Transparency in Insurance Regulation and Supervisory Law of Portugal

Abstract

The use of the term ‘transparency’ in the context of insurance regulatory law only truly made its way into Portuguese legislation in 2016. In this chapter, we set ourselves the tasks of finding out whether, when employed in this context, the term has taken on a different meaning or different implications than it assumes when used in the context of insurance contract law, and of pinpointing such differences. We have found that the notion of information appears to be at the centre of all such uses of the term. All references thereto are related to the creation of general or more specific information or disclosure duties. However, in insurance contract law, a common usage of the term is focused on the nurturing of data-sharing communication between the insurer on one side and the policyholders, the insured, the beneficiaries and injured third parties on the other side, thus demanding the creation of information duties in the Hohfeldian sense where they represent the jural correlatives of individual rights. There is also a relevant performative component to most such exchanges, given that contracting parties are doing more than provide information; they are giving rise to their contracts as they communicate with one another. In insurance regulatory law, the term appears to have taken on, if not a different meaning, at least some different implications. We have found no performative element in the prescribed conducts, and the creation of disclosure duties has not entailed the creation of correlating individual rights. And the addressees of transparency demands appear to be much more diverse than they are in the context of insurance contract law: the legal system, the market, the regulators and all those regulated must all be ‘transparent’. Despite its relative novelty, transparency appears to have become an EU catchword, transparency requirements being seemingly here to stay and on the rise, if we put together all the transparency references and requirements stemming from the European Insurance and Occupational Pensions Authority (EIOPA) Regulation, the Solvency II Directive and the Insurance Distribution Directive.