Introduction

The Financial Services (Insurance Companies) Act provides the legal framework for the authorisation and supervision of insurance companies carrying on insurance business in or from within Gibraltar either as a Gibraltar incorporated legal entity, as a branch of a non-EEA insurer or under the EEA freedom of services provisions.

Provisions to obtain information

The powers to seek and obtain “restricted information” relating to "relevant persons" are vested in the Commission. “Information” is not restricted information if:

it has been made available to the public from other sources;
it is information in the form of a summary or is information so framed as not to enable information relating to any particular persons to be ascertained from it.

The definition of relevant person under the Financial Services (Insurance Companies) Act is wide, namely;

any Gibraltar, EEA or non-EEA insurer;
any controller, manager, chief executive, general representative, agent or employee of such an insurer

Section 98 of the Financial Services (Insurance Companies) Act permits the Commission or a person authorised by it to require a licensed insurer to furnish it with information about specific matters. This applies to any person who is or has been a controller, officer, agent or employee of a Gibraltar or non-EEA insurer and also any parent undertaking or subsidiary undertaking of the insurer, or a subsidiary undertaking of a parent undertaking or a parent undertaking of a subsidiary undertaking.

It shall be the duty of any person referred to furnish the Commission with such information as may be required and to produce such documents as the Commission may require.

Under section 101 the Commission may appoint any suitable qualified person as an inspector to investigate the affairs of any person in Gibraltar who carried on, or is reasonably suspected of carrying on, insurance business in or from within Gibraltar, or has carried on, or is reasonably suspected of having carried on any such business. Such an inspector may question any employee of such person he has been asked to investigate, as well as any banker to or auditor, barrister or solicitor of such person and any officer, agent or employee of a company.

Assisting supervisory authorities

Schedule 16 to the Financial Services (Insurance Companies) Act deals with the restriction on the disclosure of information. In respect of the disclosure of information to other regulatory authorities the following conditions must be met:

disclosure is not precluded if it is in accordance with paragraphs 5a, 5b, 5c, or 6 of Article 16 of the third general insurance directive or articles 16(6), 16(7), 16(8) and 16(9) of the long term insurance directive.
it is made for the purpose of enabling or assisting any public or other authority to discharge any functions if disclosure is in accordance with Article 16 of the third general insurance Directive or Article 16 of the long term insurance Directive
it is made for the purpose of enabling or assisting any authority in a country or territory outside Gibraltar to exercise functions corresponding to those of the Financial Services Commission. However, if the disclosure is to an Authority in a non-EEA State, the Commission needs to be satisfied that the Authority is subject to restrictions on further disclosure.

Other Permitted Disclosures

Information may be disclosed:

with a view to the institution of criminal proceedings
with a view to the institution of disciplinary proceedings relating to the exercise of it's professional duties by an auditor or actuary
in pursuance of an EEA obligation
with a view to the institution of civil proceedings arising by virtue of the Financial Services Act if the proceedings relate to an insurance company
to appropriate legal authorities when it is obtained by virtue of sections 98, 100A, 102 or 104 of the Financial Services (Insurance Companies) Act
to a person qualified in law, accountancy, valuation or any other matter requiring professional skill and knowledge, in order to obtain advice for the purposes of the Financial Services (Insurance Companies) Act.
which is permitted or required by the Financial Services (Insurance Companies) Act or any other Act.

Restriction on Disclosure of Information

Information must not be disclosed without the consent of the person from whom that information was obtained or to whom it relates if:

It is restricted information and
it relates to the business or other affairs of a relevant person

Information is restricted information if it was obtained by the Commission for the purposes of or in the discharge of its functions under the Financial Services (Insurance Companies) Act or any rules or regulations made under the Act.

Information supplied by a Supervisory Authority

The restrictions on disclosure of information set out above apply equally to information supplied to or obtained by the Commission for the purposes of its functions under the Financial Services (Insurance Companies) Act when the source of that information is a supervisory authority in another EEA State or a person acting on the Commission’s behalf in an EEA State. Any such information obtained may not be disclosed without the consent of the person from whom it was obtained or to whom it relates. It may also be disclosed:

for the purpose of enabling the Commissioner to discharge any relevant functions or with a view to the institution of any criminal proceedings
if the supervisory authority which supplied the information consents to its disclosure and the disclosure has the consent of the person from whom it was obtained or to whom it relates.

Offence for breaching confidentiality provisions

A person who discloses any information obtained by him under the Act is guilty of an offence and is liable on summary conviction on indictment to a fine.