Comments on Discussion Paper 2: Differences in Insurance Contract Laws and the Existing EU Legal Framework

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1 Jürgen Basedow Expert Group on European Insurance Contract Law Comments on Discussion Paper 2: Differences in Insurance Contract Laws and the Existing EU Legal Framework 1. General Observations The discussion paper provides a good survey of EU law and also a useful summary of the divergences existing between the various Member State laws. Re: line 4 Unfair Contract Terms Directive 93/13: The application of this Directive to insurance contracts or to a major part of them is not beyond doubt. In the English (and French) version, Recital 19 appears to exclude the terms of insurance contracts since [they] are taken into account in calculating the premium paid by the insurer. In the German (and Italian) version terms of insurance contracts are only excluded from the judicial review, sofern (i.e. to the extent to) or qualora (i.e. where or if) the premium actually reflects the restrictions contained in them. This is a clear divergence of the texts. The Directive therefore cannot be relied on as a means of approximating insurance contract law. Re: last sentence Late Payment Directive: Directive 2000/35/EC cited in footnote 6 has been repealed and replaced by Directive 2011/7/EU. Since the Directive only deals with payments made as remuneration, it arguably applies only to the payment of premium, not to the payment of the insurance money which can hardly be classified as a remuneration. Late payment of premium is not a great problem for insurers as long as they have the right to suspend cover. The text of the discussion paper is a bit misleading on this point. Re: 1.2 page 4 penultimate paragraph: The regime described does not only protect policy holders, but also the operationability of the judiciary of the various Member States. Since policy holders, under the Brussels I Regulation can bring their actions against the insurer in their own home countries, the application of the user s law comes down to the application of the law of the forum. If insurers were allowed to stipulate the application of the company s law in cross-border insurance contracts on mass risks the rules on jurisdiction in Brussels I would still be the same; they would however have the effect of requiring the courts to apply foreign law at large scale with the effect of slowing down the machinery of justice. This would be inacceptable for both users and Member States. Re: 2 line 6: Where is footnote 14? The footnote 15 at the bottom of page 7 is reproduced twice: here and on page 8; according to its content it rather refers to page Answering the Questions on Section I Q 1: Since, in respect of large risks, national insurance contract laws are essentially dispositive, i.e. default provisions and since they may also be avoided by the parties choice of law under Article 7(2) Rome I, it is difficult to see how legal divergences could

2 be considered as a restriction of the cross-border supply of services. In respect of the free movement of goods the Court of Justice pointed out that a provision of French contract law could not be considered to restrict that freedom since the parties were able to avoid it by selecting a different national sales law, see ECJ 24 January 1991, case C- 339/89, [1989] E.C.R. I-120 cons. 15. The situation is the same as in Q 1. Q 2: To my knowledge, cross-border insurance contracts for the cover of large risks are not very frequent (outside marine insurance). This may be due to the fact, that in the area of large risks the sums involved are much higher and the risks are not standardized; they require the insurer s presence at the place of the location of the risk. There are other mechanisms which extend the large risk insurance market beyond national boundaries: (1) Multinational users join their risks located in various countries and take out insurance in the country of their headquarters for the whole bundle of risks; while that bundle is inherently multinational, the contract is a domestic one. (2) Brokers organize a community of co-insurers originating in several countries for the insurance of a risk located in State A; the leading underwriter will often be the co-insurer from this State. It will conclude the contract as a domestic contract under the laws of that State. (3) Re-insurance offers a similar possibility: The direct insurer signs 100% of the risk, but effectively bears only a tiny portion, whereas the major part, sometimes more than 90% are passed on to the international re-insurance market. Q 3: Can t see the difference to Q 1. Q 4: The templates used by online insurers often do not accept zip codes or other parts of the addresses of foreign applicants. In other cases they explicitly reject applications from abroad, sometimes even on the ground that the applicable legal regime differs. I refer to the copies from the website of the German life insurance company Cosmos Direct which I handed over to you at the April meeting. Similar experience could for example be gathered with the leading German motor liability insurer HUK Coburg. Q 5: Some published court decisions that have come to my attention indicate that some insurers in fact use the freedom to choose the applicable law under Article 7(3) Rome I. I know of a judgment of a German court which had to deal with a life insurance contract subject to the law of Greece between a Greek policy holder living in Germany and a Greek insurance company; that choice of law would nowadays be permitted under Article 7(3)(c). The bundle type of insurance described above in Q 2 also appears to occur in practice, in conformity with Article 7(3)(e) Rome I. Q 6 and 7: According to my knowledge insurers react to the mandatory application of the policyholder s law to cross-border mass risk insurance by simply not making an offer to the market. Q 8: That is a question mainly for practitioners. I can contribute the following anecdotal evidence I heard from the then chief legal officer of Zurich Insurance Group in the late 1990s: This company had been asked by the manufacturer of the Smart cars to conceive of a motor policy to be sold in a package together with the car in all European countries. Zurich allegedly set up a group of legal experts which worked on the project for several

3 months; they finally gave up because it was not possible to draft a policy that would be in line with all national insurance contract laws. This occurrence can best be explained by the fact that there are some national insurance contract laws which do not only establish minimum standards for the policy holder s protection, but are absolutely mandatory in the sense that they do not even permit a derogation to the policy holder s benefit; this is for example the case in Belgium, see art. 3 of the Belgian ICA of 1992 and Marcel Fontaine, Droit des assurances, 2 nd ed. Bruxelles 1996, p. 58 with explicit reference to the legislative materials. Moreover, some Member States require compulsory insurance contracts and in particular motor liability policies to be subject to their respective national laws, as allowed by art. 7(4)(b) Rome I. Both factors explain that an insurer cannot offer pan-european policies by simply providing a protection to policy holders exceeding the one required by the most demanding national statute. Q 9 to 12: These questions coincide with the questions 4 and 6 to 8 above. The answers are the same. Q 13: Again, this question should be answered by practitioners. 3. Answering the Questions on Section II Q 1: The differences outlined in Section II of the Discussion Paper only deal with the most conspicuous divergences. Behind those national rules there are often further mandatory rules which deal with ancillary details. Take the example of prolongation clauses (2.14, third paragraph). Even if consent could be achieved on the permission of prolongation clauses their effect could be very different in the various jurisdictions according to the notice periods granted to the policyholder. Where a policyholder is allowed, by a mandatory provision, to terminate the contract until 1 month before the prolongation period starts he is in a much more convenient position than he would be in a country where a notice of termination is only valid if received by the insurer 6 months ahead of the beginning of the prolongation period. Although rules on the notice period may appear to be of marginal significance they are of obvious importance for the user who, in the case of a one year contract term and a notice period of 6 months, is more or less compelled to think about his insurance cover all year long. These rules are also important for the business organization of the insurer. His personnel permanently deals with thousands of cases; therefore procedures have to be uniform. Assessing the validity of a termination notice must be possible without the ascertainment of a foreign law and without requesting an opinion of legal counsel. There are also certain aspects of the insurance contract which are not covered by Section II. An example is the scope of the insurance agent s authorization. Some national laws allow the insurer to limit this authorization to the effect that a declaration (of an insured event or a notice of termination etc.) made by the policy holder vis-à-vis the agent is deemed not to have been received by the insurer. Other Member States provide for a mandatory minimum scope of the agent s authority. In countries of the former type insurers may succeed to channel all significant correspondence with the policy holder to their direct relation and, thereby, to minimize the risk that the agent, pursuing his own interest, acts in collusion with the policy holder to the insurer s detriment. Mandatory

4 rules of other Member States that prohibit such channelling of correspondence may deter the insurer of building up a distribution network based on agency. On the other hand, the user who has negotiated with the agent exclusively, will obviously be deceived by such clauses. Q 2: The question hints at the existence of a certain ranking among the various differences in the sense that some are more serious obstacles to the internal insurance market than others. Establishing such a ranking would however appear to be almost impossible. It would require a comprehensive investigation into the insurance contract law of a foreign country in respect of several types of policies. This would presuppose a high investment in terms of legal costs, an investment which would only be the first step; other and perhaps even higher investments for building up a distribution network and a brand reputation, for the adjustment of products to the foreign language etc. would follow. For an example see above, the answer to Q 1. In respect of mass risks insurers nowadays often operate call centers where personnel without legal training receives telephone calls from applicants and policy holders. Where a policy holder calls, reporting an insured event, he will in some Member States and depending on the contract clauses receive the answer that he has to do that in writing and within a period of X days. Where a policy holder is habitually resident in another Member State, this answer will depend on the legislation of that Member State, a legislation which may be more restrictive and is unknown to the person in the call center. In order to comply with the present legal framework the insurer would have to build up separate call centers for the various national markets it wants to serve. Q 3: The example given in the previous paragraph favours cross-border activity in the form of establishment; in fact the costs incurred for a separate call-center with separate personnel would usually be part of the costs caused by building up an establishment. Q 4: In the light of the existing legislation in many Member States and in art. 7 Rome I the borderline between B2B and B2C does not appear to reflect the reality of insurance markets since SME are protected in the same way as consumers in many respects. Q 5: Yes, of course. If the major part of insurance contract law were dispositive, many insurers would certainly try to sell their products abroad. But this is hypothetical; insurance contract law is mandatory to a much greater extent than the contract law of other markets. Since insurance contract law is mainly dispositive for large risk insurance which for the major part is B2B insurance, divergences in contract law do not appear to be an obstacle to cross-border activities in this field; compare also the answer to Q 2 above at 2. Q 6: Certain branches of insurance are B2B insurance or large risk insurance by their very nature; consequently divergences in contract law do not impede cross-border activity while there may be other reasons, see above, the answer to Q 5. In B2C and B2SME insurance differences in insurance contract law are likely to be perceived as impediments to cross-border activity where the insurance product is simple and standardized, i.e. where the insurer does not investigate the individual risk before making the contract, but is satisfied by the applicant s answers to a branch-

5 specific questionnaire. This applies to standardized property insurance, e.g. home insurance or insurance of jewels, perhaps also to private or even professional liability insurance, and life insurance. Q 7: As explained above, in the answer to Q 1, it is not possible to establish a ranking of more and less significant legal divergences. They are numerous and because of the mandatory character not susceptible of being overcome by private contracting. As a bundle of legal divergences they discourage cross-border insurance activities in the sense of cross-border services. Hamburg, 5 May 2013

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