Wednesday, 29 April 2015

More information duties for insurance companies - CJEU in Nationale-Nederlanden Levensverzekering Mij (C-51/13)

29 April 2015: CJEU judgment in Nationale-Nederlanden Levensverzekering Mij (C-51/13)

The Third Life Assurance Directive (92/96/EEC) is no longer binding (currently in force is Directive 2009/138/EC - Solvency II) but it was a subject of the recent proceedings at the CJEU. Since the aim of the Directive was inter alia to ensure that consumers receive clear, accurate information on the essential characteristics of the insurance products, it established various minimum provisions for insurance companies and Member States to observe (see Annex II). The question posed by the Dutch court pertained the validity of general principles of Dutch law (such as: the duty of care of the insurance company, pre-contractual good faith and requirements of reasonableness and fairness) that oblige insurance companies to provide policyholders with more information than required by the Directive (in case: a summary or full overview of the actual and/or absolute costs and risk premiums, and their composition, deducted by the insurer in respect of the death risk cover). The CJEU determined that the Third Life Assurance Directive does not preclude such obligations, as long as the information provided to consumers is "clear, accurate and necessary for the policyholder to understand the essential characteristics of the commitment and that it ensures a sufficient level of legal certainty". Whether this is the case with regard to general principles of Dutch law, is for the referring court to ascertain. It seems that the information that consumers were missing in the case at hand (overview of the costs and risk premiums) should be seen as information that would be necessary for the policyholder to understand the essential characteristics of the life insurance policy and, therefore, the insurance company could be required by Dutch law to provide this information. It will be interesting to see whether the Dutch court considers general principles of Dutch law as a sufficient legal basis for ascertaining this obligation of the insurance company. After all, these general principles are open and unwritten and, therefore, insurance companies could have difficulties in foreseeing what additional information they would be obliged to provide in various cases and what the policyholder could expect from them.

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