E-17/24
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Deadlines: Motivation ministry: 22 August 2024 Written observations: 8 October 2024
Keywords: Insurance claims
Subject: 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: Article 268(1)(g).
Facts of the case: Applicant is an insurance intermediary and a joint-stock company under Norwegian law. Defendant is a direct insurance undertaking, and a joint-stock company under Liechtenstein law. Applicant has lodged a claim in an insolvency proceeding against the defendant. The defendant, which is the insolvency estate administrator, contested the claim in full. The applicant then brought an action against the defendant before the Court, seeking a declaration that the applicant is entitled to an insolvency claim, and that the claim constitutes a claim in the first category (meaning a privileged insurance claim). The Court ruled that the claim constitutes an insurance claim under Article 161 of the Insurance Supervision Act. The defendant has brought an appeal against the judgment.
Liechtenstein law is applied to the assignment of the claim. On the basis of that law, the rights of the transferee are precisely the same as the right of the transferor with respect to the ceded claims. This means that the claim is not altered by way of the assignment, there is no change of substance to the assigned claim. On the basis of Article 268(1) of Directive 2009/138 however, an insurance claim is an amount which is owed by an insurance undertaking to insured persons, policy holders, beneficiaries or to any injured party having direct right of action against the insurance undertaking [..]. On this basis, the applicant would be deprived a claim of its character as an ‘insurance claim’, since it is neither an insured person nor a policy holder. On the basis of Article 275, an insurance claims takes precedence over other claims against the insurance undertaking. However, where the rights of insurance creditors have been subrogated to a guarantee scheme, a Member State can provide that claims by that scheme shall not benefit from the provisions of Article 275(1). According to the referring court, an unclear legal situation exists, and an Advisory Opinion is therefor asked from the EFTA Court.
Request for an advisory opinion: Is an insurance claim within the meaning of Article 268(1)(g) 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), OJ 2009 L 335, p. 1, incorporated in the EEA Agreement by Decision of the EEA Joint Committee No 78/2011 of 1 July 2011, LGBl 2012/384, to be given precedence in accordance with Article 275(1) of that directive even where the claim was assigned to a third party by way of a legal transaction and, under national law, assignment of the claim entails no change in the content of the claim?
Cited (recent) case-law: -
Policy Area: FIN
