Annulment request
Decision
With judgment 07549/2021 dated 23 June 2021, the Administrative Court of Lazio upheld an appeal brought against the Insurance Supervisory Authority (IVASS) by the Sindacato Nazionale Agents di Assicurazione (SNA). In the appeal, the SNA requested the annulment of certain provisions contained in IVASS measure 97 of 4 August 2020 that amended IVASS Regulation 40/2018 on insurance distribution.
In particular, SNA had requested the annulment of:
- the provisions requiring intermediaries to notify companies of horizontal collaboration agreements made with other intermediaries, which, according to SNA:
- introduce a de facto limitation of the freedom to enter into the said agreements, with restrictive effects on competition;
- imply an increase in bureaucratic responsibilities for intermediaries;
- may allow insurance companies to interfere in the activities of intermediaries;
- contrast with the Community acquis introduced by the Insurance Distribution Directive (IDD) which envisages a similar fulfilment exclusively for financial instruments; and
- impose an obligation on operators that is not proportionate to the subject matter of the contract, at least with reference to those contracts that envisage a low amount of premium; and
- the provisions which oblige intermediaries to deliver a declaration of consistency of the product with the needs of the insured party to the policyholder, prior to the stipulation of the contract, which according to the SNA introduces an unnecessary requirement for intermediaries.
Regarding the first set of provisions detailed above, the Court noted that the rule to amend Article 42 of Regulation 40/2018 – introducing the obligation to communicate collaboration agreements to the mandating insurance companies – was not contained in the draft regulation for public consultation, and therefore prevented operators within the market to provide commentary on it.
However, the Court noted that the rule obliged intermediaries to publish the lists of horizontal collaboration relationships (which requires the intermediaries to arrange for documents and/or to set up appropriate IT devices for the purpose of publication), and also obliged the agents who have entered into a collaboration agreement to directly notify each mandating insurance company.
Regarding the second set of provisions detailed above, the Court acknowledged SNA's objections to the revision of Article 58 of Regulation 40/2018, introduced by the contested Article 4 paragraph 20 of IVASS Measure 97/2020, which provided for the delivery of an information sheet attesting to the consistency of the insurance product proposed with the requests and needs of the policyholder or the insured party, prior to signing the insurance contract.
According to the Court, Article 58 already obliges insurance intermediaries to propose insurance contracts to clients that are consistent with their needs, an obligation that is not effectively reinforced by a document confirming the existence of the legal obligation.
For further information on this topic please contact David Maria Marino at DLA Piper Studio Legale Tributario by telephone (+39 02 80 61 81) or email ([email protected]). The DLA Piper Studio Legale Tributario website can be accessed at www.dlapiper.com.