Transparency in the Insurance Contract Law: A Comparative Analysis Between the Principles of European Insurance Contract Law (PEICL) and Selected European Legal Regimes

Malinowska (2008), p. 28.

Wandt (2012), pp. 9–22.

Wandt (2012), pp. 9–22.

Wandt (2012), pp. 9–22.

Project Group ‘Restatement of European Insurance Contract Law’, established by Prof. Dr. Fritz Reichert - Facilides, LL.M., Innsbruck, Chairman: Prof. Dr. Helmut Heiss, LL.M., Zurich. Full version of PEICL available at: http://​www.​restatement.​info or https://​www.​uibk.​ac.​at/​zivilrecht/​forschung/​evip/​restatement/​draft.​html. Accessed 9 Apr 2019.

Heiss (2010), p. 7.

Basedow et al. (2009).

The analysis includes the following jurisdictions: Spanish, Greek, Italian, Turkish, Austrian, Croatian, German, of Western Balkans (Serbia, Montenegro, Bosnia & Herzegovina), Portuguese, Dutch, Swedish and Polish.

However, it should be mentioned that Swedish Insurance Business Act attempts to define the principle of transparency and states that it means the information to policyholder and to persons offered insurance must be adapted according to the nature of insurance and clearly show the insurance terms and the development of the value of the insurance. For more details, see the Chapter by Van der Sluijs J, Transparency in Contract Law of Sweden.

See Chapter 1 by Wöss S, Transparency in the Insurance Contract Law of Austria.

Basedow et al. (2009), Comment No 2 to the Article 1:203.

Article 1:203 of the PEICL constitutes a general rule applying to the content of every document provided by the insurer to the policyholder. Nevertheless, it is worth to mention that the requirement to use clear language in the communication with the policyholder is separately mentioned in the Article 5:101 sec. 1 of the PEICL with respect to the information on the insurance premium where its payment is being made a condition of formation of the contract or of the beginning of cover. In the lack of explanation of such separate emphasis and assuming that the emphasis has been made on purpose, it can be presumed that the Project Group intended to underline the importance of this Article. None of the analysed papers referred to a similar regulation in the national laws.

Basedow et al. (2009), Note No 1 and 4 to the Article 2:502.

Basedow et al. (2009), Comment to the Article 2:201.

The analysis of the studies of transparency within Turkish insurance contract law leads to the conclusion that, contrary to the majority of European insurance laws, Turkish regulation does not oblige the insurer to warn the applicant in case there is an incompatibility between the cover offered and the applicant’s requirements. See Chapter 19 by A. Yesilova, Transparency in the Insurance Contract Law of Turkey.

Usually the duty to advise is associated with the pre-contractual phase but an interesting remark has been highlighted by Wandt M in the chapter Transparency in Contract Law of Germany. German insurance law specifies the duty to advise within the duration of the contract, i.e. the insurer is obliged to query and advise the policyholder throughout the term of their contract relationship only if there is a recognizable necessity for advice.

The duty to advice originates from the directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (the IDD) which was transposed into the national laws by 23 February 2018 (Article 42 of the IDD). In turn, the current version of the PEICL is dated 1 November 2015. This ‘time difference’ is likely to be a reason why the PEICL do not include the provision specifying duty to advice. For additional explanation supporting this thesis see Basedow et al. (2009), Note No 1 to the Article 2:202.

Basedow et al. (2009), Comment No 1 to the Article 2:202.

Basedow et al. (2009), Comment No 3 to the Article 2:101.

See Chapter 6 by Luzak J., Transparency in the Insurance Contract Law of the Netherlands.

Basedow et al. (2009), Comment No 3 to the Article 2:304.

See Chapter 3 by Wandt M, Transparency in the Insurance Contract Law of Germany.

Heiss (2010), p. 7.