 2005.
In September 2003 the European Court of Justice (ECJ) delivered a preliminary ruling regarding the Swedish tax rules relating to insurance contracts, which distinguish between pension insurance and endowment insurance and apply a different tax regime to each.
The ECJ stated that the provisions on tax deductions for premiums paid under an occupational pension policy, which require the insurance company to be established in Sweden, are not compatible with the rules on freedom to provide services within the European Union (Article 49 of the EC Treaty).
The ECJ found that the Swedish tax regime may have had a deterrent effect on Swedish employers that want to obtain occupational pension insurance outside of Sweden, as well as on insurance companies that want to offer their occupational insurance policies in Sweden. The ECJ thus concluded that the provisions in the Income Tax Act on tax deductions for premiums paid under a pension policy are not compatible with the rules on freedom to provide services within the European Union.
The immediate consequence of the ECJ's preliminary ruling is that an insurance policy issued by an insurance company established in another EU member state, or in a country which has adopted the EEA Agreement, may not be treated differently from a policy taken out in Sweden. Premiums paid by an employer under such a policy are therefore deductible, under the same conditions. The ruling also implies that the corresponding provisions for individuals conflict with the EC Treaty on the same grounds.
The ECJ ruling does not contain any statement regarding special yield tax. However, it is clear that the rules on this tax also involve a prohibited discrimination under the EC Treaty.
The Ministry of Finance has not yet proposed changes to bring the Swedish rules into line with the EC Treaty. It is currently investigating the special yield tax on pension.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.