Agreement reached on Insurance Distribution Directive: good news for European consumers?

The new Directive on insurance sale is a step closer to being adopted after representatives of the European Parliament reached agreement with the Council on the last day of the Latvian Presidency.

Background

The new Insurance Distribution Directive (IDD) will replace the 2002 Insurance Mediation Directive (IMD) that sets out the present regulatory framework for insurance brokers and other intermediaries and covers a broad range of insurance products, including life insurance with investment elements (so called unit-linked insurance). The IMD left European insurance markets fragmented, with significant inconsistencies in particular to information requirements. Aiming to raise consumer confidence in the aftermath of the financial crisis and to ensure a high level of consumer protection the Commission embarked on the revision of IMD. The Commission's proposal dates back to 2012 (IMD2)- see our summary here. The revised proposal was published on the 30th of June 2015, reflecting a compromise between the Parliament, the Council and the Commission.

Key features of the revised proposal

The Directive is renamed to reflect the wider scope of application (including insurance sold without the involvement of intermediaries).

The IDD complements the rules on the sale of investment products (MiFID II) and Regulation 1286/2014 on key information documents for package retail and insurance-based investment products (PRIIPS).

The IDD is a minimum harmonization directive.

The IDD will bring a number of benefits to European consumers:

• wider scope of application, covering the entire distribution chain, all sellers of insurance products, including insurance companies that sell directly to customers (without engaging an intermediary),
• greater transparency of the price and other costs, including an obligation to disclose whether the seller has an own incentive to sell the particular product,
• eased decision making and product comparison -insurance companies are obliged to hand over a standardized information sheet summarizing the basic coverage of the (non-life) insurance policy and the main exclusions before the contract is concluded, 
• additional rules for the sale of bundled products-consumers will now be able to buy the main good or service without the insurance product,
• stricter requirements for the sale of life insurance products with investment elements (packaged retail insurance-based investment products - PRIIPS).

The Commission welcomed the new proposal. "This agreement is good news for European consumers", said Jonathan Hill, EU Commissioner for Financial Stability, Financial Services and Capital Markets Union. "Consumers will benefit from greater choice and information when they buy insurance products, with more accountability and competition."

While the proposal has many positive features, highlighting two significant drawbacks, BEUC seems somewhat less content:

• sellers are not obliged to disclose the amount of fees and commissions they receive for selling insurance policies,
• the proposal fails to extend recently adopted investor rights like those on investment advice for life insurance products.

Monique Goyens, BEUC's Director General commented: "As with any investment products, small investors spend a substantial amount of money on life insurance policies in the hope that it will result in some saving. It is inexplicable that consumers taking out life insurance policies will be less protected than those opting for an investment fund."

In addition, we may also wonder whether non-disclosure of  the amount of fess and commissions will make price comparisons more difficult, negatively influencing competition and consumer choice, and making harder for European consumers to make informed decisions. Should we care how much we pay in fees and commissions as long as we get the promised cover? What do you think?

Conference: Legal Resolution of Mass Disputes

The University of Haifa, Faculty of Law (Israel) will organize an international conference on Legal Resolution of Mass Disputes, taking place 26-27 November 2015. Panels will discuss class actions, collective redress, transnational class actions, ADR and ODR, legal representation and the social impact of collective disputes. Speakers come from Asia, Europe, the UK and the US. See the programme and register for the conference here.

EDPS's data protection recommendations: "Europe's big opportunity"

Yesterday the European Data Protection Supervisor published his recommendations on the EU's options for data protection reform - Opinion 3/2015 Europe's big opportunity (see here). Also, a new app has been launched - EU Data Protection - that allows everyone to compare on their smartphones the latest texts of the new law on data protection, as they've been proposed by various European legislators. These have been issued in the past 3 years (starting with the Commission's proposal of January 2012) and the intention is to finalize the text of the new law by the end of this year.

The EDPS argues, among other, for:

• possibility for users to have control also over pseudonymised data;
• data only being able to be used for original purposes of its collection;
• preventing "coercive tick boxes" - forcing internet users to agree to data collection and processing when there is no need for it;
• providing an option to give broad or narrow consent to data collection and processing (instead of "all or nothing" approach);
• establishing "an effective system of liability and compensation for damage caused by the unlawful data processing" with a possibility of consumer organisations, among others, claiming these damages for internet users;
• introducing the principles of data protection by design and by default with more transparency and simpler wording when rights of internet users are integrated in default settings;
• upon internet users' request data controllers could directly transfer data to other controllers;

The end to roaming charges as we know them... or is it?

On July 15 the European Parliament's industry committee approved the deal reached between the Commission and the Council on when to end roaming charges in the EU. Pursuant to this agreement, as of next year prices for calling to/from abroad will drop and as of 15 June 2017 additional charges for cross-border phone calls or the use of internet abroad should be abolished. They "should" be abolished, since we've heard these promises before (MEPs say NO to roaming and YES to open internet). Check the table for details on what roaming charges are to look like in the coming two years. Monique Goyens, Director General of BEUC, is less than enthusiastic about the reached agreement: "Today a deal has been drafted with a date to demolish the last digital borders of roaming charges. However, there is devil in the detail. The abolition of retail roaming prices by 2017 is dependent on a wholesale market review being completed, which promises to be a tough task. We cannot call it the end of roaming when there are built-in exceptions to allow providers to charge consumers when they go abroad if they fear it's too costly. It is critical that the EU and national governments observe the deadline and finally ban roaming" (see EU reaches unambitious deal on Roaming charges and Net Neutrality).

Conference: General Principles of Law: European and Comparative Perspectives

The Institute of European and Comparative Law organizes a conference on General Principles of Law: European and Comparative Perspectives, celebrating 20 years of the Institute. It takes place on Friday 25-26 September at St Anne's College Oxford and the Mathematical Institute, University of Oxford (UK). One of the panels will discuss the protection of the weaker party and how it is to be reconciled with the principle of private autonomy.

For further information and registration details check their website.

Sono Italiano? - CJEU in UNIC and UNI.CO.PEL (C-95/14)

16 July 2015: CJEU in UNIC and UNI.CO.PEL (C-95/14)

Not surprisingly, the CJEU followed the AG's opinion in this case (Italian leather shoes not what they used to be...) and declared Italian law that placed more stringent than European rules on marketing and placing on the Italian market of leather shoes coming from other Member States or from third countries, but which have already entered the European market, as inadmissible. While proper labelling of consumer products is important, the national labelling requirements may not, pursuant to the CJEU, go as far as to impede "placing on the market of footwear which complies with the labelling requirements of this Directive". (Par. 42) As a reminder, the Directive requires the label to reveal the composition of the footwear, e.g. whether it's leather, but does not require country of origin of the leather to be revealed. While for many consumers origin labelling is extremely important, since it may allow them to follow their own preferences with regard to domestic/foreign products, exactly for this reason it could hinder the development of the internal market. (Par. 44) Therefore, the CJEU's judgment does not surprise.

Reading tip: Guardian article on Google "right to be forgotten" requests

Our readers will remember that since last year's ECJ decision in Google Spain, it is possible for individuals who think certain information concerning them should not be featured among Google's search results to demand the search engine to put a filter in place by filling in a simple form.

The Guardian has perused Google's transparency report from last year and found some interesting information as to the way this possibility has been made use of so far. The ensuing article really makes a worthy read.  

Salt water as cure for anything - AG Jääsikinen in Neptune Distribution (C-157/14)

9 July 2015: opinion AG Jääsikinen in Neptune Distribution (C-157/14)

Marketing of natural mineral water is specially regulated by the Directive 2009/54 in the EU. It determines the maximum level of sodium that natural mineral waters could contain in order to be advertised as suitable for a low-sodium diet. Due to the special character of these provisions, the question arose whether they take precedence over or rather are complimentary to the Regulation No 1924/2006 on nutrition and health claims. Specifically, while in the Annex of the Regulation the claim on "low sodium/ salt" seems to exclude from its application natural mineral waters, the same exclusion has not been added to the claim on "very low sodium/ salt". The levels of "low sodium/ salt" are the same in both these measures, but the Directive is silent on the "very low sodium/ salt" standard. 

AG Jääsikinen confirms that also producers of natural mineral water while marketing it must follow the guidelines as to what could be labelled as a "very low sodium/ salt" product from the Regulation. Additionally, in the answer to one of the posed question, the AG states that in the calculation of the sodium level all sorts of sodium should be considered (and not only table salt - sodium chloride - as Neptune Distribution has argued for). (Par. 29-33) If this opinion is upheld by the CJEU this will mean that natural mineral water could not be labelled as "very low sodium/ salt" if it contained very little table salt, but the overall sodium level would be high to the e.g. appearance of some baking soda in it (apparently present in certain natural mineral waters). This assessment doesn't surprise in light of the overall aim of protecting consumer health. (Par. 47-48)

Modification or execution of the contract? Price indexation terms before the Court of Justice (AG opinion in C‑326/14)

While legislative harmonisation of private law in Europe has seemingly been put on hold for the time being, existing European measures do not cease to bring "irritations" into the subject and its vocabulary. 

Last week, for instance, AG Cruz Villalon was confronted with the question of what entails a contractual modification under Directive 2002/22 CE, or the Universal Service Directive (here, USD), and in particular its article 20(2), according to which when a modification of contractual conditions occurs, users must be entitled to terminate the contract with no penalties attached. 

The question in Verein fuer Konsumenteninformation (here, the VK) v A1 Telekom Austria AG, the case we will be discussing here, concerned an indexation clause- a term stating that the provider may increase the service price on the basis of the consumer price index variations as determined by an Austrian statistics institute. 

In short: the AG concluded that a price indexation clause should not be seen as allowing a contractual modification- and thus should not be accompanied by the possibility for the consumer to terminate the contract- where the said clause complies with requirements of foreseeability, transparency and legal certainty (see first para 37) such as to ensure (para 41) that that they do not in concreto modify the contract, but rather uphold the original balance.

Want to know/understand more? Read below.

The VK claimed that, under article 20(2) of the USDe, such a term should only be allowed if accompanied by a clause allowing the user to terminate the contract when a price increase was actually adopted. This is plainly the case when other kinds of adaptation clauses are included in a contract, such as clauses allowing the provider to unilaterally recalculate the price in certain situations. 

The company, on the other hand, put forward (para 21) that a price increase based on an indexing clause should not be considered as a contractual modification. The Commission endorsed this last view, adding that in this specifc case the possible variations were clearly outlined, objective and linked to an evaluation performed by an independent third party (the statistics institute).

From the legal point of view, as mentioned above, the question is how to interpret the notion of contractual modification to the ends of the USD. In other words, the question is: 

does a price increase occurring under an indexation clause represent a modification of the contract, or merely execution thereof? 

The AG, after having considered two alternative options, essentially opts for a self-standing interpretation of the concept "contractual modification" for the ends of article 20(2) USD. Let's see how. 

First, he considered whether the Unfair Terms Directive (UTD), which devotes ample attention to indexation terms, should be used as an interpretive tool. According to the AG, although the Directive can be seen to express a certain favor of the European legislator for indexation clauses, the interpretation of article 20(2) cannot be based on the UTD because that Directive only has something to say as to whether certain terms are (to be considered) fair, not on the legal nature of actions undertaken under such terms (see paras 29-30).

Having this cleared, the AG (para 35) looks into the text's plain wording. Prima facie, he says, the notion "modification to the contractual conditions" does not include a price increase deriving from the application of contractual terms. However, he goes on, such literal interpretation would deprive article 20(2) of any meaningful bite, since it would make it possible for variation clauses to deprive users of the right of termination that the provision intends to grant them. 

Thus, the concept has to be interpreted autonomously in the context of the USD. In this context, the price indexation clause should not be seen as entailing a contractual modification where the said clause complies with requirements of foreseeability, transparency and legal certainty (see first para 37) such as to ensure (para 41) that that they do not in concreto modify the contract, but rather uphold the original balance. The foreseeability prong entails that the index used should be determined by a third, independent party on the basis of objective criteria. 

In a turn that is not surprising in this context, the AG (para 40 and 45) asserts that it is for national judges to decide whether a specific term fullfils the conditions above; only in this case, should it be seen as capable of allowing price variations to take place without any contract modification in the sense of article 20(2). 

From a technical point of view, the conclusion might be dubious: how can the "transparency" of a per se valid term determine the legal nature of following actions undertaken under that term? And how exactly did the advocate general come up with the requirements of foreseeability, transparency and legal certainty (as operationalisation of "upholding of the original balance")? However, it seems that in its core the conclusion makes sense. Whether the Court will share this view, and possibly find a better way to argue it, will only be known in a few months...

Unfair terms and the rights of co-debtors as consumers: Bocura v Bancpost (C-348-14)

In a decision published yesterday, the ECJ clarified and reaffirmed a few points concerning the relationship between the information duties established under the Consumer Credit Directive ("old" version, or 87/102) and the Unfair Terms Directive (93/13). 

It also made clear- which should not come as a surprise- that a natural person assuming the role of co-debtor within a consumer credit contract, for reasons not pertaining to her professional activity, should be considered a consumer under both directives. As a consequence, such co-debtor is entitled to receiving all the information that the Consumer Credit Directive requires lenders to provide to consumers.  

The interesting consequence is that, for the ends of assessing whether certain terms contained in a credit contracts should be considered as sufficiently clear and comprehensible, the co-debtor's position should also be taken into account. In particular, in order to assess whether the terms in that contract satisfied the transparency requirement irrespective of the fact that they did not mention certain elements that Directive 87/102 considers as essential information, the consideration of whether "the set of elements liable to have an incidence on the extent of her commitment" has been duly "communicated to the consumer" should, it seems, include the co-debtor's position. 

The decision is, as usual, available on the Court's website (currently only in French and Romanian).