# C_2022165EN.01000201.xml

| 19.4.2022 | EN | Official Journal of the European Union | C 165/2 |
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19.4.2022

EN

Official Journal of the European Union

C 165/2

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Judgment of the Court (Third Chamber) of 24 February 2022 (Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie — Poland) — A v O (C-143/20), G. W., E. S. v A. Towarzystwo Ubezpieczeń Życie S.A. (C-213/20)

(Joined Cases C-143/20 and C-213/20) (1)

(Reference for a preliminary ruling - Freedom to provide services - Direct life assurance - ‘Unit-linked’ open-ended group endowment and life assurance contracts - Directive 2002/83/EC - Article 36 - Directive 2002/92/EC - Article 12(3) - Pre-contractual information disclosure - Information as to the nature of the underlying assets of ‘unit-linked’ assurance contracts - Field of application - Scope - Directive 2005/29/EC - Article 7 - Unfair commercial practices - Misleading omission)

(2022/C 165/02)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Woli w Warszawie

Parties to the main proceedings

Applicants: A (C-143/20), G. W., E. S. (C-213/20)

Defendants: O (C-143/20), A. Towarzystwo Ubezpieczeń Życie S.A. (C-213/20)

Operative part of the judgment

| 1. | Article 36(1) of Directive 2002/83/EC of the European Parliament and of the Council, of 5 November 2002, concerning life assurance, must be interpreted as meaning that the information referred to by it must be communicated to the consumer acceding, as an insured person, to an open-ended group endowment and life assurance contract concluded between an insurance undertaking and the undertaking which is the policyholder. It is for the insurance undertaking to communicate that information to the undertaking which is the policyholder, which must transmit it to that consumer prior to the accession of the latter to that contract, supplied together with all other details that are deemed necessary taking into account the requirements and needs of the latter, in accordance with that provision, read in conjunction with Article 12(3) of Directive 2002/92/EC of the European Parliament and of the Council, of 9 December 2002, on insurance mediation. |
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1.

Article 36(1) of Directive 2002/83/EC of the European Parliament and of the Council, of 5 November 2002, concerning life assurance, must be interpreted as meaning that the information referred to by it must be communicated to the consumer acceding, as an insured person, to an open-ended group endowment and life assurance contract concluded between an insurance undertaking and the undertaking which is the policyholder. It is for the insurance undertaking to communicate that information to the undertaking which is the policyholder, which must transmit it to that consumer prior to the accession of the latter to that contract, supplied together with all other details that are deemed necessary taking into account the requirements and needs of the latter, in accordance with that provision, read in conjunction with Article 12(3) of Directive 2002/92/EC of the European Parliament and of the Council, of 9 December 2002, on insurance mediation.

| 2. | Article 36(1) of Directive 2002/83, read in conjunction with point a(12) of Annex III(A) thereto, must be interpreted as meaning that indications as to the nature of the underlying assets must be communicated to a consumer before that consumer accedes to an open-ended group endowment and life assurance contract must include an indication of the essential characteristics of the underlying assets. Those indications:






  — | must include clear, accurate and understandable information as to the economic and legal nature of those underlying assets, as well as the structural risks that are associated with them, and |
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2.

Article 36(1) of Directive 2002/83, read in conjunction with point a(12) of Annex III(A) thereto, must be interpreted as meaning that indications as to the nature of the underlying assets must be communicated to a consumer before that consumer accedes to an open-ended group endowment and life assurance contract must include an indication of the essential characteristics of the underlying assets. Those indications:

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must include clear, accurate and understandable information as to the economic and legal nature of those underlying assets, as well as the structural risks that are associated with them, and

| — | does not necessarily have to include exhaustive information as to the nature and extent of all the risks associated with the investment in those underlying assets, or the information communicated to the insurance undertaking by the issuer of those financial instruments under Article 19(3) of Directive 2004/39/EC of the European Parliament and of the Council, of 21 April 2004, on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC. |
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does not necessarily have to include exhaustive information as to the nature and extent of all the risks associated with the investment in those underlying assets, or the information communicated to the insurance undertaking by the issuer of those financial instruments under Article 19(3) of Directive 2004/39/EC of the European Parliament and of the Council, of 21 April 2004, on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC.

| 3. | Article 36(1) of Directive 2002/83 must be interpreted as meaning that the information referred to in point a(12) of Annex III(A) to that directive does not necessarily have to be communicated to a consumer who accedes, as an insured person, to an open-ended group endowment and life assurance contract in a separate pre-contractual procedure and that it does not preclude a national provision under which it is sufficient if that information is mentioned in that contract, where provided to that consumer prior to their accession, such as to enable them to make a timely and an informed choice as to the assurance product which best meets their requirements. |
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3.

Article 36(1) of Directive 2002/83 must be interpreted as meaning that the information referred to in point a(12) of Annex III(A) to that directive does not necessarily have to be communicated to a consumer who accedes, as an insured person, to an open-ended group endowment and life assurance contract in a separate pre-contractual procedure and that it does not preclude a national provision under which it is sufficient if that information is mentioned in that contract, where provided to that consumer prior to their accession, such as to enable them to make a timely and an informed choice as to the assurance product which best meets their requirements.

| 4. | Article 36(1) of Directive 2002/83 must be interpreted as not requiring a failure to correctly discharge the obligation to communicate the requisite information referred to in point a(12) of Annex III(A) to that directive to be regarded as entailing the nullity or invalidity of an open-ended group endowment and life assurance contract or the accession declaration thereto and thus confers on the consumer who acceded to that contract the right to the recovery of the assurance premiums paid, to the extent that the national law procedural rules for the exercise of the right to rely on that information obligation are not such as to undermine the effectiveness of that right by dissuading that consumer from exercising it. |
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4.

Article 36(1) of Directive 2002/83 must be interpreted as not requiring a failure to correctly discharge the obligation to communicate the requisite information referred to in point a(12) of Annex III(A) to that directive to be regarded as entailing the nullity or invalidity of an open-ended group endowment and life assurance contract or the accession declaration thereto and thus confers on the consumer who acceded to that contract the right to the recovery of the assurance premiums paid, to the extent that the national law procedural rules for the exercise of the right to rely on that information obligation are not such as to undermine the effectiveness of that right by dissuading that consumer from exercising it.

| 5. | Article 7 of Directive 2005/29/EC of the European Parliament and of the Council, of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that, for the purposes of that provision, failure to communicate the information referred to in Article 36(1) of Directive 2002/83, read in conjunction with point a(12) of Annex III(A) thereto, to a consumer acceding to an open-ended group endowment and life assurance contract, is likely to constitute a misleading omission. |
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5.

Article 7 of Directive 2005/29/EC of the European Parliament and of the Council, of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that, for the purposes of that provision, failure to communicate the information referred to in Article 36(1) of Directive 2002/83, read in conjunction with point a(12) of Annex III(A) thereto, to a consumer acceding to an open-ended group endowment and life assurance contract, is likely to constitute a misleading omission.

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(1)  OJ C 209, 22.6.2020.

OJ C 304, 14.9.2020.

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