On September 21, 2021, the ICA accepted and made binding the commitments offered by the Italian National Association of Insurance Companies (the Associazione Nazionale fra le Imprese Assicuratrici or “ANIA”) regarding the implementation of its “anti-fraud project” in life and non-life insurance (the “Project”).
In November 2020, the ICA launched an investigation into the Project, following its notification by ANIA to the ICA, to verify whether it complied with Article 101 TFEU. The Project involves the creation of databases and the development of common algorithms to establish fraud risk indicators that insurance companies may use in both the underwriting and compensation phases. In particular, the Project includes setting up: (i) a platform for the exchange of information on fraudulent activities, which allows information to be gathered on the trends observed by insurance companies during their anti-fraud activities, with the aim of pooling data on the most frequent fraud events (the “Platform”); and (ii) a portal providing insurance companies with useful information to understand if claims they are about to settle are at risk of fraud (the “Portal”).
Despite acknowledging the cost that fraud may cause to the industry and to policyholders, the ICA asserted that the Project could raise certain competitive concerns, which were assessed during the proceedings in order to find solutions in line with the principles of competition law.
In the ICA’s view, the Project, as originally notified, posed three main concerns. In particular, since the Project was developed by an association representing the interests of the Italian insurance industry, there were insufficient guarantees of impartiality to ensure that the fraud detection activity, despite being worthy of support, was actually carried out for the benefit of all stakeholders.
Moreover, the ICA considered whether and to what extent the exchange of information inherent in the Project and beneficial to its success could lead to an artificial increase in transparency in the affected markets, thereby facilitating collusion among competitors.
Furthermore, according to the ICA, the development of common algorithms and the sharing of large amounts of data could influence and standardize company choices at important stages of the insurance business.
On March 18, 2021, ANIA submitted a proposal for commitments for market testing. According to ANIA, these commitments would eliminate the ICA’s concerns, since the Project would be significantly restructured compared to its first version. Moreover, ANIA asserted that approving the commitments would enable it to launch a Project that would have beneficial effects for the entire market, primarily for consumers.
Later, in June, following the market test reviews and comments from the National Association of Insurance Agents (the Sindacato Nazionale degli Agenti di Assicurazioni or the SNA), the Italian Data Protection Authority and the Institute for the Supervision of Insurance (the Istituto per la vigilanza sulle assicurazioni or IVASS), ANIA presented a consolidated version of its commitments.
The relevant markets
In its decision, the ICA pointed out that, given the scope of the Project, the product markets are the markets for the production and distribution of life and non-life insurance.
According to the ICA, from a geographical point of view, the markets concerned are national in scope, due to the fact that the premiums that policyholders must pay for the insurance services requested are determined by suppliers at the national level. In contrast, the markets for the distribution of insurance products are local or provincial.
Following various amendments, ANIA submitted to the ICA a proposal for eight commitments, which the ICA found suitable to remedy the preliminary antitrust concerns.
In particular, ANIA undertook to guarantee access to the Platform and the Portal to all interested insurance companies, regardless of their membership of ANIA. It also committed to allow the use of the Portal exclusively in relation to the compensation phase, and not also – as originally envisaged – to the underwriting phase. This commitment will be applicable until the moment when the use of databases in the underwriting phase will start being allowed.
ANIA also committed to adopting regulations for the use of the Portal, which, in addition to clarifying the possibility for companies not associated with ANIA to adhere to the Project, will, among other things: (i) clarify the purpose for which access to the database is allowed, namely, to assess the fraud risk of individual claims, in order to proceed with further anti-fraud investigations; (ii) provide the list of entities entitled to consult the database (e.g. the sector authorities and the police); and (iii) provide the list of obligations that users are required to comply with.
In addition, ANIA undertook to define in advance and promptly communicate to the ICA input data that is considered necessary to ensure the operation of the Portal.
ANIA also undertook to develop so-called “expert rules”, which are the parameters drawn from experience in the sector and on the basis of which the possible anomalous character of a given claim event is assessed (by means of the Expert Index), in particular, by considering elements such as: the characteristics of the insured asset; the date of occurrence of the claim with respect to the coverage period; and network analysis. Furthermore, for the purposes of defining the so-called Anomaly Index, ANIA undertook not to use a self-learning algorithm (i.e. algorithms capable of learning from the outcome of previously processed information). Moreover, ANIA undertook to adopt all the necessary security measures to ensure secure that access to the Portal is limited to those entitled and to prevent the improper use of the database.
Finally, ANIA undertook to set up a committee which any policyholders or other interested parties complaining of problems relating to the use of the Portal by the company responsible for handling the claim, can contact.
 ICA, Decision of September 21, 2021, No. 29826, Case I844, Progetto antifrode ANIA.
 ICA, Decision of November 3, 2020, No. 28435, Case I844, Progetto antifrode ANIA.