# C_2013277EN.01001201.xml

| 26.9.2013 | EN | Official Journal of the European Union | C 277/12 |
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26.9.2013

EN

Official Journal of the European Union

C 277/12

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JUDGMENT OF THE COURT

of 13 June 2013

in Case E-11/12

Beatrix Susanne Koch, Lothar Hummel and Stefan Müller v Swiss Life (Liechtenstein) AG

(Directive 90/619/EEC — Directive 92/96/EEC — Directive 2002/83/EC — Directive 2002/92/EC — Life assurance — Unit-linked benefits — Obligation to provide fair advice — Information to be communicated to the policy holder before the contract is concluded — Principle of equivalence — Principle of effectiveness)

2013/C 277/10

In Case E-11/12 Beatrix Susanne Koch, Lothar Hummel and Stefan Müller v Swiss Life (Liechtenstein) AG — REQUEST to the Court from the Fürstliche Landgericht des Fürstentums Liechtenstein (Princely Court of the Principality of Liechtenstein) under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on the interpretation of Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC, Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive), Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance and Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation, the Court, composed of Carl Baudenbacher, President and Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 13 June 2013, the operative part of which is as follows:

| 1. | Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive) and Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance are to be interpreted as meaning that they do not require the assurance undertaking to provide advice to the policy holder before the contract is concluded. |
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1.

Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive) and Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance are to be interpreted as meaning that they do not require the assurance undertaking to provide advice to the policy holder before the contract is concluded.

| 2. | Article 31 and points a11 and a12 of Annex II(A) of Directive 92/96/EEC and Article 36 and points a11 and a12 of Annex III(A) of Directive 2002/83/EC must be interpreted as meaning that it is for the national court, in the light of all the relevant circumstances of the case before it, to determine whether the written information communicated to the policy holder before a contract on unit-linked life assurance was concluded is complete, clear and accurate; and






  — | sufficient to define the units to which the benefits are linked, and |
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2.

Article 31 and points a11 and a12 of Annex II(A) of Directive 92/96/EEC and Article 36 and points a11 and a12 of Annex III(A) of Directive 2002/83/EC must be interpreted as meaning that it is for the national court, in the light of all the relevant circumstances of the case before it, to determine whether the written information communicated to the policy holder before a contract on unit-linked life assurance was concluded is complete, clear and accurate; and

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sufficient to define the units to which the benefits are linked, and

| — | sufficient to describe the nature of the underlying assets, |
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sufficient to describe the nature of the underlying assets,

such that the prospective policy holder was able to choose the contract best suited to his/her needs.

| 3. | As long as the information is complete and communicated to the policy holder on the terms set out in Article 31 of Directive 92/96/EEC and Article 36 of Directive 2002/83/EC, and in accordance with other rules applicable to the communication of information to the policy holder, it suffices that the information listed in Annex II and Annex III, respectively, is communicated to the policy holder by a third party, for example, an insurance intermediary. |
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3.

As long as the information is complete and communicated to the policy holder on the terms set out in Article 31 of Directive 92/96/EEC and Article 36 of Directive 2002/83/EC, and in accordance with other rules applicable to the communication of information to the policy holder, it suffices that the information listed in Annex II and Annex III, respectively, is communicated to the policy holder by a third party, for example, an insurance intermediary.

| 4. | In circumstances such as those in the present case the EEA Agreement and Directive 92/96/EEC and Directive 2002/83/EC must be interpreted as not precluding a national rule which provides for an administrative complaint procedure after losses have been incurred pursuant to a failure on the part of an assurance undertaking to comply with the requirement to provide information set out in Article 31(1) of Directive 92/96/EEC and Article 36(1) of Directive 2002/83/EC, provided:






  — | first, that the right to claim compensation for pecuniary loss from that assurance undertaking for a failure to communicate the information prescribed in Annex II to Directive 92/96/EEC and Annex III to Directive 2002/83/EC is no less favourable than that applicable to similar domestic actions, and, |
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4.

In circumstances such as those in the present case the EEA Agreement and Directive 92/96/EEC and Directive 2002/83/EC must be interpreted as not precluding a national rule which provides for an administrative complaint procedure after losses have been incurred pursuant to a failure on the part of an assurance undertaking to comply with the requirement to provide information set out in Article 31(1) of Directive 92/96/EEC and Article 36(1) of Directive 2002/83/EC, provided:

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first, that the right to claim compensation for pecuniary loss from that assurance undertaking for a failure to communicate the information prescribed in Annex II to Directive 92/96/EEC and Annex III to Directive 2002/83/EC is no less favourable than that applicable to similar domestic actions, and,

| — | second, that the application of national law does not render it practically impossible or excessively difficult for the policy holder to exercise rights conferred by the directives. |
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second, that the application of national law does not render it practically impossible or excessively difficult for the policy holder to exercise rights conferred by the directives.

It is for the national court to ascertain whether those two conditions are met.

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