# C_2020068EN.01000801.xml

| 2.3.2020 | EN | Official Journal of the European Union | C 68/8 |
| --- | --- | --- | --- |

2.3.2020

EN

Official Journal of the European Union

C 68/8

---

Judgment of the Court (Third Chamber) of 19 December 2019 (request for a preliminary ruling from the Landesgericht Salzburg, Bezirksgericht für Handelssachen Wien — Austria) — Barbara Rust-Hackner (C-355/18), Christian Gmoser (C-356/18), Bettina Plackner (C-357/18) v Nürnberger Versicherung Aktiengesellschaft Österreich and KL v UNIQA Österreich Versicherungen AG, LK v DONAU Versicherung AG Vienna Insurance Group, MJ v Allianz Elementar Lebensversicherungs-Aktiengesellschaft, NI v Allianz Elementar Lebensversicherungs-Aktiengesellschaft (C-479/18)

(Joined Cases C-355/18 to C-357/18 and C-479/18) (1)

(References for a preliminary ruling - Freedom to provide services - Direct life assurance - Directives 90/619/EEC, 92/96/EEC, 2002/83/EC and 2009/138/EC - Right of cancellation - Incorrect information concerning the detailed rules for exercising the right of cancellation - Formal requirements for the declaration of cancellation - Effects on the obligations of the assurance undertaking - Time limit - Lapse of the right of cancellation - Possibility to cancel a contract after it has been terminated - Repayment of the surrender value of the contract - Reimbursement of premiums paid - Right to remuneration interest - Limitation)

(2020/C 68/04)

Language of the case: German

Referring court

Landesgericht Salzburg, Bezirksgericht für Handelssachen Wien

Parties to the main proceedings

Applicants: Barbara Rust-Hackner (C-355/18), Christian Gmoser (C-356/18), Bettina Plackner (C-357/18), KL, LK, MJ, NI (C-479/18)

Defendants: Nürnberger Versicherung Aktiengesellschaft Österreich (C-355/18 to C-357/18), UNIQA Österreich Versicherungen AG, DONAU Versicherung AG Vienna Insurance Group, Allianz Elementar Lebensversicherungs-Aktiengesellschaft, Allianz Elementar Lebensversicherungs-Aktiengesellschaft (C-479/18)

Operative part of the judgment

| 1. | Article 15(1) 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, as amended by Council Directive 92/96/EEC of 10 November 1992, in conjunction with Article 31 of 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), Article 35(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance, in conjunction with Article 36(1) of that directive, and Article 185(1) of 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), in conjunction with Article 186(1) of that directive, must be interpreted as meaning that the period for exercising the right to cancel a life assurance contract begins to run from the moment when the policyholder is informed that the contract is concluded, even though the information provided by the assurance undertaking to that policyholder






  — | either fails to specify that the national law applicable to the contract does not provide for any formal requirements for the exercise of that right of cancellation, or |
| --- | --- | --- |

1.

Article 15(1) 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, as amended by Council Directive 92/96/EEC of 10 November 1992, in conjunction with Article 31 of 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), Article 35(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance, in conjunction with Article 36(1) of that directive, and Article 185(1) of 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), in conjunction with Article 186(1) of that directive, must be interpreted as meaning that the period for exercising the right to cancel a life assurance contract begins to run from the moment when the policyholder is informed that the contract is concluded, even though the information provided by the assurance undertaking to that policyholder

—

either fails to specify that the national law applicable to the contract does not provide for any formal requirements for the exercise of that right of cancellation, or

| — | indicates formal requirements that are in reality not required by the national law applicable to that contract or by the clauses set out in that contract, provided that such an indication does not essentially limit the circumstances in which the policyholders can exercise their right of cancellation as compared with the circumstances in which they could have done so if that information had been correct. It is for the referring courts to assess, on the basis of an overall assessment taking into account, in particular, the national legislative context and the facts in the main proceedings, whether the error contained in the information provided to the policyholder created such a limitation. |
| --- | --- |

—

indicates formal requirements that are in reality not required by the national law applicable to that contract or by the clauses set out in that contract, provided that such an indication does not essentially limit the circumstances in which the policyholders can exercise their right of cancellation as compared with the circumstances in which they could have done so if that information had been correct. It is for the referring courts to assess, on the basis of an overall assessment taking into account, in particular, the national legislative context and the facts in the main proceedings, whether the error contained in the information provided to the policyholder created such a limitation.

| 2. | Article 15(1) of Directive 90/619, as amended by Directive 92/96, in conjunction with Article 31 of Directive 92/96, must be interpreted as meaning that, where no information is provided by the assurance undertaking to the policyholder concerning the latter’s right of cancellation or where the information provided by the assurance undertaking is so incorrect that it essentially limits the circumstances in which the policyholder can exercise his or her right of cancellation as compared with the circumstances in which he or she could have done so if that information had been correct, the period for exercising the right of cancellation shall not start to run, even if the policyholder has become aware of the existence of the right of cancellation by other means. |
| --- | --- |

2.

Article 15(1) of Directive 90/619, as amended by Directive 92/96, in conjunction with Article 31 of Directive 92/96, must be interpreted as meaning that, where no information is provided by the assurance undertaking to the policyholder concerning the latter’s right of cancellation or where the information provided by the assurance undertaking is so incorrect that it essentially limits the circumstances in which the policyholder can exercise his or her right of cancellation as compared with the circumstances in which he or she could have done so if that information had been correct, the period for exercising the right of cancellation shall not start to run, even if the policyholder has become aware of the existence of the right of cancellation by other means.

| 3. | Article 15(1) of Directive 90/619, as amended by Directive 92/96, in conjunction with Article 31 of Directive 92/96, and Article 35(1) of Directive 2002/83, in conjunction with Article 36(1) of that directive, must be interpreted as meaning that, once the contract has been terminated and all obligations arising from it have been complied with, including, in particular, the payment by the assurance undertaking of the surrender value, the policyholder may still exercise his or her right of cancellation provided that the law applicable to the contract does not determine the legal effects arising where either no information is provided in respect of the right of cancellation or incorrect information is provided. |
| --- | --- |

3.

Article 15(1) of Directive 90/619, as amended by Directive 92/96, in conjunction with Article 31 of Directive 92/96, and Article 35(1) of Directive 2002/83, in conjunction with Article 36(1) of that directive, must be interpreted as meaning that, once the contract has been terminated and all obligations arising from it have been complied with, including, in particular, the payment by the assurance undertaking of the surrender value, the policyholder may still exercise his or her right of cancellation provided that the law applicable to the contract does not determine the legal effects arising where either no information is provided in respect of the right of cancellation or incorrect information is provided.

| 4. | Article 15(1) of Directive 90/619, as amended by Directive 92/96, Article 35(1) of Directive 2002/83 and Article 185(1) of Directive 2009/138 must be interpreted as precluding national legislation under which an assurance undertaking is required to reimburse to a policyholder who has exercised his or her right of cancellation only the surrender value. |
| --- | --- |

4.

Article 15(1) of Directive 90/619, as amended by Directive 92/96, Article 35(1) of Directive 2002/83 and Article 185(1) of Directive 2009/138 must be interpreted as precluding national legislation under which an assurance undertaking is required to reimburse to a policyholder who has exercised his or her right of cancellation only the surrender value.

| 5. | Article 15(1) of Directive 90/619, as amended by Directive 92/96, Article 35(1) of Directive 2002/83 and Article 186(1) of Directive 2009/138 must be interpreted as not precluding national legislation providing for a limitation period of 3 years for the exercise of the right to remuneration interest, associated with the repayment of sums that were not payable, requested by a policyholder who has exercised his or her right of cancellation, provided that establishment of such a period does not undermine the effectiveness of that policyholder’s right of cancellation, such a matter being for the referring court in Case C-479/18 to verify. |
| --- | --- |

5.

Article 15(1) of Directive 90/619, as amended by Directive 92/96, Article 35(1) of Directive 2002/83 and Article 186(1) of Directive 2009/138 must be interpreted as not precluding national legislation providing for a limitation period of 3 years for the exercise of the right to remuneration interest, associated with the repayment of sums that were not payable, requested by a policyholder who has exercised his or her right of cancellation, provided that establishment of such a period does not undermine the effectiveness of that policyholder’s right of cancellation, such a matter being for the referring court in Case C-479/18 to verify.

---

(1)  OJ C 294, 20.8.2018.

OJ C 427, 26.11.2018.

---