Disputed issues of regulation of bankruptcy of insurance companies in Serbia and alignment with the Directive 2001/17/EC


The adoption of the new Act on Bankruptcy and Liquidation of Banks and Insurance Companies of Serbia has not led to significant changes in the regulation of the bankruptcy of insurance companies. As before, again raises the question why the same Act regulates bankruptcy and liquidation of banks and insurance companies. Banks and insurance companies are classified as the financial institutions, that are by their status, type of activity different from other subjects. However, we must distinguish betweenbanks and insurance companies, although both can beconditionallydefined asfinancialentities. It is also not clear the role of the Agency for Deposit Insurance in the bankruptcy proceeding of insurance companies, and the legislation that regulates the said Agency, doesn’t regulate closer that role. The paper raises other issues related to the regulation of this area. This also applies to the harmonization of national rules on the bankruptcy of insurance companies with Directive 2001/17/EC of the European Parliament and of the Council on the reorganisation and winding-up of insurance undertakings. This Directive regulates the insurance claims of creditors and the treatment of these creditors, authorisations of the administrator in the reorganization proceeding and liquidator in the winding-up proceeding, etc. Also, this Directive regulates the status of foreign decisions of the competent authorities in the home member state.The paper explains the notions of reorganization and liquidation (winding-up), which uses the Directive, which have a different meaning in our legislation. The paper points out that the main objective of the Directive is unification of rules in this area. However, this is limited unification, because the rules of domestic country regulates the proceedings of reorganization or liquidation, for each specific phase of those proceedings. Finally, the author defines several proposals for future different regulation of this area, which, in his opinion, it is necessary for the functioning of the insurance system in our country. The bankruptcy proceeding of the insurance companies is very complex and this topic must be regulated by separately Act. Also, the legislator must take into a consideration about the specifics of the activity of the insurance, the status of the insurance companies and the different types of the insurance. Besides that, very important is the making difference of the subjects who doing the activities of the insurance from the subjects who doing some activities which are connecting with the insurance. These activities are the representation, the agency, the services in the insurance, etc.