GIM10050 | Non-resident insurers: regulatory background: EEA insurers: meaning of ‘branch’ and ‘provision of services’

Article 3 of the EC Second Non-Life Directive provides that for the purposes of the First and Second Non-Life Directives any permanent presence of an undertaking in the territory of a Member State shall be treated in the same way as an agency or branch. This is the case even if that presence does not take the form of a branch or agency, but consists merely of an office managed by the undertaking’s own staff or of a person who is independent but has permanent authority to act for the undertaking as an agency would. In Kvaerner plc v Staatssecretaris van Financiën [2001] STC 1007, the ECJ held that:

“Article 3 of the Directive must therefore be interpreted as extending the concept of ‘agency or branch’ in art 2(c) of the Directive so that it applies in the broadest sense, whatever the formal term used.’’

If there is no branch in this wide sense, which is broadly equivalent to a ‘permanent establishment’ under international tax law (GIM10110), then any EEA insurer effecting contracts with UK residents or establishments will be ‘providing services’.