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Comments on the application of Article 81 of the Treaty to the insurance sector

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Comments on the draft Commission Regulation (EC) on the application of Article 81 (3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector.

The Norwegian Competition Authorities refer to the draft Commission Regulation (EC) on the application of Article 81 (3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector, published in the Official Journal C 163/7, 9.7.2002.

The Norwegian Competition Authorities have read the draft Regulation with great interest, and a written national hearing has been arranged.

General comments
The Norwegian Competition Authorities appreciate that certain categories of agreements, decisions and concerted practices in the insurance sector, to which Article 81 (1) applies, may be beneficial and therefore exempted. The Norwegian Competition Authorities have therefore been positive to the existing Regulation, and the entry into force of a new block exemption when the existing Regulation expires is welcomed. 
 
According to the draft Regulation, it is intended to ensure effective protection of competition and providing legal security for undertakings. The Norwegian Competition Authorities agree on moving away from the approach of listing exempted clauses, and rather place greater emphasis on defining categories of agreements that are exempted up to a certain level of market power, and on specifying the restrictions or clauses that are not to be contained in such agreements. Nevertheless, it is the view of the Norwegian Competition Authorities that the draft Regulation still is of a relatively complicated nature, and that it might be difficult to apply for undertakings in some cases. In order to ensure effective protection of competition and of providing adequate legal certainty for undertakings, it is important that the block exemption is understandable and easy to apply for undertakings and national competition authorities.
 
The Norwegian Competition Authorities therefore suggest that the Regulation is supplemented by guidelines. This would assist the undertakings and national competition authorities in applying the Regulation. It would also contribute to a uniform application and interpretation of the block exemption within the European Economic Area.

Indicative risk premiums
The draft Regulation limits the benefit of the block exemption to exchanges of statistics and joint calculation of indicative pure premiums to situations where the statistics used are grouped in the narrowest possible categories that are compatible with the inclusion in each category of a meaningful statistical sample. As long as the premiums are indicative, the Norwegian Competition Authorities do in principle support this view. The Norwegian Competition Authorities find, however, the practical meaning of the condition that the pure premiums must be broken down into as much detail as possible, while leaving a statistically useful sample, somewhat unclear. In order to ensure the effectiveness of such a condition, it would be beneficial to have this exemplified, i.e. in guidelines. This could make the Regulation easier applicable for both national authorities and undertakings.
 
The Norwegian Competition Authorities observe that statistics on risk premiums must be made available on reasonable and non-discriminatory terms to any insurance undertaking which requests access to them, and that this in principle may reduce the barriers to entry on the market. 

Standard policy conditions
In the revised draft Regulation, standard policy conditions are only exempted if they are agreed in conjunction with the joint calculation of pure premiums and joint studies related to risk premiums, and only in so far they are both necessary and exclusively used for such calculations or studies. The existing Regulation has no condition regarding the necessity of such standard policy conditions. The revised draft will therefore be more restrictive in this respect. The Norwegian Competition A

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