Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie (Poland) lodged on 24 March 2020 — A v O
(Case C-143/20)
Language of the case: Polish
Referring court
Sąd Rejonowy dla Warszawy-Woli w Warszawie
Parties to the main proceedings
Applicant: A
Defendant: O
Questions referred
Are Article 185(3)(i) of Directive 2009/138/EC of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) 1 and Article 36(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance 2 in conjunction with point 12 of Annex III(A) thereto to be interpreted as meaning that, in the case of unit-linked life insurance contracts where the underlying assets of the fund are derivatives (or structured financial instruments with derivatives embedded in them), the insurer or policyholder (who offers such insurance, distributes the insurance product, or ‘sells’ the insurance) is obliged to communicate to the insured consumer information on the nature and the type specification and characteristics (English: indication of the nature, German: Angabe der Art, French: indications sur la nature) of the underlying instrument (a derivative or a structured financial instrument with a derivative embedded in it), or is it sufficient to indicate only the type of the underlying assets without communicating the characteristics of that instrument?
If the answer to the first question is that the insurer or policyholder (who offers such insurance, distributes the insurance product, or ‘sells’ unit-linked insurance) is obliged to communicate to the consumer information on the nature and the type specification and characteristics of the underlying instrument (a derivative or a structured financial instrument with a derivative embedded in it), are Article 185(3)(i) of Directive 2009/138/EC and Article 36(1) of Directive 2002/83/EC in conjunction with point 12 of Annex III(A) thereto to be interpreted as meaning that information on the nature and the type specification and characteristics of the underlying instrument (a derivative or a structured financial instrument with a derivative embedded in it) communicated to the insured consumer should contain the same information as that required by 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 and Article 24(4) of Directive 2014/65/EU of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, 4 that is to say, comprehensive information on the derivatives and proposed investment strategies which should include appropriate guidance on and warnings of the risks associated with investments in those instruments or in respect of particular investment strategies, including, in particular, information on the methodology used by the insurer or calculation agent during the term of the insurance cover for pricing the underlying instrument and information on the risks associated with the derivative and its issuer, including on the change in the value of the derivative over time, the various factors determining those changes and the extent to which those factors affect the value?
Is Article 185(4) of Directive 2009/138/EC to be interpreted as meaning that, in the case of unit-linked life and endowment insurance contracts where the underlying asset of the fund is a derivative (or a structured financial instrument with a derivative embedded in it), the insurer or policyholder (who offers such insurance, distributes the insurance product, or ‘sells’ the insurance) is obliged to communicate to the insured consumer the same information as that required by Article 19(3) of Directive 2004/39/EC and Article 24(4) of Directive 2014/65/EU, that is to say, comprehensive information on the derivatives and proposed investment strategies which should include appropriate guidance on and warnings of the risks associated with investments in those instruments or in respect of particular investment strategies, including, in particular, information on the methodology used by the insurer or calculation agent during the term of the insurance cover for pricing the underlying instrument and information on the risks associated with the derivative and its issuer, including on the change in the value of the derivative over time, the various factors determining those changes and the extent to which those factors affect the value?
If the answer to the second or third question (or both) is in the affirmative, does the failure of the insurer or the policyholder offering unit-linked life insurance to provide the insured consumer with the information required (as referred to in the second and third questions) when offering insurance to the consumer constitute an unfair commercial practice within the meaning of Article 5 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 (‘Unfair Commercial Practices Directive’) 5 or does the failure to provide the information required constitute a misleading commercial practice within the meaning of Article 7 of that directive?
If both the second and third questions are answered in the negative, does the failure of the insurer or the policyholder (who offers such insurance, distributes the insurance product, or ‘sells’ unit-linked life insurance) to inform the consumer clearly that the assets of the investment fund (unit-linked fund) are invested in derivatives (or structured products with derivatives embedded in them) constitute an unfair commercial practice within the meaning of Article 5 of the Unfair Commercial Practices Directive or does the failure to provide the information required constitute a misleading commercial practice within the meaning of Article 7 of that directive?
If both the second and third questions are answered in the negative, does the failure of the insurer or the policyholder offering unit-linked life insurance to explain to the consumer in detail the precise characteristics of the instrument in which the assets of the investment fund (unit-linked fund) are invested, including information on the operating rules of such an instrument, where it is a derivative (or a structured instrument with a derivative embedded in it) constitute an unfair commercial practice within the meaning of Article 5 of the Unfair Commercial Practices Directive or does the failure to provide the information required constitute a misleading commercial practice within the meaning of Article 7 of that directive?
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1 OJ 2009 L 335, p. 1.
2 OJ 2002 L 345, p. 1.
3 OJ 2004 L 145, p. 1.
4 OJ 2014 L 173, p. 349.
5 OJ 2005 L 149, p. 22.