Legal and Economic Aspects of Co-Opetition Among Insurance Brokers: The Polish Case

Co-opetition, a situation with simultaneous collaboration and competition, was coined by (Brandenburger & Nalebuff, 1996) and has gained significant interest in management science and come with diverse definitions(Koszarna, 2022). In this article, the authors use a narrow approach, hence the collaboration of competitors (Bengtsson & Kock, 1999). However, there are still plenty of options available. For example, this strategy could be planned within the company (Czakon, 2018) or forced by outside factors such as the client (Wiener & Saunders, 2014). It brings competitors of the same size (Gnyawali & Park, 2011) or the opposite (Hora i in., 2018). Finally, it is an intentional strategy (Luo, 2007) or an ad hoc solution (Pattinson i in., 2018).

The insurance market is one of the potential choices when exemplifying co-opetition, the UK and Germany are worth mentioning in this regard. This unique form of collaboration among competitors could have specific aims (Gnyawali i in., 2006):

While co-opetition in the insurance market offers significant benefits, it also presents its own set of challenges. These include trust issues, complex relationships, and intellectual property concerns.

Most examples of co-opetition in the insurance market are among insurers, especially within coinsurance or consortia, to cover specific risks. It is crucial to understand the European legal framework, particularly the Insurance Block Exemption Regulation and its expiration on 31 March 2017. This regulation allowed relatively broad collaboration, typically considered an anti-competition practice. However, the Horizontal Block Exemption Regulations have allowed the joint creation and distribution of compilations, tables, and studies within research and development agreements, an important aspect to consider.

However, co-opetition is not limited to insurance companies. Intermediaries also take advantage of this opportunity. In this article, the authors analyze insurance brokers. As the legal framework mostly depends on local legislation, the authors chose Poland as the major field of interest. Poland is also an example of a significant and developing insurance market.

Insurance brokers are next to insurance agents (including agents offering additional insurance) and are at the core of the Polish insurance intermediaries market. Polish Insurance Distribution Act of December 15, 2017 (Insurance Distribution Act – IDA) defines insurance mediation as the performance of insurance distribution or reinsurance distribution by insurance intermediaries. The total number of registered (by the Polish Financial Supervision Authority – UKNF) brokers as of December 31, 2022, was 1,478, of which 1,420 entities conducted insurance activities and only 58 conducted reinsurance activities (UKNF, 2024). Employment in the insurance brokerage market 2022 amounted to 6,985 people, including 4,307 people performing brokerage activities and 2,678 employees not involved in brokerage activities (UKNF, 2024). Article 3 point 5) of IDA defines an insurance broker as a natural person or a legal person with a permit issued by a supervisory body (already mentioned by the Financial Supervision Commission) to perform brokerage activities in the insurance field entered in the brokers register. An insurance broker performs activities in insurance distribution on behalf of or for the client’s benefit (referred to in IDA as “insurance brokerage activities”).

Insurance broker – as any other insurance distributor – has an obligation (before concluding an insurance contract or an insurance guarantee contract) to determine, based on information obtained from the client, its demands and needs and provide objective information about the insurance product in an understandable form to enable the client to make an informed decision (art. 8 par. 1 of IDA). Additionally, insurance brokers – according to Art. 32 par 1 point 4 of IDA - provides advice based on reliable analysis of the insurance products available on the market in a number sufficient to develop a recommendation for the most appropriate contract and explains the grounds on which the recommendation is based, taking into account the complexity of the insurance contract or insurance guarantee contract and the type of client, unless the client submits a declaration of withdrawal from the provision of advice in documentary form (so-called insurance broker’s recommendation – Malinowska, 2018; Ziemiak, 2019). A broker recommendation should be provided before concluding an insurance contract and, as a rule, in each case, also when dealing with compulsory insurance or renewal of insurance on the existing terms and conditions (Urbańczyk, 2024). As a result, according to IDA the insurance broker is burdened with the most extensive and comprehensive obligation of advising the client.

It must be noted that Polish legislation does not include any specific provisions on cooperation among insurance brokers. Fundamental to the operations of insurance brokers, IDA not even once mentions the terms “cooperation” or “collaboration” in the said scope. Hence, the forms and the legal framework of such cooperation were shaped by market practice and - to some extent - by jurisprudence (especially regarding the division of brokers’ remuneration between cooperating parties). It is safe to say that every form of such cooperation must conform to regulations on entrepreneurs’ corporations that are common to every business entity performing economic activity in Poland. Those include in particular:

Additionally, regardless of the type, each manifestation of cooperation between insurance brokers should first consider the general principle arising from art. 17.1 of IDD is to act honestly, fairly and professionally in accordance with customers’ best interests. Finally – as stated in recital 16 of IDD – member states should promote a level playing field and competition on equal terms between intermediaries, whether or not they are tied to an insurance undertaking. According to IDD, there is a benefit to consumers if insurance products are distributed through different channels and through intermediaries with different forms of cooperation with insurance undertakings, provided that they are required to apply similar rules on consumer protection.

The contract of the consortium is not directly regulated by provisions of Polish law. Only a few acts mention consortiums as a means of possible business cooperation. The term “consortium” does not define a legal entity but a group of independent entities - parties to the consortium agreement, which forms an obligatory relationship, not an organizational one. Therefore, the consortium has no legal personality, is not a separate business entity conducting independent business, and cannot be the subject of rights and obligations (judgment of the Provincial Administrative Court in Opole of October 27, 2011, II SA/Op 296/2011). For example, art. 73 of the 1997 Banking Law states that to grant a loan jointly, banks may agree to establish a banking consortium. The conditions for granting the loan and its security and designate the bank authorized to conclude the loan agreement must be established in the agreement. Banks bear the risk related to the loan granted in proportion to the financial resources contributed to the jointly granted loan. The Supreme Court acknowledged that the purpose of a bank loan agreement is to place funds at the borrower’s disposal, and by doing so, the bank, in exchange for the interest and commission profit specified in the agreement, also agrees to bear a specific risk. The same assumption lies in the purpose of the banking consortium agreement, in which the participating banks aim to share (and consequently reduce) the economic risk associated with the loan agreement. The claim that one of the consortium members sought to guarantee the other not to bear credit risk must be perceived as contrary to the essence and, therefore, the nature (nature) of the consortium agreement (judgment of the Supreme Court of December 15, 2005, V CK 425/05). Similar solutions can be found in the 2004 Act on Healthcare Care Services, financed from public funds. Article 132a gives the possibility of setting up a consortium of healthcare providers. Healthcare providers may jointly apply for the conclusion and performance of a contract to provide health care services, the subject of which is the provision of health care services. In such cases, healthcare providers appoint a representative to represent them in the proceedings for the provision of healthcare services and the conclusion of an agreement. Healthcare providers are jointly and severally liable for the performance of the contract to provide healthcare services. The above examples were not given without a particular purpose, as they reflect Polish jurisprudence on consortium agreements. In the judgment of March 6, 2015 (III CZP 113/14) as well as of July 6, 2018 (II CSK 562/17), the Supreme Court explained that “joint venture” agreements cover various forms of economic cooperation. The consortium belongs to those organizations of entrepreneurs, shaped in the practice of trade, which are established to achieve a common economic goal, but do not constitute separate legal entities and do not have legal personality, the basis for their establishment is a joint operation agreement (so-called consortium), when concluding it, the parties, to a wide extent, taking into account individual needs and the nature of the project, exercise contractual freedom and are not bound by the requirement to maintain a uniform organizational and legal form (article 3531 of the Civil Code). Hence, consortiums generally have a temporary existence because they are established to implement one or several tasks based on the principle of common benefits and risks. One of the divisions of these organizations, developed in the doctrine but useful in practice, distinguishes external consortiums, including those that are open to third parties (basically, everyone acts in a common name and under common responsibility, but it is possible to grant a power of attorney to one of the members, and the leading participant of the consortium may act as a leader) or secret (members are connected only by an internal bond, one entity acts externally on its own behalf and as an indirect deputy), or internal, whose function is limited to coordinating the activities of individual participants acting independently. In this decision, the Supreme Court emphasized that the diversity of factual and legal situations prevents a uniform legal classification of the consortium. In other judgments (judgments of November 20, 2014, V CSK 177/14 or of July 9, 2015, I CSK 353/14), the Supreme Court emphasized that the cooperation of contractors seeking to be awarded a public contract and jointly, this order is usually not strict enough to take the form of a civil partnership, Recognizing a specific consortium agreement as a civil partnership agreement is only possible if all the structural features of a civil partnership agreement can be seen in it. Consequently, the appropriate application of the provisions on a civil partnership to a specific consortium agreement requires taking into account the essence of the legal relationship under this agreement and possible differences between the essential elements of this relationship and the elements of the code-type civil partnership agreement. Accordingly, also other courts consider a consortium as an unnamed agreement that creates an obligatory relationship in which each of its members (consortium members) undertakes to participate in a specific manner in the consortium and to act in a specific manner for it, and thus for the benefit of the other consortium members, to achieve the purpose for which the agreement was concluded (judgment of Court of Appeal in Warsaw od July 18, 2019, V ACa 535/18 or of June 7, 2018, V ACa 1439/17).

The consortium agreement was not regulated in the Civil Code or comprehensively included in any other normative act. Still, it was shaped by practice as a response to the demand of economic transactions for the existence of an agreement with specific properties. The basis for establishing a consortium is an agreement on joint action of independently and autonomously acting partners. When concluding it, the parties, to a wide extent, taking into account individual needs and the nature of the project, enjoy contractual freedom and are not bound by the requirement to maintain a uniform organizational and legal form. Neither the doctrine nor the jurisprudence has developed a uniform legal description of the consortium agreement, nor has there been a precise assessment of the effects of its conclusion. It is assumed that a consortium is a contractual legal relationship aimed at cooperation to implement a specific economic project, and its structure is most similar to a civil partnership agreement. As a rule, the cooperation is temporary, the nature of the representation is different, and there is no extensive bond organizational structure or joint property. Since there are neither specific rules nor legal patterns designed specifically for insurance brokers’ consortium agreements, it is clear that all remarks on the general concept of consortium agreement under Polish law also apply to two business cooperation models of Polish insurance brokers.

Regarding cooperation contracts other than a consortium, their nature and scope vary depending on the extent of agreed cooperation. First, to said contracts, provisions on mandate shall apply respectively (art. 750 of the Civil Code). The provisions relating to contracts for the provision of services to which the provisions on mandate apply accordingly - broadly speaking - indicate that the subject of these contracts is the performance or execution of activities for another person (persons) and in his (their) interest, which consists in an obligation to act diligently - which is associated with the lack of agreement on the obligation to achieve a precisely defined, future, spontaneous material or materially embodied result, considered as a criterion for the proper fulfilment of the main performance by the service provider (hence, it is an agreement of diligent action, not a result) - and also on the personal performance of the service by the contractor (service recipient; contractor), and - as a rule - the contract is based on special trust in the service provider (judgment of the Supreme Administrative Court of August 17, 2023, II GSK 852/20). Additionally, as cooperation contracts often contain elements of intermediation in acquiring clients, the provisions on the agency contract also apply here. Second, it is possible to point out fundamental reasons for the conclusion of ad hoc cooperation agreements, which preferably are:

However, it must be noted that at least to some extent, ad hoc corporation agreements are also used on the Polish market as a “substitute” of employment contracts, especially in situations where one party is a natural person (and an insurance broker entered into the registry of insurance intermediators kept by Polish Financial Supervision Commission) and the other one is a company. Even though it encompasses the above-mentioned aims, insurance brokers often choose this specific type of contract to optimize tax and social security burdens. Nevertheless, the provision of said services between insurance brokers may be the subject of mandate contracts and employment contracts. This does not mean the employer is free to choose the employment basis. Such a choice is not arbitrary, as it cannot ignore the systemic and generic differences between the mandate and employment contracts. An employment contract and a mandate contract differ significantly. We cannot limit ourselves to the interpretation that a mandate contract may contain features of management and subordination, although not the same as those inherent in the employment relationship (Article 22 § 1 and § 11 of the Labor Code and Art. 750 of the Civil Code). Of decisive importance in the process of distinguishing the nature of the legal relationship between the parties (the employing entity and the employed entity) is the manner of performing the contract, and in particular, the implementation by the contractors - even contrary to the contractual provisions - of the features that characterize an employment contract. This also reflects the fundamental difference between an employment relationship and a mandate contract. It results directly from the Labor Code and art. 750 of the Civil Code. The employment relationship is part of a broader concept of employment, but the subordination of the employee to the employer’s management and the performance of work in the place and at the time designated by the employer (agreed with the employer) is the distinguishing feature of employee employment (employment relationship) - art. 22 of the Labour Code. The subject of the mandate contract is a service that is not regulated by other provisions (art. 750 of the Civil Code). Employment in conditions of subordination to the employer’s management is based on an employment relationship, regardless of the name of the contract concluded by the parties (judgment of the Supreme Court of October 4, 2022, I PSKP 71/21). Consequently, in such contracts, one party may be regarded as de facto a subcontractor, primarily when the scope of the contract encompasses not only intermediation but also providing brokerage services to the other party’s clients (which is of great importance in terms of liability towards such clients). Third, cooperation contracts may be concluded ad hoc (for a pre-defined period) to manage a single project or for longer periods. Additionally, such brokerage chains can be organized not only between brokers at the same level as in a consortium, but also in a hierarchical relationship in the sense of a “wholesaler with many retailers”. There is no doubt that the entrepreneurial independence of the “retailer” brokers is untouched. They mainly work at the point of advice or sale, but use the access to insurance products and other shared services via the “wholesaler” (which resembles as a broker pool scheme).

In consortium and cooperation contracts, the remuneration of parties is predominantly based on the division of brokerage commission (provision) received from insurers. Such remuneration may be paid to one of the parties (e.g. consortium leader) and redistributed to other parties. In cooperation contracts, it is, in fact, a common rule that one of the contracting parties is granted payment in the form of a fixed percentage of brokerage commission (provision) collected by the other one. In consortium contracts, the mentioned commission is often calculated in the following manner. Each consortium member is entitled to, e.g. ½, the remuneration paid by insurers. The remuneration is paid directly to each member based on invoices issued by each member covering the part of the remuneration due to that member. Such clause may be expanded with stipulation, aimed at preventing possible obstacles in commission collection e.g. that in the event when an insurer is unable to pay the brokerage commission directly to one of the consortium members, other member (members) shall have as the right and shall be entitled to collect the commission of behalf of the first one. It is worth adding that due to the lack of statutory (as described above) or contractual regulations (between the consortium members and between them and the insurer), the consortium leader cannot demand the agreed total remuneration for the brokerage services from the insurer (judgment of the Court of Appeal in Warsaw of 18 February 2009, VI ACa 1152/2008, generally regarding consortium contracts). Finally, if a dispute arises between the insurance brokers consortium and an insurer, the consortium does not have legal personality and, therefore, does not have judicial capacity. In a procedural sense, a party is all entities that are part of the consortium (Supreme Court decision of 27 March 2010, III CZP 25/10).

Moving on to IDD and IDA requirements. It was rightly recognized in Polish insurance law doctrine that “a necessary condition for recognizing that a given broker performs activities for a specific client is that the client grants him an order (which may include a power of attorney to perform legal acts on behalf of the client). If the client uses more than one broker when seeking insurance coverage in a given area, he should precisely and separately divide the scope of the order and power of attorney between the brokers. This does not apply to cases where the brokers involved in servicing a given client have concluded an agreement defining the principles of their cooperation (insurance brokers consortium). In such a case, both a joint order or authorization granted to all brokers participating in the consortium to perform all distribution activities, as well as the division of activities by the client between the consortium members, are permissible” (Orlicki, 2019). Hence, to fulfil IDD and IDA requirements, it is necessary to establish clear rules on the performance of distribution obligations towards clients. Solutions in this scope may vary depending on the nature of cooperation. In consortium contracts, either all or some members may be liable for the performance of said obligations. In cooperation contracts, usually, one party performs all of the mentioned obligations, with certain participation of the other. Regardless of the model chosen in a given contract, the overriding goal should be to act in the best interests of the client, as well as to ensure that the client is provided with the information required by IDD and IDA regulations, in particular:

In the last of the indicated options, the debtor is liable for assistants and executors regardless of whether these persons knew that they were acting in the interests of someone other than the debtor and whether they were acting for a fee or free of charge. The legal relationship that the person providing services to the creditor had with the debtor is also irrelevant, mainly whether there was an element of subordination. The debtor is also liable for the actions or omissions of a legal representative whose authorization to perform the obligation may result from an authorized body’s act or decision (judgment of the Court of Appeal in Łódź of October 2, 2020, I ACa 140/20).

Obviously, with every form of cooperation comes the risk of a dispute between partners. Regarding the Polish insurance brokers market, such disputes typically concern the division or the right to brokerage commission (provision). Neither IDA nor any other act of Polish law considers the issue of brokerage remuneration. Hence, finding the legal basis of a particular claim is necessary to settle such a dispute. As mentioned at the beginning of this paper, legal doctrine and jurisprudence were tasked to establish how such disputes should be handled due to the need for more relevant legislation. This brings us to the fundamental question: when and under what circumstances and conditions does an insurance broker gain the right to its commission (provision)? As B. Kucharski aptly points out, “Polish scholarship, following the example of German law, has formulated the following four conditions for the acquisition of a broker’s claim for brokerage (accepted by case law): 1) the broker’s intermediary activity in concluding an insurance contract must result from an order given by the insured; 2) the insurance contract must be effectively concluded; 3) there must be a causal relationship between the broker’s activity and the conclusion of the insurance contract; and 4) the premium must be paid by the insured in whole or in part” (Kucharski, 2021) and judgment of the Court of Appeal in Warsaw of 3 June 2016, I ACa 1188/15). However, previous remarks consider only commission. Yet it must be noted that in countries like Germany or UK brokers are increasingly being financed through fees that the client has to pay directly. Same scenarios may appear in Poland. In most contracts with clients brokers reserve the right to charge additional fees for e.g. hiring consultants or experts to solve a particular issue regarding insurance. In such case the right to charge a client with a fee by cooperating brokers should be determined by the cooperation contract.

The central axis of most disputes between cooperating insurance brokers is the right to brokerage (commission) when the cooperation is terminated. First of all, the parties to a consortium or cooperation agreement should provide a mechanism for settling brokerage (commission) in the event of termination of cooperation in the content of such agreements. Going further, due to the lack of detailed agreements, the customs accepted in practice in this area should be applied. Following market practice, brokerage commission - i.e. remuneration paid by the insurer, is due and paid to the insurance broker only for concluding or bringing about the conclusion of an insurance contract, regardless of any subsequent changes in the scope of servicing a given contract. Achieving such a specific goal depends not only on the diligence of the insurance broker but also on the actions taken by the potential insured, whose passive behavior may thwart the actions carried out by the broker. Nevertheless, Considering that the broker is responsible for exercising due diligence, the broker’s contribution to concluding the insurance contract and its influence on its final shape is important. The broker whose efforts and greatest contribution led to the conclusion of the contract is rewarded, not necessarily the one who finalized its conclusion (judgment of the Court of Appeal in Warsaw of 3 June 2016, I ACa 1188/15). The participation of the intermediary in the activities that led to the conclusion of a given contract is therefore of fundamental importance, even if the contract is concluded through another intermediary or if another contract that pursues the same economic purpose is concluded instead of the contract to be concluded (Fenichel, 1931). Hence, it is imperative to establish the actual role of each broker in the conclusion of a particular insurance contract. E. Kowalewski points out in this scope that if the broker who made efforts to conclude the agreement was subsequently replaced by another broker who concluded the agreement, the brokerage is due to the first broker if the conclusion of the insurance agreement was made on the basis created by him. The signing itself is formal in nature, and the influence of the specific broker on the form of the concluded insurance agreement is decisive (Kowalewski & Serwach, 2008). However, this may prove problematic when each cooperating insurance broker is authorized to represent the client. If only one of the insurance brokers was authorized to represent the client in relation to the insurer (and the other was responsible for other activities and did not directly participate in the process of concluding the insurance contract), the creditor of the claim for brokerage will be the broker authorized to represent. In turn, the claim of the second broker for “participation” in the brokerage will be based on the provisions of the contract, or on article 471 of the Civil Code. In the doctrine of insurance law, it is accepted that more than one insurance broker may act simultaneously on behalf of the insured to conclude an insurance contract. A power of attorney may be granted to several persons with different or even the same scope of authorization. From the point of view of brokerage practice, the admissibility of appointing several proxies with the same scope of activity is of primary importance. In such a case, each of them may act independently on behalf of the principal, which results from art. 107 of the Civil Code, according to which, if the principal has appointed several proxies with the same scope of authorization, they may act independently unless the content of the power of attorney states otherwise. If such a situation occurs, we may point out two possible scenarios – either only one of the brokers shall be awarded the right to a brokerage (commission) or said commission should be split to all parties claiming the right to it. The doctrine does not exclude the possibility that several brokers may be entitled to commission-based remuneration, in which case legal solutions are sought in the principles of divisibility of benefits regulated in the Civil Code (Fras, 2009) – as it is stated in article 379 § 1 and 2 of the Civil Code:

Moreover, the already mentioned B. Kucharski postulates that Civil Code provisions on the agency contract may be applicable per analogiam, at least to the extent (Kucharski, 2021). The same Author concludes his remarks on disputes between insurance brokers that “The issue of the right to brokerage in the event of a change of broker should be resolved taking into account the contribution of a specific broker in shaping the concluded agreement and based on analogously applied provisions on agency, which in a certain way privilege the previous agent. The proposed principle does not exclude the division of brokerage in some situations, as well as the awarding of brokerage to a new broker, depending on the significance of the changes in relation to the agreement proposed by the first broker. The adoption of the above-mentioned principles reduces the attractiveness of attempts to take over the client in situations where the selection of a new broker would be of a non-meritorious nature, i.e. unjustified by the low quality of the services of the previous broker”.

Against this background, the literature highlights the possible conflict of interest between the insurer and the broker. When negotiating an insurance contract, the broker should be guided primarily by the interests of the insured, not the insurer or his own, by striving to maximize the commission at the insured’s expense (Pokrzywniak, 2005). In turn, the insurer is not entitled to interfere in the terms of service agreed between the broker and their client or in the client’s choice of broker. Nevertheless, even taking into account the fact that the broker represents the client and acts as an intermediary between the person seeking insurance coverage and the insurer, leading to the conclusion of the insurance contract, they also provide a service for the insurer, for which they usually receive remuneration from the latter. This specific three-party relationship is exposed to the occurrence of a conflict of interest. The broker is obliged to act solely in the interests of their client, the client is obliged to behave loyally towards the broker, and the insurer is obliged to refrain from any interference in the relationship between the client and the broker. On the other hand, it has no influence on which broker representing a given client receives the brokerage paid by him, the above depends primarily on the broker’s involvement in striving to conclude the contract and its final shape. In addition, a conflict of economic interests should be noted; the insured is usually interested in obtaining the most financially advantageous insurance option, and the broker should represent such an interest of the client; on the other hand, the amount of his brokerage is often a derivative of the amount of the premium; the higher the premium, the higher the brokerage, which also fulfils the insurer’s interest. To sum up, the doctrine indicates that the described conflict of interests occurs because the interest of the insured (i.e. the person whose interests the broker should protect) is not identical to the interest of the insurer (the entity that de facto pays for concluding the insurance contract). Because insurance brokers cooperate with various insurers, they are responsible for securing the interests of policyholders, in particular, for selecting an offer that best meets their needs and demands. The above considerations lead to the conclusion that if the client employs more than one broker. Such authorization should not raise any doubts, and even if the client independently, regardless of the broker’s involvement, negotiates the contract with the insurer, which is also possible because by granting a power of attorney, the principal does not give up any subjective rights, the broker’s remuneration is mainly dependent on how he performs the service entrusted to him, in particular whether he performs it properly in the context of the aspects mentioned above of the tripartite relationship between the insured, the broker and the insurer. However, it should be mentioned that these statements only refer to the remuneration in the form of a commission but not to the fee case.

Co-opetition within the insurance market is exemplified mainly by insurance companies. More evidence is needed on the scale and motivation of co-opetition among other entities, like insurance intermediaries. There is qualitative research on tied insurance agents (Krymarys, 2016) but nothing about insurance brokers, where potential competition is much stronger. The Fair Play survey is an infrequent occasion to examine insurance brokers’ co-opetition. It takes place before the Annual Congress of Insurance Brokers in Poland. The survey, in the form of CAWI, aims to choose the best insurance companies based on brokers’ opinions. However, other issues linked to insurance brokers’ activity are also tackled within the questionnaire. Data from the surveys are available under the permission of the Association of Polish Insurance and Reinsurance Brokers (https://www.spbuir.pl).

An Insurance Broker Congress annually gathers 400–500 brokers, one of the most significant market events. Not all insurance brokers participate in the Congress, and not all participating brokers fill out the questionnaire, so the survey’s outcome cannot be considered representative. Moreover, brokers taking part in the annual Congress are, on average, more interested in networking and able to cover costs. Nevertheless, the Fair Play survey has an exploratory potential.

Co-opetition is a pretty popular business model in the insurance industry. European law primarily deals with co-opetition among insurance companies; however, the Insurance Block Exemption Regulation expired on 31 March 2017. This regulation allowed relatively broad collaboration, typically considered an anti-competition practice: joint creation and distribution of compilations, tables, and studies within research and development agreements. However, insurance companies still cooperate with coinsurance or insurance fraud detection co-opetition of intermediaries has much smaller recognition.

Although it is not regulated in Polish law, the consortium of insurance brokers seems to be a popular form of collaboration and has a specific legal understanding of local jurisprudence. Consortia are generally temporary, based on the principle of joint benefits and risks from providing professional brokerage services. Generally, partners act under a common name and are under joint responsibility but specify parties’ obligations simultaneously.

Cooperation contracts are agreements of diligent action, not results, based on trust in the service provider. They have general roots in the Civic Code. There are various approaches; however, most are temporal due to needing professional assistance or within the public tender. Regardless of the legal form, remuneration and liability are important issues. That is why dispute settlement is significant in both cases.

The empirical analysis of brokers’ co-opetition in Poland, based on surveys taken before the annual Congress of Insurance Brokers, is not representative. Hence, the outcome cannot be generalized. Nevertheless, it proves the existence of co-opetition and provides examples of reasoning for and against collaboration among respondents. Quantitative analysis showed that cooperation depends on the level of mandatory professional liability insurance; the higher the level, the stronger the collaboration for the respondents. Collaboration takes place not only within insurance broker companies that requires specialization within a team available only with high turnover. It happens also between individual brokers and insurance broker companies for various reasons, revealed in the qualitative part.

The qualitative part shows the reasoning behind both collaboration and lack of collaboration. Motives for collaboration are much more diversified. The narration focuses on the client (a client-oriented approach). Frequently, the need for cooperation is the client’s decision or the outcome of risks’ complexity. Collaboration assures synergy effects due to specialization and knowledge /experience sharing. An interesting and frequent motive is international cooperation. Surprisingly, within the respondents’ answers, lack of collaboration results from “no need” rather than lack of trust. “No need” can be identified with small risks or an insurance broker company with broad specialization.

Although the samples are not representative, they give an interesting insight into the co-opetition of insurance brokers. The statistically significant difference between the surveys of 2023 and 2024 of the same respondents regarding cooperation suggests this phenomenon changes dynamically, and data comparison should be conducted very carefully. The further research could focus on the required legal framework to make co-opetition more effective. The empirical analysis could show scale but also prove motives and issues linked to co-opetition.

The legal framework for insurance broker cooperation is obsolete, and competition is solid; nevertheless, co-opetition is quite alive, at least for the respondents. The research suggests that cooperation is a natural state in a market where players mostly focus on an intermediate business model with outlined specializations but no deep specialization.