Transparency in the Insurance Contract Law of Poland

Please see for reference: Polish Language Dictionary: https://​sjp.​pwn.​pl/​szukaj/​transparentny.​html.

Please see for reference: Polish Language Dictionary: https://​sjp.​pwn.​pl/​szukaj/​przejrzysty.​html.

Please see as an example: Ulusoy (2012), s. 39.

Available at: http://​www.​investopedia.​com/​terms/​t/​transparency.​asp#ixzz3eOfkpk65

This concept has been analysed in depth in insurance context by Professor Wandt (2014). Definition of transparency in insurance contract includes three main prerequisites, i.e.: compherensive, clear, unambigious; See also the context analysed by Maśniak (2014).

Please see, for example, the Polish Supreme Court verdicts dated 16.09.2016 (IV CSK 711/15), Legalis no. 1716875 (on the interpretation of the unclear contractual provisions); dated 06.02.2015 (II CSK 295/14), Legalis no. 1187394 (on the interpretation of the contractual provisions).

It can also be understood in a broader sense, such as information obligations of the insurers regarding capital requirements and risk management, including information reports provided to the Polish Financial Supervisory Authority, please see: E. Kalińska, Wypełnianie nowych formularzy do sprawozdań może być kłopotliwe, http://​www.​gu.​com.​pl/​in-dex.​php?​option=​com_​content&​view=​article&​id=​53575:​wypenianie-nowych-formularzy-do-sprawoz- da-moe-by-kopotliwe&catid=129:rynek-ubezpieczeniowy&Itemid=151; Ostrowska, (2014).

For example the so called „Transparency Directive” regulating the procedure on providing information in relation to the information society; Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (O.J. EU L 204 dated 21.07.1998, s. 37. See as well Working Paper: Online services, including e-commerce, in the Single Market; Commission Staff Working Document Online Services, Including E-Commerce, In The Single Market Accompanying The Document Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions A coherent framework to boost confidence in the Digital Single Market of e-commerce And other online services {COM(2011) 942 final} {SEC(2011) 1640 final, http://​ec.​europa.​eu/​internal_​market/​e-commerce/​docs/​communication201​2/​SEC2011_​1641_​en.​pdf.

For example: E. Kiziewicz, Zasada transparentności a ogólne warunki ubezpieczeń, dostęp: http://​www.​rzu.​gov.​pl/​publikacje/​artykuly-pracownikow-i-wspolpracownikow​/​Ewa_​Kiziewicz_​-_​Zasada_​transparentnosc_​a_​ogolne_​warunki_​ubezpieczen_​_​132; M. Łuczyński, Rekomendacja dobrych praktyk informacyjnych dotyczących ubezpieczeń na życie związanych z ubezpieczeniowymi funduszami kapitałowymi – element budowy nowoczesnego rynku ubezpieczeń na życie, Wiadomości Ubezpieczeniowe, numer specjalny 3/2013.

Herman Cousy (2002), pp. 111–128; Malinowska (2008), s. 62

Act dated 23 April 1964 the Civil Code (uniform text: O.J. 2018 item 1025, as amended).

Act dated 11 September 2015 on Insurance and Reinsurance Activity (uniform text: O.J. 2018, item 999).

Act dated 15 December 2017 on Insurance Distribution (O.J. 2018, item 2210, as amended).

Act dated 13 April 2007 on the amendments to the Civil Code and some other acts (O.J. No 82, item 557).

Article 815 § 1 of the PCC.

Article 815 § 2 of the PCC; see more in Malinowska (2015).

According to the current wording of the article 811 § 1 of the PCC, if in response to an offer which has been made, the insurer delivers to the insuring party an insurance document containing provisions which differ to the latter’s disadvantage from the content of the offer made by him, the insurer shall be obliged to draw the insuring party’s attention to it in writing at the delivery of that document, setting him a period of at least seven days to raise an objection. In the case of failure to comply with this duty, the changes made to the insuring party’s disadvantage shall not be effective and the contract has been concluded according to the offer’s conditions. According to its § 2, in the absence of any objection, the contract shall be effective in accordance with the content of the insurance document on the following day after the lapse of the time limit set to file the objection.

Act on Insurance Activity dated 28 July 1990, compelled on 1 January 2004, where a new Act on Insurance Activity, implementing the third generation of the insurance directive entered into force.

Article 6 of the 1990 Act.

Act on Insurance Activity dated 22 May 2003 (O.J. 2003, No 124, item 1151, as amended).

Article 12a of the 2003 Act.

The above rules have been repeated in Article 25 of the AIRA, the act that replaced the 2003 Act.

Article 13 of 2003 Act.

Article 805 § 4 in wording of the Act dated 13 April 2007 on amending the PCC (J.O. No 82, item 557).

According to article 22 (1) of the PCC: A consumer shall be deemed to be any natural person who performs acts in law with an entrepreneur, said acts not being directly connected with his economic or professional activity.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95, 21.4.1993.

Article 385¹ § 3 of the PCC.

Act dated 2 March 2000 on protection of some rights of the consumers and product liability, (O.J. 2000, No 22, item 271 as amended).

For further information please also see for example: Tarasiuk-Flodrowska (2014), s. 31–40.

Currently: Commission for Financial Supervision.

Office of the Commission on Supervision of Insurance and Pension Funds, Irregularities in the General Insurance Terms and Conditions, Department of the Communication and European Integration, Warsaw, 2005, p. 4.

Office of the Commission on Supervision of Insurance and Pension Funds, Irregularities in the General Insurance Terms and Conditions, Department of the Communication and European Integration, Warsaw, 2005, p. 9.

Office of the Commission on Supervision of Insurance and Pension Funds, Irregularities in the General Insurance Terms and Conditions, Department of the Communication and European Integration, Warsaw, 2005, p. 12 f.

Office of the Commission on Supervision of Insurance and Pension Funds, Irregularities in the General Insurance Terms and Conditions, Department of the Communication and European Integration, Warsaw, 2005, p. 23.

Office for Consumer and Competition Protection, Consumer Politics Department; Report of the control of the general terms applied by the insurers; Warsaw, September 2006.

Office for Consumer and Competition Protection, Consumer Politics Department; Report of the control of the general terms applied in life insurance; Warsaw, January 2010.

There were 65 insurers and 1 main branch in Poland as of the end of 2009.

Office for Consumer and Competition Protection, Consumer Politics Department; Report of the control of the general terms applied in life insurance; Warsaw, January 2010, p. 10.

Decision of SOKiK dated 23 January 2012 (XVII AmC 977/11), http://​orzeczenia.​warszawa.​so.​gov.​pl/​details/​$N/​154505000005127_​XVII_​AmC_​000977_​2011_​Uz_​2012-01-23_​001.

Decision of the Supreme Court—Civil Chamber dated 28 March 2007 r. (II CNP 124/06).

Decision of the Supreme Court—Civil Chamber dated 12 January 2007 r. (IV CSK 307/06).

Decision of the Supreme Court—Civil Division, dated 2 December 2011 r.; III CSK 55/11.

This was further confirmed by the decision of the Supreme Court, Civil Division, dated 10 February 2016, I CSK 1/15; Please also see: Decision of the Court of Appeal in Warsaw, I Civil Division dated 24 October 2013 r., I ACa 535/13 or Decision of the Supreme Court—Civil Division, dated 15 February 2013 r., I CSK 313/12.

Recommendation U regarding good practices in respect of bancassurance, issued for banks in June 2014 by the Commission for Financial Supervision http://​www.​knf.​gov.​pl/​Images/​Rekomendacja_​U_​tcm75-38338.​pdf (access on: 2 March 2016) and Guidelines for insurance companies regarding distribution of insurance, issued in June 2014 by the Commission for Financial Supervision.

See: A. Tarasiuk – Flodrowska, Bancassurance on the EU market – specificalities of the Polish Law, Evropska Revija za Pravo Osiguranje/European Insurance Law Review 4/2011, pp. 6–12, M. Więcko-Tułowiecka, Challenges of the Payment Protection Insurance Market – Analysis of European Tendencies in the Context of the Need for Legal Actions in Poland, Prawo Asekuracyjne, 1/2017, pp. 61–72.

Commission for Financial Supervision, Guidelines for insurance companies regarding distribution of insurance, 24 June 2014.

Guideline 11.1.

Guideline 9.5.

The following should be included: (1) type of insurance and subject thereof; (2) terms of amending the sum insured or guarantee sum, if applicable; (3) rights and obligations of the parties to insurance contract; (4) scope of insurer’s coverage; (5) manner of calculating the amount of claim—in non-life insurance; (6) manner of calculating the sum to be paid—if insurance terms provide for a difference from general rules; (7) method of calculating and payment of the insurance premium; (8) method of indexing the insurance premium if applicable; (9) conditions of changing the insurance contract concluded for indefinite period of time; (10) prerequisites, manner and time for termination the insurance contract if applicable as well as resignation from the group insurance by the insured; (11) terms and manner of withdrawing from the insurance contract.

For further reference please see for example: M. Orlicki, Znaczenie prawne informacji o istotnych elementach wzorca umowy w świetle art. 17 ustawy o działalności ubezpieczeniowej i reasekuracyjnej, Prawo Asekuracyjne, 1/2017, pp. 3–12.

References to the following provisions need to be presented (1) the prerequisites of payment of compensation and other benefits or surrender values of insurance; (2) the limitations and exclusions of liability of the insurance company allowing for refusal to pay the compensation and other benefits or their reduction; (3) costs and any other charges being deducted from insurance premiums, from the assets of the insurance capital funds or through redemption of units of insurance capital funds; (4) the surrender value of the insurance in particular periods of the insurance cover as well as the period in which a claim for payment of the surrender value is not possible.

Regulation dated 16 December 2015 of the Minister or Finance regarding information provided in the general contractual terms used by insurance companies (O.J. 2015, item 2189).

Please see letter of the President of the Polish Financial Supervisory Authority dated 04.04.2017 regarding presentation of the general insurance terms and conditions on the websites of the insurers; https://​www.​knf.​gov.​pl/​knf/​pl/​komponenty/​img/​stanowisko_​UKNF_​publikacja_​OWU_​przez_​ZU_​4_​04_​2017_​50687.​pdf.

Except for the detailed regulations regarding the compulsory insurances as provided in the Regulation of the Minister of Finance dated 13 June 2012 on the manner and scope of the document confirming the conclusion of the compulsory insurance contract (O.J. 2012, item 838); please also see another exception referred to in Article 215 of the AIRA.

Please see Act dated 29 September 1994 on Accountancy (uniform text O.J. 2018, item 395, as amended), Article 21.

The minimum content includes: (1) the address of the foreign insurer (in case of a branch—the address of the branch); (2) the place of concluding the insurance contract, (3) the court competent to resolve the disputes between the insurer and the policyholder, (4) the date of concluding the insurance contract and the insurance period, (5) the subject of the insurance contract and the terms of its performance, (6) the parties to the insurance contract (the policyholder and the insurer), (7) the amount of the insurance premium, (8) details of the insurance terms on the basis of which the insurance contract has been concluded, and confirmation of delivery thereof to the policyholder, (9) the name and address of the representative of the insurer dealing with the claims.

According to Article 3 point 6) of the AIRA, the large risks are the risks referred to in II Division of the Attachment to the AIRA, namely: (a) groups 4–7, 11 and 12, (b) groups 14 and 15—in case the policyholder is an entrepreneur or a freelancer and the risk is connected with such activity, (c) in groups 3, 8, 9, 10, 13 and 16—if the policyholder exceeds at least two of the following thresholds in the financial year: the sum of assets in the balance sheet in PLN equal to 6.2 mln euro, total net income from sale of goods and services as well as financial operations in PLN equal to 12.8 mln euro, average annual employment in full-time equivalents amounts to 250 people.

Please see Article 21–22 of the AIRA; also, from the point of view of the EU regulations please also see: Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (O.J. L 352/1).

Please see as an example Article 17 sec. 2 and 18 sec. 4 of the AIRA.

Act dated 30 May 2014 on Consumer Rights (uniform text: O.J. 2017 item 683).

According to Article 22¹ of the PCC, the consumer shall be deemed to be any natural person who performs acts in law with an entrepreneur, the said acts not being directly connected with his economic or professional activity.

In accordance with the Article 40 of the Act, the consumer has the right of withdrawing for any reason from the financial services contract concluded at a distance within 14 days as from its conclusion, or from receiving the information on this right. In case of insurance contract, the right of withdrawal can be executed within 30 days from the day of receiving information on concluding the contract or informing the consumer on the right of withdrawal. These provisions co-exist with the provisions of the PCC, Article 812 § 4, which applies to all policyholders, regardless their consumer status, if only the insurance contract has been concluded for the period exceeding 6 months and the only division concerning the deadline for executing the withdrawal, where entrepreneurs should effect it within 7 days and the natural persons within 30 days from the moment of concluding the contract. That is why, it seems that the regulation of the Act on consumer rights has a limited impact on insurance contracts and mostly is used to the short-term travel and similar insurance.

Act dated 23 August 2007 on counteracting unfair market practices (uniform text: O.J. 2017, item 2070).

Directive 2005/29/EC Of The European Parliament And Of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), O.J. no L 149/22.

Article 6 of the Act on unfair practices.

Please see for example decisions of the District Court in Warsaw dated 22 January 2015 (XXV C 430/12), Decision of the District Court in Warsaw dated 28 June 2012 (XVII AmA 58/11), Decision of the District Court in Warsaw dated 29 December 2014 (XXIV C 828/13), Decision of the Supreme Court dated 28 September 2018 (I CSK 179/18).

Act dated 16 February 2007 on Competition and Consumer Protection, (uniform text: O.J. 2018, item 798).

Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution, OJ L 26/19, pp. 19–59.

Please see Article 17 of the IDD.

According to Article 2 sec. 1 point (8) of the IDD, an insurance distributor means any insurance intermediary, ancillary insurance intermediary or insurance undertaking. According to Article 2 sec. 1 point (3) of the IDD, an insurance intermediary means any natural or legal person, other than an insurance or reinsurance undertaking or their employees and other than an ancillary insurance intermediary, who, takes up or pursues the activity of insurance distribution in exchange of a remuneration.

Please see Article 19 of the IDD.

Please see recital 40 of the IDD.

Please see recital 41 of the IDD.

Please see recital 46 of the IDD.

Please see Article 17 sec. 3 of the IDD.

Please see Article 19 sec. 2–5 of the IDD.

Such information must include:

Understood as acting in the name and for the client.

Understood as acting in the name and for the insurer.

Please see for example: Maśniak (2014); Consultation document on the Review of the Insurance Mediation Directive (IMD) Commission Staff Working Paper, s. 9, Bruno Geiringer, IMD2: the review of the Insurance mediation Directive, http://​www.​out-law.​com/​page-11652, s. 3; D. Maśniak, K. Malinowska, Czynności dystrybucyjne w nowym reżimie zawierania umów ubezpieczenia – wybrane aspekty implementacji dyrektywy nr 2016/97 w sprawie dystrybucji ubezpieczeń, Prawo Asekuracyjne 2/2017.

The Polish AID implemented the IDD in its minimum form, i.e. by introducing the requirement to reveal character of the remuneration, but not its amount. No ban on broker’s commission has been even discussed; Please see: Malinowska (2016), pp. 89–101.

Commission Delegated Regulation (EU) 2017/653 of 8 March 2017 supplementing Regulation (EU) No 1286/2014 of the European Parliament and of the Council on key information documents for packaged retail and insurance-based investment products (PRIIPs) by laying down regulatory technical standards with regard to the presentation, content, review and revision of key information documents and the conditions for fulfilling the requirement to provide such documents, C/2017/1473, OJ L 100, 12.4.2017, pp. 1–52.