# C_2018427EN.01000601.xml

| 26.11.2018 | EN | Official Journal of the European Union | C 427/6 |
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26.11.2018

EN

Official Journal of the European Union

C 427/6

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Request for a preliminary ruling from the Bezirksgericht für Handelssachen Wien (Austria) lodged on 20 July 2018 — KL and Others v UNIQUA Österreich Versicherungen and Others

(Case C-479/18)

(2018/C 427/10)

Language of the case: German

Referring court

Bezirksgericht für Handelssachen Wien

Parties to the main proceedings

Applicants: KL, LK, MJ, NI

Defendants: UNIQUA Österreich Versicherungen, DONAU Versicherung AG Vienna Insurance Group, Allianz Elementar Lebensversicherungs-Aktiengesellschaft

Questions referred

| 1. | Must Article 15(1) of Directive 90/619/EEC, (1) in conjunction with Article 31 of Directive 92/96/EEC, (2) or Article 35(1), in conjunction with Article 36(1), of Directive 2002/83/EC, (3) or Article 185(1), in conjunction with Article 186(1), of Directive 2009/138/EC (4) be interpreted as meaning that — in the absence of national rules on the effects of incorrect information concerning the right of cancellation before the contract is concluded — the period for exercising the right of cancellation does not begin to run if the insurance undertaking specifies in the information that the right of cancellation must be exercised in written form, even though under national law it is possible to cancel in any form? |
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1.

Must Article 15(1) of Directive 90/619/EEC, (1) in conjunction with Article 31 of Directive 92/96/EEC, (2) or Article 35(1), in conjunction with Article 36(1), of Directive 2002/83/EC, (3) or Article 185(1), in conjunction with Article 186(1), of Directive 2009/138/EC (4) be interpreted as meaning that — in the absence of national rules on the effects of incorrect information concerning the right of cancellation before the contract is concluded — the period for exercising the right of cancellation does not begin to run if the insurance undertaking specifies in the information that the right of cancellation must be exercised in written form, even though under national law it is possible to cancel in any form?

| 2. | (If the first question is answered in the affirmative:)
  Must Article 15(1) of Directive 90/619/EEC, in conjunction with Article 31 of Directive 92/96/EEC, be interpreted as precluding a national rule under which, in the event of no information or incorrect information being supplied on the right of cancellation before the contract is concluded, the period for exercising the right of cancellation begins to run at the point in time at which the policy-holder was informed — by whatever means — of his right of cancellation? |
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2.

(If the first question is answered in the affirmative:)

Must Article 15(1) of Directive 90/619/EEC, in conjunction with Article 31 of Directive 92/96/EEC, be interpreted as precluding a national rule under which, in the event of no information or incorrect information being supplied on the right of cancellation before the contract is concluded, the period for exercising the right of cancellation begins to run at the point in time at which the policy-holder was informed — by whatever means — of his right of cancellation?

| 3. | Must Article 35(1), in conjunction with Article 36(1), of Directive 2002/83/EC be interpreted as meaning that — in the absence of national rules on the effects of no information or incorrect information being supplied on the right of cancellation before the contract is concluded — the policy-holder’s right to cancel the contract expires at the latest after the surrender value has been paid out to him by reason of his having given notice to terminate the contract and thus the contracting parties have performed in full the obligations under the contract? |
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3.

Must Article 35(1), in conjunction with Article 36(1), of Directive 2002/83/EC be interpreted as meaning that — in the absence of national rules on the effects of no information or incorrect information being supplied on the right of cancellation before the contract is concluded — the policy-holder’s right to cancel the contract expires at the latest after the surrender value has been paid out to him by reason of his having given notice to terminate the contract and thus the contracting parties have performed in full the obligations under the contract?

| 4. | (If the first question is answered in the affirmative and/or the third question is answered in the negative:)
  Must Article 15(1) of Directive 90/619/EEC, or Article 35(1) of Directive 2002/83/EC, or Article 186(1) of Directive 2009/138/EC be interpreted as precluding a national rule under which the surrender value (the current value for the insurance calculated in accordance with the accepted rules of actuarial calculations) must be reimbursed to the policy-holder if he exercises his right of cancellation? |
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4.

(If the first question is answered in the affirmative and/or the third question is answered in the negative:)

Must Article 15(1) of Directive 90/619/EEC, or Article 35(1) of Directive 2002/83/EC, or Article 186(1) of Directive 2009/138/EC be interpreted as precluding a national rule under which the surrender value (the current value for the insurance calculated in accordance with the accepted rules of actuarial calculations) must be reimbursed to the policy-holder if he exercises his right of cancellation?

| 5. | (If the fourth question is to be dealt with and is answered in the affirmative:)
  Must Article 15(1) of Directive 90/619/EEC, or Article 35(1) of Directive 2002/83/EC, or Article 186(1) of Directive 2009/138/EC be interpreted as precluding a national rule under which, in the event of exercise of the right of cancellation, the claim to a flat rate of interest for the reimbursed premiums due to limitation may be restricted to the proportion covering the period of the last three years prior to the bringing of the action? |
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5.

(If the fourth question is to be dealt with and is answered in the affirmative:)

Must Article 15(1) of Directive 90/619/EEC, or Article 35(1) of Directive 2002/83/EC, or Article 186(1) of Directive 2009/138/EC be interpreted as precluding a national rule under which, in the event of exercise of the right of cancellation, the claim to a flat rate of interest for the reimbursed premiums due to limitation may be restricted to the proportion covering the period of the last three years prior to the bringing of the action?

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(1)  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 (OJ 1990 L 330, p. 50).

(2)  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) (OJ 1992 L 360, p. 1).

(3)  Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ 2002 L 345, p. 1).

(4)  Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1).

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