Main regulatory and case law developments in the insurance sector (2022)

A compilation of the insurance sector?s main regulatory developments and landmark judgments in 2022.

ÍNDICE

INSURANCE CASE LAW 2022

I.  GENERAL ISSUES

1. Clauses restricting, limiting and detrimental to the rights of the insured (Article 3 of the LCS)

2. Declaration of the insured risk (Article 10 of the LCS)

3. Aggravation of the insured risk (Article 11 of the LCS)

4. Payment of the premium (Article 15 of the LCS)

5. Default interest (Article 20 of the LCS)

6. Limitation of actions (Article 23 of the LCS)

II.  NON-LIFE INSURANCE

1. Clauses restricting, limiting and detrimental to the rights of the insured (Article 3 of the LCS)

2. Insured interest (Article 25 of the LCS)

3. Subrogation action (Article 43 of the LCS)

4. Surety insurance (Article 68 of the LCS)

5. General liability insurance (Articles 73 and 74 of the LCS)

6. Motor vehicle liability insurance

7. Direct action (Article 76 of the LCS)

III.  PERSONAL INSURANCE

1. Clauses restricting, limiting and detrimental to the rights of the insured (Article 3 of the LCS)

2. Declaration of the risk (Article 10 of the LCS)

3. Injured third party and direct action (Article 76 of the LCS)

4. Life insurance (Articles 83 to 99 of the LCS)

5. Accident insurance (Articles 100 to 104 of the LCS)

6. Sickness and health insurance (Articles 105 and 106 of the LCS)

IV.  COVID-19 SPECIAL

1. Coverage for loss of profits due to business closure

2. Other pandemic-related litigation

V.  TAX

1. Personal income tax

2. Value-Added Tax

VI.  DATA PROTECTION

1. The Supreme Court finds against a publishing house for publishing personal data of the beneficiary of an accident policy in a news article

2. The Spanish Data Protection Agency concludes that an insurance company is liable for the failure of one of its insurance agents to comply with the right to deletion 73

3. An insurer is not in breach of data protection regulations for consulting a credit rating system when asked for an insurance quote

4. An insurer was penalised for repeatedly sending advertising without a legitimate basis, and for failing to cooperate with the insurance agent in the exercise of the data subject’s rights

VII.  LITIGATION

1. The Brussels I Regulation permits forum actoris in insurance matters under certain conditions

2. It is appropriate to review the final judgment in the civil jurisdiction when it is based on false testimony about the circumstances of the accident

3. The Supreme Court affirms that civil jurisdiction cannot be used in the event that the contentious-administrative jurisdiction proves unsuccessful for the injured third party

4. There is no non-contractual liability in cases where, by virtue of the theory of risk and the prohibition of return, it is not possible to establish a causal link between the risk caused and the damage caused

VIII.  INSURANCE DISTRIBUTION

1. The improper policyholder must provide pre-contractual information to policyholders in unit-linked group insurance, although failure to do so is not automatically sanctioned by the nullity of the contract

2. The CJEU narrows the concept of insurance distribution

3. The Supreme Court found an insurance company vicariously liable for the offences committed by a former agent without its knowledge

4. Mutual Social Security insurance companies may not charge the costs for the remuneration of employees who manage the contributions of the same group of companies or who are insurance intermediaries

5. The defining factor for determining whether an insurance intermediary has the status of an employee or self-employed person is the nature of the intermediary relationship

6. A breach of the prohibition on promoting a change of insurer by an insurance agent must be based on evidence, not mere estimates or indications

IX.  OTHER AREAS

1. The principle of proximate causation prevails in the exclusion of coverage in a maritime insurance policy due to the absence of legally required documents under Article 756. 7. º of the Commercial Code

2. The effects of an insurance company’s liquidation proceedings on an insured person’s outstanding legal claim are governed by the law of the Member State in which the claim is pending and not by the law of the insurer’s home Member State

3. An insurer is liable for the civil liability ex delicto of its exclusive agent even if the fraud is not carried out with an official insurance product, by application of the theory of appearance

4. An insurance company is civilly liable for the offences of misappropriation and fraud committed by an exclusive agent

5. Registration of a trademark was refused on the ground of phonetic similarity to the trademark of a well-known insurance company

6. The claim brought by a property developer against a ten-year insurance cartel was dismissed after it was established that the developer passed on the excess costs in full to its customers

7. There is no unfair competition or abuse of a dominant position when an insurer terminates a service contract with a doctor and subsequently offers him a new contract with less favourable conditions to provide medical care in its own facility

8. Doubts about the viability of an offer in an insurance tender must be resolved by the Solvency II solvency reports

REGULATION AND SUPERVISION

I.  SOLVENCY II

1. Commission Regulation (EU) 2022/1491 of 8 September 2022 amending Regulation (EC) No.  1126/2008 as regards International Financial Reporting Standard 17 (insurance contracts)

2. EIOPA Follow-up Report of 12 October 2022 on the peer review on the assessment of the suitability of the members of the administrative, management and supervisory bodies and of the qualified shareholders (EIOPA-Bos-22/437)

3. Resolution of 23 May 2022 of the Directorate General of Insurance and Pension Funds, publishing the revised Guidelines of the European Insurance and Occupational Pensions Authority on contractual limits

4. Resolution of 17 June 2022 of the Directorate General of Insurance and Pension Funds, which publishes the update of the amounts contained in Articles 11 and 78 of Law 20/2015, of 14 July, on the regulation, supervision and solvency of insurance and reinsurance

5. Resolution of 6 September 2022 of the Directorate General of Insurance and Pension Funds, publishing the revised Guidelines of the European Insurance and Occupational Pensions Authority on contractual limits

II.  DISTRIBUTION OF INSURANCE AND REINSURANCE

1. EIOPA Guidelines of 20 July 2022 on integrating customer sustainability preferences into the suitability assessment in the framework of the IDD

2. EIOPA Notice of 4 October 2022 to insurers and credit institutions for the protection of consumers in the distribution of credit protection insurance contracts

3. DGSFP Notice of 24 October 2022 for insurers and bancassurance operators distributing credit protection insurance contracts

III.  OTHER AREAS

1. Order ETD/374/2022 of 25 April establishing the system of reinsurance to be provided by the Insurance Compensation Consortium for civil liability for nuclear damage

2. Order ETD/949/2022, of 29 September, which updates the actuarial technical bases that support the calculations of the system for the appraisal of loss and damage caused to persons in traffic accidents contained in the annex to the revised text of the Law on civil liability and insurance in the use of motor vehicles, approved by Royal Legislative Decree 8/2004, of 29 October

3. Explanatory note of the DGSFP of 14 December 2022 on compensation and penalties in the event of failures in the liquidation of assets affecting pension funds

4. EIOPA response statement of 6 May 2022 to the discussion paper on blockchain and smart contracts in insurance (EIOPA-BoS-22-178)

5. EIOPA response statement of 15 June 2022 to the discussion paper on open insurance: accessing and sharing insurance data (EIOPA-BoS-22-297)