The Court of Justice of the European Union (“CJEU”) is to decide on 31 May 2018 (C-542/16) whether insurance intermediaries that offer unit-linked and insurance-based investment products are subject to directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (“MiFID”).

Background

The Swedish Supreme Court asked the CJEU whether advice to invest in an investment certificate given by a registered insurance intermediary that offers unit-linked products should be construed as insurance mediation that falls within the scope of the Insurance Mediation Directive, or whether it must be classified as investment advice covered by the MiFID.

The Advocate General’s opinion

The Advocate General (who is, in simple terms, a member of the CJEU that gives an impartial opinion to the court on legal solutions) stated that to the extent that an insurance contract qualifies as unit-linked insurance or an insurance-based investment product, an insurance intermediary’s advice to a client is covered by the Insurance Mediation Directive, and not by MiFID.

Insights from the Polish market – insurance mediation or investment advice?

According to press releases, the Polish Financial Supervisory Authority is of the view that insurance intermediation and investment advice are two very different issues. According to the regulator, soliciting unit-linked and insurance-based investment products does not come under the MiFID regime.

A representative of the Polish Financial Ombudsman anticipates that the CJEU ruling may impact the issue of the validity of unit-linked products offered in Poland.