Month: November 2020

Brexit and the Insurance Industry in Cyprus

Posted on | by Paschalis Paschali

In light of the UK withdrawal from the EU and in the absence of an agreement that allows insurers and brokers to continue to service clients and risks located in EU countries, UK insurance firms shall no longer have passporting rights to European markets including Cyprus.

Passporting rights allow firms registered in the EEA to do business in other EEA states without additional authorisation being given from each country. Without passporting rights, UK intermediaries may not be permitted to place certain European risks with insurers. Many insurers have been restructuring their business, planning the relocation or opening of new branches in EU27 member locations including Cyprus. This will allow them to continue to operate within the EU27 following Brexit as well as in other jurisdictions where the EU has bilateral trade or services agreements.

The European Insurance and Occupational Pensions Authority (“EIOPA”) has published a number of recommendations intended to facilitate an orderly transition of UK insurance business in EU states post Brexit (the “Recommendations”). The Recommendations set out a number of principles that will apply to in respect of the conduct of UK insurance firms which essentially prohibit new business (including renewals) but allows ongoing administration of insurance contracts which were incepted before 31 December 2020 until such time they expire or are terminated on the basis of Recommendation 6 (which effectively states that the location of the risk remains in the UK (on the assumption that the risk was first underwritten by a UK insurance entity).

In response to EIOPA Recommendations the Insurance Companies Control Office (the “Cyprus Insurances Regulator”) has indicated that it intends to follow and apply all the Recommendations and that they will be issuing relevant orders for business written in Cyprus by UK companies with respect to each Recommendations, before the UK withdrawal date.

Whilst, the Cyprus Regulator has yet to issue relevant orders in connection to the Recommendations, Law 19(I)/2020 was published and is effective on the 6th March 2020.  The said law, by amending national relevant law, aims to regulate the services offered by British insurance companies in Cyprus and essentially, the run-off of UK insurance and non-insurance business which was sold in Cyprus to customers before 31st December 2020. The new legislation grants to insurance companies and insurance agents offering insurance products from the United Kingdom to the Republic of Cyprus a two-year grace period by which they may continue managing the affected portfolios as follows:

  • Insurance products already in issued shall continue to have legal effect without requiring any amendment increasing the overall cost,
  • British Insurance Companies in Cyprus can settle any claims arising during the grace period
  • British Insurance Companies in Cyprus can continue to collect premiums settle any undertaken liabilities in a business as usual way.

For the affected insurance companies to continue offering services after the 2-year grace period a relevant license from the Cyprus Insurances Regulator must be obtained.

It is clear from the above that, UK intermediaries and entities which intend to continue or commence distribution activities to EU27 policyholders and for EU27 risks after the UK’s withdrawal are established and registered in the EU27 in line with the relevant provisions of the IDD. Recommendation 9 requires that intermediaries, which are legal persons, demonstrate adequate corporate substance, proportionate to the nature, scale and complexity of their business.  Intermediaries should not display the characteristics of an empty shell.

Our firm provides legal advice and services with respect to the re-domiciliation or new formation of a Cyprus Intermediary (broker, agent etc.) pursuant to the provisions of applicable Cyprus laws which essentially adhere to and adopt the provisions of Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (the “IDD”).

Our firm also advises with respect to Cyprus law matters that may arise with respect to the business of a UK firm including in the context of a UK firm executing an insurance business transfer to an EU group entity to ensure continuity of service and to eliminate any potential detriment to those customers, i.e. transferring customers to whom policies were sold under their freedom of services passporting permissions. Such transfer can resolve the issue of having EEA domiciled customers (whose policies were sold under the freedom of services passporting permissions) by transferring them to EU subsidiaries, however, UK insurers may still have customers who have been sold a product or contract in the UK, but who relocate to an EEA country. This will continue to occur post Brexit and it is expected that the Cyprus Insurances Regulator will also address this issue in due course.

Animal-Based VS Plant-Based Products – A Legal Analysis

Posted on | by Paschalis Paschali

I. Introduction

Concerns in the European Community were raised by the European Parliament’s (EU) decision of 23 October 2020, rejecting the European breeders’ demand for a ban on the use of the terms “burger”, “steak” and “sausage” in products which consist exclusively of plant ingredients. This decision could be described as unpredictable given the position of the Court of Justice of the European Union (CJEU) on a similar issue in Case 422/16 TofuTown[i].

Before reviewing the recent decision of the European Parliament, it would be useful to briefly analyze the position of the CJEU in the Case 422/16 TofuTown[ii].

II) Decision in the Case 422/16 TofuTown on the Use of Dairy Names with Purely Plant-based Products

The CJEU in a reference for a preliminary ruling of the German tier regional court of Trier, had to decide whether the practice of a company using the term “milk” and other similar terms referring to dairy products, such as “cream”, “butter”, “cheese”, in order to name purely plant products is allowed[iii]. The CJEU approached this question by invoking Article 78 and the relevant Annexes to Regulation 1308/2013[iv].

Pursuant to Part III of Annex VII to the Regulation 1308/2013, “milk” means exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom. Similarly, “dairy products” means products derived exclusively from milk and may be added to substances necessary for their manufacture, provided that such substances are not used for the purpose of wholly or partially replacing any of the constituents of milk.

The CJEU, applying a literal interpretation of the Regulation 1308/2013, ruled that a company may not label purely plant products in their marketing or advertising as “milk”, “cream”, “butter”, “cheese” “Yogurt”, even if those terms are expanded upon by clarifying or descriptive terms indicating the plant-based origin of the products concerned[v]. Special reference was also made to the Decision 2010/791 of the European Commission, which established a list of certain products of plant origin which may exceptionally include in their names, words relating to milk or milk products[vi]. This list includes names such as “coconut milk”, “horse-radish cream”, “cocoa butter”. Therefore, based on the CJEU decision, TofuTown was banned from using names such as “tofu butter” and “veggie cheese” and “vegetable cheese” to describe its plant products.

Based on this approach, the term “soya milk” cannot be used, as soy is a purely plant product, while milk based on the regulation, can only be used for products made from animals. Respectively, the use of terms such as “almond milk” and “oat milk” are not permitted. Although almond milk and oat milk are not on the list of exceptions, they tend to be marketed as “almond drink” and “oat drink”[vii] as the use of term “drink” instead of the term “milk” is allowed.

III) EU rejects proposal to ban labeling plant-based meals as veggie ‘burgers’

At the initiative of the European Farmers’ Union, in October 2020 a campaign called “this is not a steak” was launched in order to achieve a European level ban on the use of the terms “burger”, “steak” and “sausage” when they consist of vegetable ingredients. A typical example is the “veggie burger” or “veggie sausages”, which are considered as alternatives to meat. The main arguments of farmers are the confusion that can be caused by the use of such names to consumers who want to buy animal-based burgers, steaks, or sausages, as well as the economic damage to the agricultural sector. The initiative and expediency for this campaign stems from the significant increase in the consumption of products that are considered as alternatives to meat and dairy products, a fact of particular concern for professionals involved in the livestock sector. However, the European Parliament rejected this position, voting against the proposal to ban the naming of plant products with names such as “burger”, “steak” and “sausage”.

IV) Critical Review

It should be noted that the finding in the judgment of the CJEU in the referred question and the outcome in the recent decision of the European Parliament are conflicting, despite the fact that similar issues are raised in both cases. In particular, the CJEU had the obligation to formulate its judgment by applying the requirements of Regulation 1308/2013 to the facts that framed the reference for a preliminary ruling. The wording of both Article 78 and Part III of Annex VII to the above Regulation is clear. Α different approach from the one adopted would be tantamount to judicial activism as the Regulation 1308/2013 is the political will of the EU Member States on how they want to regulate certain issues in a particular sector of the economy. The ruling of the CJEU Union on the referred question is therefore justified.

On the contrary, the decision of the European Parliament can be characterized as incompatible with the previous EU policy on the common agricultural policy, taking into account the Regulation 1308/2013. The decision created a disparity in the way certain products are regulated in the same sector of the economy, the agricultural sector.

Therefore, taking into account, inter alia, the changes in the dietary habits of European consumers the EU should act immediately at institutional level in order to eliminate the current situation of disparity. In particular, what is proposed is the extension of the Decision 2010/791[viii] by including more products, in order to allow the use of terms such as “soya milk”, “almond milk”, “soy yoghurt”, “tofu butter”, ” rice cream “, in order to comply with the recent decision of the European Parliament. Alternatively, it is proposed to adopt a new piece of legislation through which the use of the above-mentioned descriptions will be regulated uniformly and comprehensively for both cases analyzed. It seems that the debate on the permissibility of the use or not of the above-mentioned names is not yet over.

[i] C-422/16,Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (2017) ECLI: EU: C: 2017: 458.

[ii] C-422/16,Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (2017) ECLI: EU: C: 2017: 458.

[iii] C-422/16,Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (2017) ECLI: EU: C: 2017: 458, para 20.

[iv] Regulation (EU) no. Regulation (EC) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organization of the market in agricultural products and repealing Regulations (EEC) No 2454/93 (EEC) No 922/72 (EC) No 234/79, 1037/2001 and (EC) no. Council Regulation (EC) No 1234/2007 (2013) OJ L 347.

[v] C-422/16,Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (2017) ECLI: EU: C: 2017: 458.

[vi] C-422/16,Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (2017) ECLI: EU: C: 2017: 458, paras 9, 10 and 11.

[vii] B. Bolton, ‘Dairy’s Monopoly on Words: The Historical Context and Implications of the TofuTown Decision’ (2017) 12 Eur Food & Feed L Rev 422.

[viii] 2010/791/EU: Commission Decision of 20 December 2010 listing the products referred to in the second subparagraph of point III(1) of Annex XII to Council Regulation (EC) No 1234/2007 (notified under document C(2010) 8434), OJ L 336.