E-5/20 SMA SA and Société Mutuelle d'Assurance du Batiment et des Travaux Publics v Finanzmarktaufsicht

EFTA-case  

Klik hier voor het dossier van het EVA-hof (voor zover beschikbaar).

Deadlines: Motivation ministry:    29 June 2020
Written observations:                    15 August 2020

Keywords : insurance; insolvency;

Subject :

-           Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA)

-           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);

-           Directive 2014/51/EU of the European Parliament and of the Council of 16 April 2014 amending Directives 2003/71/EC and 2009/138/EC and Regulations (EC) No 1060/2009, (EU) No 1094/2010 and (EU) No 1095/2010 in respect of the powers of the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority);

Facts of the case:

The defendant is an independent body governed by public law, responsible for the oversight and the implementation of the Insurance Supervisiory Act. The applicants are insurance companies established under French law. They are market leaders in France for what is known as construction insurance. Gable Insurance AG (in liquidation) is an insurance undertaking established under Liechtenstein law. From 23-12-2005 it was granted by the defendant, as the competent supervisory authority, authorisation to pursue non-life insurance activities. By order of 17-11-2016, insolvency proceedings in relation to Gable Insurance AG, which remain pending, were opened by the Princely Court of Justice. The applicants have claims against Gable Insurance AG which cannot be made because of Gable’s insolvency proceedings. The applicants state that the defendant infringed its supervisory obligations in relation to Gable Insurance AG. Had it fulfilled these, the insolvency proceedings would not have been opened (in good enough time) that within the insolvency proceedings the applicants would not have suffered any default on their claims. The defendant denied the claim, requested the action to be dismissed and argued that it had not infringed but had fulfilled, diligently and in accordance with the law, its supervisory obligations.

Request for an advisory opinion:

1. Must 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) (Collection of EEA law (EWR-Rechtssammlung): Annex IX - 1.01), in particular Articles 27 and 28 thereof, and Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive), and the Second Council Directive of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC (88/357/EEC), in particular Article 1(b), Article 7(1)(a) to (c), Article 10, Article 11(7) and Article 21 thereof, and the First Council Directive of 24 July 1973 on the coordination of laws, Regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (73/239/EEC), in particular Articles 13 and 14 thereof, be interpreted as meaning that these grant rights to creditors of a supervised direct insurance undertaking who are not policy holders, insured persons or beneficiaries of this insurance undertaking or other party to an insurance contract concluded with this insurance undertaking and to whom as injured third party also otherwise no direct right of action against this insurance undertaking as a result of an insurance law relationship is directly conferred and whose claims are owed not by reason of an insurance contract or another activity to which these legal bases are applicable in the framework of direct insurance but whose claims, such as those of the applicants as insurers of third party policy holders, are asserted as recourse claims, in the widest sense, directly against the supervised direct insurance undertaking, in the sense that the competent authority, such as, here, the defendant, has to exercise supervisory measures, which it must carry out under the directives cited, also in the interests of these creditors and on infringement of the corresponding obligations it is liable to the creditors for resulting losses.

2. Does the national implementation of the provisions of EEA law cited in Question 1 [corrected from the original: Question 4] by the national provisions of Article 1 of the Act of 6 December 1995 on the Supervision of Insurance Undertakings (Insurance Supervisory Act 1995(Versicherungsaufsichtsgesetz; VersAG alt)), Article 1(2) of the Act of 12 June 2015 on the Supervision of Insurance Undertakings (Insurance Supervisory Act 2015(Versicherungsaufsichtsgesetz; VersAG neu)) and Article 4 of the Act of 18 June 2004 on the Financial Market Authority (Financial Market Authority Act (Finanzmarktaufsichtsgesetz; FMAG)) fulfil the requirements for implementation and thus for its application and interpretation by national courts in the sense of such legal bases referred to in the case-law of the EFTA Court such as those required, inter alia, in Case E-3/15 Liechtensteinische Gesellschaft für Umweltschutz, paragraphs 33 et seq. and 74?

Cited (recent) case-law: E-3/15 Liechtensteinische Gesellschaft für Umweltschutz;

Policy Area: JenV; FIN