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Deadlines: Motivation ministry: 30 April 2019 Written observations: 12 June 2019 (ultimate deadline)
Keywords : insurance; insolvency
- 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;
Facts of the case:
G Insurance AG is a company under Liechtenstein law with its seat in Vaduz, which was granted a licence by the Liechtenstein Financial Market Authority (Finanzmarktaufsicht) as a direct insurance undertaking for the pursuit of non-life insurance activities. By order of 17.11.2016 of the Princely Court, sitting as an insolvency court, insolvency proceedings were opened in relation to G Insurance AG. G Insurance AG pursued non-life insurance business in Germany, Denmark, Spain, France, Ireland, Iceland, Italy, Norway, and the UK. In Liechtenstein itself, G Insurance AG did not sell any insurance. G Insurance AG did not sell any life insurance. At the time the insolvency proceedings were opened in November 2016, an estimated 130.000 insurance policies were in force. Despite the cancellation of all of G Insurance AG's insurance contracts four weeks after the insolvency proceedings were opened (in accordance with the legislation), new claims are being notified continually, as the event giving rise to the loss/damage took place before the opening of the insolvency proceedings (asbestos cases, compulsory professional indemnity insurance for latent defects), but the loss or damage did not occur until after the insolvency proceedings had been opened. Until the questions set out in this order have been clarified by the EFTA Court, the insolvency proceedings can to a substantial extent not be continued or closed, no payments can be made in relation to insurance claims that have been admitted and the high costs of administering the insolvency proceedings (approx. EUR 5 million annually) reduce almost on a daily basis the percentage that the insurance creditors will recover.
Request for an advisory opinion:
1. The first question concerns the interpretation of the term ‘insurance claim’ provided for in Article 268(1)(g) of Directive 2009/138/EC.
(a) What criteria are to be applied in order to determine whether some elements of the debt are not yet known?
(b) Must a claim, at least in principle, have arisen, been admitted and/or lodged before the opening of insolvency proceedings (or, alternatively, before the cancellation of the insurance contracts as a result of the opening of winding-up proceedings) in order to be treated as an insurance claim? If not, the following question arises:
(c) Does Directive 2009/138/EC provide for a temporal limit on the possibility for insurance claims to arise after the opening of insolvency proceedings in order to prevent the continued postponement of the drawing up of the final account and distribution to the creditors by a reason of a constant lodging of new claims, or, alternatively, how does Directive 2009/138/EC deal with indeterminate debts of that kind?
(d) Does the phrase ‘... or cancellation ...’ mean that only those premiums owed [by an insurance undertaking] as a result of the cancellation of a contract before the opening of the winding-up proceedings shall be regarded as insurance claims or does it also constitute an insurance claim where the premium is owed by the insurance undertaking as a result of the cancellation of a contract after the opening of the winding-up proceedings?
2. The second question concerns the interpretation of the term ‘windingup proceedings’ provided for in Article 268(1)(d) of Directive 2009/138/EC. Must this provision be interpreted as meaning that a judicial composition in relation to (individual) insurance claims is possible also independently of, or contrary to, national procedural rules governing winding-up proceedings and, if so, what requirements specific to the Directive must be satisfied for a composition to be reached?
3. The third question concerns the relationship between Article 275(1)(a) and Article 274(2)(g) of Directive 2009/138/EC. Does Article 275(1)(a) preclude a national rule implementing Article 274(2)(g), in other words, on the lodging, verification and admission of claims, that results in insurance creditors being treated unequally?
Cited (recent) case-law:
Policy area: JenV