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Insurance Distribution: Intermediary, Distributor, Same Match! – Insurance

EU law has long addressed the issue of insurance distribution (see dir. 771-92, 13 Dec. 1976, JOCE 31 Jan. 1977, RGAT 1977. 110) with the aim of both building a single European market and guaranteeing better protection of the policyholders. Its importance in this area is such that it can be said that “the essential in the framework [de la distribution d’assurance] is European” (J. Bigot et al., Insurance distribution3e ed., LGDJ, 2020, p. 17, no. 5). In this area, EU law has therefore marked its main features both in French law and in the various national European laws. This observation applies especially to the very definition of activity. Regardless of whether we are talking about mediation (dir. 2002/92/EC of 9 December 2002, on insurance mediation) or distribution (dir. 2016/97, 26 January 2016, on distribution insurance), it is European law that has defined this activity as essentially consisting of a form of information, advice, guidance of the insured in the choice of a contract which will be entered into directly, not with the intermediary, but with the insurance company. But what happens when the scheme chosen by the parties deviates from this scheme in order to adopt a figure that is perhaps closer to distribution in the classical sense, i.e. a form of purchase for resale? Is it a distribution company in the sense of the two aforementioned directives? Here, in essence, is the preliminary question recently referred to the Court of Justice of the European Union (CJEU) by the German Federal Court, which gave rise to the annotated decision.

In this case, a German association of consumer associations accused a company of carrying out insurance mediation activities without authorization and consequently asked the judge to order the cessation of these activities. The case gave rise to a contradiction between, on the one hand, the judges in the 1st instance, who accepted the request by assuming that the activity should be considered a mediation business, and on the other hand, the higher court, which took the case on appeal, who confirmed the opposite.

It is that the business model of the company in question did not fit with the usual presentation of the insurance distribution activity. It is actually this company that…



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