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Procedia Economics and Finance 3 (2012) 843 – 851

Emerging Markets Queries in Finance and Business

Capital in Insurance Companies efficient creditor protection or

outdated concept?
Antal Raluca Medaa,*, b

a
080, Romania
b
Master Student, Master in European and National -Bol

Abstract

Capital maintenance rules have received great attention in European commercial law forums as of late. The basic concept is
that the restrictions imposed by the rules are directed at the activity of the insurance company, of course with reference to
the capital invested by the shareholders. The exact manifestation of these rules depends on the specific national element,
however it is possible to underline two basic concepts of capital maintenance: the creation of a minimum limit of capital
and the restriction of asset transfer to shareholders where net income is well below the initial invested social capital. In
insurance companies the minimum capital limit must be generated in a way that protects the interests of the insured.
Through the present article we have tried to present, through a comparative analysis of the risks that creditors of insurance
companies face, the capital maintenance protection mechanism available to them, underlining in the end its functionality
and efficiency.

© 2012 The©Authors.
2012 Published
Published byby Elsevier
Elsevier Ltd. Ltd. Selection and peer-review under responsibility of the Emerging
Markets Queries in Finance and
Selection and peer review under responsibility of Business
Emerging localQueries
Markets organization
in Finance and Business local organization.

Keywords: creditor; social capital; insurance companies; protection

* Corresponding author..
E-mail address: [email protected]

2212-6716 © 2012 The Authors. Published by Elsevier Ltd.

Selection and peer review under responsibility of Emerging Markets Queries in Finance and Business local organization.
doi:10.1016/S2212-5671(12)00239-0
844 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851

1. Introduction

Creditor protection in commercial companies in general and insurance companies in particular, has been a
topic of great interest in the context of commercial transactions nationally and internationally in the light of
new European case law. This paper concerns only the situation of insurance companies in bonis, so the
spectrum of protection method analyzed will focus only on those who are not related to insolvency.
The foreign doctrine widely discussed concept of capital rules as a means of protection of creditors. Holger
Fleischer 2006 enacts, for example, an analysis of capital rules and regulations different capital components.
John Armour 2006 analyzes capital rules, considering that the balance tilts towards inefficiency and points
towards the possible pressure points faced by these rules in the European context. Jennifer Payne 2008,
analyzing the Companies Act 2006, clearly underlining the need to reform the outdated concept of the
mechanism of capital rules that no longer find their place in society.
Both Wolfgang Schon 2006 and Jonathan Rickford 2006 discuss capital maintenance and creditor protection
in terms of capital distribution, considering the new option available in this branch, the solvency test.
Gerbhard Wagner 2006in his analyzes discusses the methods of distribution of dividends and the penalties
attached to it by law fraudulent transfers. Peter O. Mullbert 2006, in his article, tackles the issue of capital rules
functionality in the context of a generalized structure of creditor protection.
Bohumil Havel 2005 analyzes creditor protection rules in the Czech capital, showing how the phenomenon
manifests itself as "forum shopping" in this context.
Hanno Merkt 2004 takes a German perspective analysis of capital rules, showing how and to what extent the
European context struck and affected creditor protection law in Germany.
John Armour, Priya P. Lele, and Mathias M. Siems Viviana Mollica 2006 made a very competent analysis
by the creditor protection index, determining interaction and functionality of protection methods, establishing
safeguards for creditors in England, USA, Germany, France and India.
If the academic discourse until now was limited to articles, books must be mentioned in this context.
Thomas Bachner 2009 made a comparative analysis of creditor protection between Britain and Germany both
in terms of pre-insolvency mechanisms and in terms of insolvency proceedings. Comprehensive analysis of
commercial and company law such as the ones by S. Mayson, French D. 2010-2011 and Paul Davies 2003 have
discussed capital rules as a means to protect creditors, but in a more generalized manner.
This is the case in Romania where doctrine focused on a more relevant presentation of the rules of capital
without discussing their functionality as creditor protection methods. We mention in this respect the work of
2008, O. Capatana 1996 and Bacanu I 1996. Another highly relevant reference is the work of
George Piperea, David Sorin, Catalin Marian Predoiu, Carpenaru D. Stanciu 2009.

2. Considerations on creditors and risks they are subject to the insurance companies

2.1. Creditors insurance companies

In Romania, insurance activities are organized as public limited companies, mutual companies, branches of
foreign insurers, constituted as legal Romanian entities and branches of insurers, juridical personas, under a
permit issued by the Insurance Supervisory Commission, the cumulative fulfillment of conditions stipulated by
law being an imperative requirement Moldovan, 2002.
Insurance companies that are established and operating in accordance with legislation, operate by providing
mediation, negotiation, contracts of insurance and reinsurance premium income, elimination of damage, decline
and recovery activities, and equity investment or enjoyment.
Insurance companies are commercial companies who must organize and run their own accounting in
accordance with the Accounting Law no. 82/1991, republished, with subsequent amendments. Accounting rules
 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851 845

and regulations for insurance units - risk are developed and issued by National Bank, the Insurance Supervisory
Commission, with the Ministry of Finance. Insurance accounting is also organized according to specific
accounting regulations harmonized with European directives the insurance and international accounting
standards approved by the Ministry of Finance and Insurance Supervisory Commission nr. 2328/2390/2001.
In an attempt to provide creditor protection in insurance companies in bonis, it would be appropriate to
begin by framing the subject of our discussion. This creditor is defined as the active subject of a legal tie,
holder of a right of claim, the person or entity holding a claim on the debtor's right, who can prove his claim to
the debtor's assets, according to the law. Creditors are considered, among others, without submitting personal
statements of claim, the debtor's employees Black, 1990. In this discussion, it is necessary to touch this issue
because not all creditors have the same attributes, bargaining power or the same point of origin of creditor-
debtor relationship.
Thus creditors themselves can be divided into those voluntary and involuntary. Creditors that are volunteers
enter into a commercial contract with the company, as said, voluntarily. Most creditors will fall under this
category. However there are involuntary creditors that will be linked to company through a situation many
times without a real choice. A clear example of this is enabling the company's tortuous liability to third parties
for various reasons, including consumer protection Freedman, 2000.
However, in theory, the tendency is to create an alternative classification between creditors that can adapt
and not "non-Adjusting v. Adjusting". Here the emphasis is on the influence creditors have on debtors ex ante,
i.e. before the contract. All involuntary creditors will be non-adjusting because of unpredictable situation that
led to their report. But the some voluntary creditors may also be considered non-adjusting if they have no
actual bargaining power Bachner, 2009.
Insurance is an economic and social activity that achieves legal protection of individuals enacted for the
insured against various risks and this is done by specialized companies named the insurers. In insurance

paragraphs, we find a class of creditors created by the specific activities of insurance companies, because
through the contract of insurance, a transfer of risk from the insured to the insurer is made, upon payment by
the insured of an amount of money, a price called premium.

2.2 The risk creditors

The risks that creditors are exposed to are another component that clearly requires analysis. Each class of
creditors faces different risks. Risks that voluntary creditors are subject to fall into three dimensions: time,
cause and origin Clarke, 1977.
When establishing a contractual relationship, creditors might have to face inadequate contract terms, i.e.
those that do not reflect the risk of future non-performance in economic terms, net of contractual clause in the
present moment is greater than the nominal value. Once they have entered into the contract, they suffer the risk
of devaluation of the amount they want to recover. These risks also include the possibility that in the end of the
debtor is not willing to pay the correct amount or be unable to pay because of insolvency.
Such clauses that define the amount improperly generally occur due to a lack of real information about the
debtor. On the other hand, the creditor may not have put enough time, effort and energy in gathering this type
of information or miscalculated the risk that it may suffer, perhaps due to a continuing relationship with the
debtor formed over a long period of time. An ex post devaluation of debt, whether temporary or permanent,
could be the result of shortcomings of the company, for example, ineffective management, or unfavorable
business environment, it can take exogenous sources: an increase in the basic materials or an unexpected wages
increase Mulbert, 2002. Of course, devaluation may be due to the opportunistic activity of the management of
the insurance company, for example by enhancing its risk portfolio by taking on riskier projects.
Other causes could be Mulbert, 2006:
846 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851

reducing the company's capital because of substandard commercial activity, i.e. the company does not
respect the diligent and conscientious business man standard "weak-form opportunism";
capital distribution to shareholders either through dividends and purchase of own shares or by covert means
of economic goods exchanges between the company and its associates at a price below the market "strong-
form opportunism";
a shift towards more risky trading strategies "strong-form opportunism". This trend is amplified in the
vicinity of insolvency when the company is willing to assume greater risks in the hope of a miraculous
rescue;
payment of a debt or a loan to a shareholder when the company is in financial instability "strong-form
opportunism";
illicit confusion between goods of the company and those of the shareholders 'strong-form opportunism".
The risk must be discussed in terms of its origin, i.e. opportunistic behavior of managers and shareholders be
it "strong-form" or "weak-form". In the case of the company director, the most obvious form of opportunism
occurs when he does not comply with the standard of the diligent businessman, that is violates the duty of
loyalty to the company. Regarding shareholders, the protection of limited liability that is given by insurance
company will give them a possible push towards opportunistic activity which could take place by imposing a
distribution of dividends or by taking riskier contracts. In practice, this kind of opportunism occurs when one
partner acts as manager or decisions are made by a majority in the general meeting of shareholders Armour,
2006.
Involuntary creditors suffer to some extent the same risks as the voluntary, being subjected to the possibility
of devaluation. But the difference lies in the moment the relation based on uncalculated ties appears Davies,
2003. If voluntary creditors make a wrong decision based on poor information, the involuntary, because the
element of unexpected that is linked to their existence, will face devaluation debt only through the occurrence
of events e.g. insolvency after the relationship has been created.

3. Capital creditor protection method in insurance companies

3.1. Capital integrated in the European context

As will be noted in this analysis, the rules on capital have fallen out of favor as a viable method of
protection of creditors in common law systems, shown by a clear analysis of the British system of "capital
maintenance". However, in continental European jurisdictions, the principles on which they rely continued to
find strong support. Until very recently it was established that the differences between the different European
legal systems are based on nothing more than a specific preference for a specific form of creditor protection,
the goal being the same Fleischer, 2006. However, Directive 77/91/EEC Second Company Law Directive
allowed a certain unification of measures in this field, focusing in particular on the maintenance and alteration
of the legal capital. Although the American and British minimum capital rules are virtually nonexistent, these
rules find a bright future in the rest of the European jurisdictions.
Creditor protection through capital rules may reach different elements of company law with varying degrees
of success. But to understand the functionality of these methods in the context of commercial transactions with
foreign elements, which are now growing, the European context must be analyzed.
At the European level, the biggest change in this field was conducted by the European Court of Justice ECJ
in the cases of Centros Centros Ltd v Erhvervs- ogSelskabsstyrelsen 1999 C-212/97, Inspire Art Kamer van
Koophandel en Fabriekenvoor Amsterdam v Inspire Art Ltd 2003 C-167/01 and Überseering Überseering BV v
Nordic Construction Company Baumanagement GmbH 2002 C-208/00. By almost simultaneously decisions,
the EU Court of Justice supported the principle that an existing legal entity registered in a Member State must
be respected and allowed to function in any Member State. In Centros, the ECJ expressly established that the
 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851 847

provisions of art. 49 of the Treaty on the Functioning of the European Union TFEU may be invoked in the case
law regarding right of establishment on a secondary basis in circumstances where a company was registered in
Britain without exercising any activity there, and then intended to establish a branch in Denmark, where the
company was to realize its overall activity. According to the Court, the fact that a company chose to be
registered in a Member State on the consideration that the statutory provisions are more favorable, and then
organize their branches in other Member States which will not be in itself an abuse of the right of establishment
"pseudo foreign company ".This follows the idea that all criteria in art. 54 (1) are equally important. However,
in Centros, the ECJ used the Gebhard formula specifying that it is possible that the Member State in which the
company elsewhere registered wants to expand, can impose some limitations maybe by application of state
rules as long as they are applied in a non-discriminatory way, are justified by considerations of general interest,
are capable of achieving the intended purpose and are necessary, proportionate. However the ECJ mentioned
that this is not a rule but an exception.
In the Inspire Art decision, the company was incorporated in the UK, a country that uses the criteria of
incorporation of the real seat and wanted to register their branch in the Netherlands, the center of commercial
registration. The Netherlands considered it was necessary to apply specific Dutch rules to the foreign company,
including the introduction of a name of record indicating that the parent company was registered in another
Member State and the compliance with the minimum capital requirements of the Netherlands commercial
legislation. ECJ decided in this case that the application of domestic commercial rules to foreign companies is

of the country of incorporation. Any other trend is incompatible with European standards.
In Überseering, a Dutch company sold its majority shares to professionals in Germany but it was not re-
registered under German law, thus it was denied a legal identity in Germany and therefore not allowed to
perform construction activity in the region. ECJ ruled that this decision violates art. 49 TFEU, on the same
juridical principle as Centros. Moreover, the court said that any attempt by the Member State to block access to
any legal process or not to recognize the existence of any company registered in another Member State is
forbidden.
Analyzing these decisions we will notice that it is now possible for companies to choose their place of
registration according to existing rules in that Member State. Centros allows a company registered in a Member
State to be governed by the existing rules in that legislation. This applies to creditor protection legislation as
well. This "forum shopping" encouraged European companies to choose countries like the UK where capital
rules are permissive and the unlimited liability of shareholders is difficult to activate. Furthermore, the UK
encourages creditor protection through contractual terms created by the parties rather than a legally regulated
system as exists in Romania, France and especially Germany.
Basically, forum shopping has created a pressure on countries with tough and precisely regulated creditor
protection regimes like Germany to review its approach in this area borrowing certain elements from the British
system and therefore becoming more attractive. It was considered that the trend was towards the vision of
creditor protection established by English system. However, the ECJ has attacked the possible future
development of the trend when, in describing the Gebhard test, said that the protection of creditors may be
considered an imperative interest that could justify the restriction of the principle of freedom of establishment
presented before Johnston, 2009. So, in our analysis, if the UK is deficient in certain elements of creditor
protection, imposing stricter rules like the German or Romanian regulations could be justifiable.
Considering the above it is possible that the tendency in creditor protection is that, on the one hand, the
country with a restrictive approach like Germany will be more flexible in addressing creditor protection so as to
trigger economic development by attracting new society foreign. On the opposed side of the spectrum,
countries like the UK will have to tighten existing rules to avoid a degrees of registered companies affected by
the possible application of the Gebhard formula. It is possible that the direction will be towards a balance of the
two extremes, even perhaps to the Romanian system where mandatory provisions aimed at protection of
848 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851

creditors are counterbalanced by some flexibility in their applications through to the articles of association and
trade agreements enacted, sometimes leading to their complete circumvention.
In terms of regulations imposed by the Directive II which created rules to protect creditors through
minimum capital, both in Romania and the UK have highlighted the fact that they provide a rather low level of
protection Wagner, 2006. The Directive imposes a balance sheet test when deciding dividend distribution. But
this test does not present the financial reality of insurance companies it is calibrated to be based on previous
contributions to the ventures rather than calculating income or financial needs of companies at the time of the
decision. Secondly the rules on dividend distribution have a reduced set of circumstances which distribution is
not possible. These rules cannot prevent distribution of dividends to shareholders in other ways, such as
excessive compensation of members who are also managers of the company. The capital rules do not prevent
loss of profit in other situations, for example, unprofitable investments made by directors, managerial fraud or
unfavorable market conditions.
Implementation of rules imposed by the Directive II increases the financial costs of companies to which they
apply, either by necessity of legal advice on the conditions imposed or by the effort of battling long judicial
procedures Payne, 2008.
At European level it was argued that capital rules have no real future as a strict system of protection rules. A
solution would be to adapt it into a model with different levels of imperative rules adaptable to the needs of
society. Actually, in the current state of things, capital rules are a primitive form of regulatory technology
which generates much more cost than benefit. This is particularly the case for minimum capital rules that block
the access of entrepreneurs. Another point that is clearly suggested is that the rules on capital may even be
over-regulatory, in that on the one hand they are not suitable for all companies and on the other hand where
they apply, it is questionable whether are really useful Payne, 2008. A better way would be to use the parties
contractual terms as ex ante protection methods.
What should be underlined is that the European case law triggered by Centros started a counter-
harmonization process, the system of creditor protection is becoming more flexible. However, the application
of the Gebhard formula showed the European world that any attempt to apply a flexible regime in detriment to
the needs of the creditors will be sanctioned.
In this context, capital rules must be subject in the near future to a comprehensive process of change, if it is
to remain a valid creditor protection method.

3.2. Creditor protection through the capital of insurance companies in Romania

Since the period of preparation for the Romanian entry into the European Union, the Insurance Supervisory
Commission has mitigated efforts in order to achieve consistency with the EU acquis. In this respect particular
relevance is the amendment to Law 136/1995 on insurance and reinsurance in Romania.
Also during this period, internal control rules and regulations on management of insurers were issued and
implemented, applying two recommendations of the European Commission. Also the Law 76/2003 came into
force, which amends Law 32/2000 on insurance companies and supervision of insurers, being conducted in
accordance with the principles of supervision developed by the International Association of Insurance
Supervisors IAIS.
To harmonize national insurance legislation with the European directives and urgent intervention in cases of
insolvency, the Insurance Supervisory Commission drafted legislation based on project of normative acts:
solvency margin calculation for each category of insurance and minimum safety fund, additional supervision of
insurance companies that are part of an insurance group and adjusted solvency calculation in these cases and
regulations on financial recovery, judicial reorganization and insolvency of insurance companies.
 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851 849

Insurance regulations, conducted by the Insurance Supervisory Commission, in 2003 were concerned with:
capital limits, rules of preparation of financial statements, rules relating to investment activities of the
company; periodic verification of insurance companies.
The main purpose of capital rules is to regulate the conflict between the shareholders and creditors with a
resolution in favor of creditors. The trend in the Romanian is creating and maintaining a part of capital to
protect creditors when insolvency happens or recovery of debt is necessary.
With regard to minimum capital of public limited companies, art. 10 (2) states that unless the company is
transformed into a company of a different type, capital of the company mentioned cannot be reduced below the
legal minimum unless its value is brought to a level at least equal to the legal minimum by a determination to
raise capital at the same time as the capital reduction. Any interested person may appeal to demand dissolution
of the company if the company is in violation of these provisions. The company shall not be dissolved if up
until the final judgment of dissolution, the capital is brought to the legal minimum provided by law.
On the capital of insurance companies state that:
in 2001: the minimum of social capital was established by Law. 32/2000 on insurance companies and
insurance supervision;
in 2002:
the Order No. 6 of 23.07. 2002 was emitted to implement the Regulations on the minimum paid-up share
capital and reserve fund of the insurers published in MonitorulOficial nr.740 of 10.10.2002;
under the new legislation, the reserve fund may be updated and must not be less than: 15 billion for general
insurance business, except compulsory insurance;
legal capital of the insurance company Omniasig SA was 178,025,700 thousand lei;
in 2004;
the Order nr. 3109 in regard to the implementation of the Regulations on the minimum paid-up share capital
-up fund nr. 1243 Monitor Oficial of 23.12.2004 was drafted;
from the effective date of implementation of these rules, registered capital of insurers can be updated and
may not be less than: until 30 June 2005: 40 billion lei for general insurance business, except compulsory
insurance; until 31 December 2005: 6.5 million RON equivalent to 65 billion old lei, for general insurance
business, except compulsory insurance; until 30 June 2006: 10 million RON for general insurance business,
except compulsory insurance;
in 2005:
the Order nr. 3105 to implement the Regulations on the minimum paid-
free reserve paid-up fund in MonitorulOficial nr. 417 of 18.05.2005 was drafted.
from the effective date of implementation of these rules, registered capital of insurers updated following
values: until 31 December 2005: 5.000.000 RON, for general insurance business, except compulsory
insurance; until 30 June 2006: 8.000.000 RON for general insurance business, except compulsory insurance.
In Romania it would be advisable to abandon the rules on minimum capital. This concept is obsolete and the
minimum standard does not provide real protection. A very high minimum level in public limited companies
can deter entrepreneurs who do not have such large amounts from investing and thus stun economic growth.
In order to protect the insured, it is therefore necessary to make insurance companies establish a fund which
consists of specific values of additional resources that can be used to cover unforeseen expenses. Thus the
solvability margin and minimum solvency margin of an insurance company is calculated. This limit must be
established in such a manner that it accounts for the effects unquantifiable risks or the consequences of
underestimation or abnormal fluctuations of quantitative risk. This measure seeks to give the insurance and
inspection authorities time to rectify the situation once the risk has occurred.
Solvency of insurance companies is its ability to honor its obligations to policyholders and beneficiaries of
the contract. Solvency measurement depends above all on the valuation of assets and liabilities. The main
commitments of an insurance company can be found in technical provisions which allow the company to face
850 Antal Raluca Meda and Şumandea Simionescu Ioan / Procedia Economics and Finance 3 (2012) 843 – 851

risk and expenses attached to signed contracts. They are determined based on actuarial and statistical science.
They however cannot guarantee all assumed obligations in regard to damages and expenses.
Insurers licensed to practice general insurance are required to have an available solvency margin,
corresponding to the activity undertaken by them, at least equal to the minimum solvency margin calculated in
accordance with these rules.
In regard to emission of shares as a way of protecting creditors, there is the obligation to indicate the content
of the action and the unique registration number from which it is inferred that the issue of shares in physical
form cannot be made until the registration of the company is complete. Third parties are protected in this way,
avoiding speculation on the securities of a company whose existence is uncertain Cucu, 2007.
Romania lags behind in terms of share buy-back and the conditions for the distribution of dividends and
capital reduction. As seen above, the functional and practical tendency at European level is to create a flexible
creditor protection mechanism, one which protects fluidity and allow commercial activities of the company to
run their course in a healthy way. The main concern of all creditors is to recover the amount due and therefore
economic development is the company is the point where the interests of creditors and debtors meet. Rumania
attract the attention of foreign entrepreneurs through functional and flexible rules of capital and thus generate
economic growth.
Romania seeks to impose a system of capital rules on a concept of "one size fits all" leading to a situation
where the application of these rules in a strict and rigid manner may deter potential investors and attract
rent standard
level that are applied to companies by type of society and its real needs. By this method, companies can choose
which system you want but the directors must justify their choice in a public manner, thus creditors will know
exactly what kind o .
This system rejects the concept of creating a standard rule for each company and allows deviation from this
approach, using compulsory disclosure as a means of creditor protection considering that potential investors,
unhappy with the reasons public disclosed by companies regarding their choice of level, thus avoid dealing
with it Merkt, 2006. In Romania, this concept, applied to capital rules could find its place in legislation. But the
elements that a company can depart from and in what conditions must be clearly underlined in order to avoid
corporate fraud of the creditors' interests.

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