Opinion of the Advocate General — ECLI:EU:C:2017:879
Date: 2017-11-21
Language of the case: Swedish
Subject matter: Right of establishment;Free movement of capital;Internal market - Principles;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Impact Assessment, accompanying the Proposal for a Directive of the European Parliament and the Commission on insurance mediation, SWD (2012) 192 final, of 3 July 2012, p. 4. 22 See point 22 for the wording. It expressly excludes from the definition of such products non-life insurance products, traditional life insurance without a financial component, occupational pension schemes and individual pension products. 23 See point 23 above. 24 It is usually referred to as the PRIIPs (Packaged Retail and Insurance-based Investment Products) Regulation. 25 See point 15 for the wording. Directive 2016/97 refers to insurance distribution rather than mediation because, in addition to mediation, it covers other, additional methods of distribution linked to new technology. 26 The term ‘insurance-based investment product’ is defined in Article 2(1)(17) of the directive and repeats verbatim the wording introduced by the MiFID II into Directive 2002/92, and the exclusions provided for therein. 27 At paragraph 3.3 of its written observations, Länsförsäkringar also appears to concur with that view. It accepts that, in the light of the definition in Directive 2016/97, the rules applicable to insurance-based investment products would have been applicable to this case if that directive had been in force instead of Directive 2002/92. 28 The regulation of investment undertakings which sell or advise on the sale of financial services is stricter because the financial instruments with which they work involve, for consumers, risks which are greater and more difficult to understand. By contrast, the regulation of the mediation activities of insurance intermediaries is less strict because there is also a lower risk that clients’ assets will be affected. 29 Directive of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) (OJ 2006 L 177, p. 201). Article 8, which was in force at the material time, provides that if an investment firm is also registered as an insurance intermediary, it will have to comply with Article 4(3) of Directive 2002/92 (professional indemnity insurance) and have coverage in one of the following forms: a) initial capital of EUR 25 000; b) professional indemnity insurance covering the whole territory of the Community or some other comparable guarantee against liability arising from professional negligence, representing at least EUR 500 000 applying to each claim and in aggregate EUR 750 000 per year for all claims; or c) a combination of initial capital and professional indemnity insurance in a form resulting in a level of coverage equivalent to that referred to in points (a) or (b). Directive 2006/49 was repealed by Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), but the wording of Article 8 was reproduced in Article 31(2) of the new directive. 30 My emphasis. 31 My emphasis. 32 If an insurance intermediary provides investment advice as a main activity, the national supervisory authorities should intervene and require it to hold the authorisation required of investment undertakings pursuant to the MiFID I. 33 The fact that list of financial instruments in Section C of Annex I to the MiFID I does not include the category ‘insurance-based investment products’ does not mean that the financial product sold with the capital life insurance does not come under one of the categories in that list, such as ‘transferable securities’ or ‘units in collective investment undertakings’. 34 The risk associated with this type of insurance tends to be lower than that associated with financial instruments covered by the MiFID I, according to sectoral information. See Insurance Europe, Complexity and comprehension for insurance-based investment products (IBIPs), Position Paper COB-PRI-17-002, of 13 June 2017.