Walter Endress v Allianz Lebensversicherungs-AG [2013] EUECJ C-209/12 (11 July 2013)

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(Life assurance – Right of cancellation – Cancellation period – Starting point and duration – Communication of information)

1. Under EU law, a life assurance policy-holder must be given a period of between 14 and 30 days from notification of the conclusion of his contract (‘the cancellation period’) (2) within which he may cancel it, and, prior to the conclusion of the contract, he must be informed of the arrangements governing the exercise of this right of cancellation. What happens if he was not so informed? Can he cancel the contract? If he can, does EU law preclude a national measure according to which that right expires one year after payment of the first premium and independently of whether the mandatory information regarding the right of cancellation had been made available to the policy-holder?

2. These are the main issues to consider in answering the question referred in the present case.

3. Council Directive 90/619/EEC (‘the Second Life Assurance Directive’) (3) amended and supplemented Council Directive 79/267/EEC (‘the First Life Assurance Directive’), (4) which covered ‘life assurance’, defined as ‘the class of insurance which comprises, in particular, assurance on survival to a stipulated age only, assurance on death only, assurance on survival to a stipulated age or on earlier death, life assurance with return of premiums, marriage assurance, birth assurance’. (5)

4. The Second and Third Life Assurance Directives were primarily aimed at establishing an internal market in life assurance, including the freedom of life assurance services. (6)

5. Under Article 4(1) of the Second Life Assurance Directive, the applicable law was in principle the law of the Member State of the commitment though, where the law of that State so allowed, the parties could choose the law of another country. The ‘Member State of the commitment’ was defined in Article 2(e) thereof as ‘the Member State where the policy-holder [had] his habitual residence or, if the policy-holder [was] a legal person, the Member State where the latter’s establishment, to which the contract relates [, was] situated’.

6. As amended by Article 30 of the Third Life Assurance Directive, Article 15 of the Second Life Assurance Directive was worded as follows:

‘1. Each Member State shall prescribe that a policy-holder who concludes an individual life-assurance contract shall have a period of between 14 and 30 days from the time when he was informed that the contract had been concluded within which to cancel the contract.

The giving of notice of cancellation by the policy-holder shall have the effect of releasing him from any future obligation arising from the contract.

The other legal effects and the conditions of cancellation shall be determined by the law applicable to the contract as defined in Article 4, notably as regards the arrangements for informing the policy-holder that the contract has been concluded.

2. The Member States need not apply paragraph 1 to contracts of six months’ duration or less, nor where, because of the status of the policy-holder or the circumstances in which the contract is concluded, the policy-holder does not need this special protection. Member States shall specify in their rules where paragraph 1 is not applied.’

7. According to recital 23 in the preamble to the Third Life Assurance Directive,

‘… in a single assurance market the consumer will have a wider and more varied choice of contracts; … if he is to profit fully from this diversity and from increased competition, he must be provided with whatever information is necessary to enable him to choose the contract best suited to his needs; … this information requirement is all the more important as the duration of commitments can be very long; … the minimum provisions must therefore be coordinated in order for the consumer to receive clear and accurate information on the essential characteristics of the products proposed to him as well as the particulars of the bodies to which any complaints of policy-holders, assured persons or beneficiaries of contracts may be addressed’.

8. Article 31 set out the obligation to communicate information to the policy-holder prior to the conclusion of the contract:

‘1. Before the assurance contract is concluded, at least the information listed in point A of Annex II shall be communicated to the policy-holder.

2. The policy-holder shall be kept informed throughout the term of the contract of any change concerning the information listed in point B of Annex II.

3. The Member State of the commitment may require assurance undertakings to furnish information in addition to that listed in Annex II only if it is necessary for a proper understanding by the policy-holder of the essential elements of the commitment.

9. Annex II listed the ‘information, which [was] to be communicated to the policy-holder before the contract [was] concluded (A) or during the term of the contract (B)’. That information had to be ‘provided in a clear and accurate manner, in writing, in an official language of the Member State of the commitment’. Point A contained a table: the left-hand column listed information about the assurance undertaking and the right-hand column information about the commitment itself. In the latter, item 13 listed, in the French version, ‘modalités d’exercise du droit de renonciation’ and, in the English version, ‘[a]rrangements for application of the cooling-off period’, that is to say, the period during which the right of cancellation could be exercised. (7) The German language version, which talks of the ‘Ausübung des Widerrufs[-] und Rücktritt[s]rechts’, appeared to refer to different aspects of the right of cancellation.

10. Paragraph 5a of the Versicherungsvertragsgesetz (Law on insurance contracts or ‘the VVG’) in the version applicable at the material time in the main proceedings (‘the original version of Paragraph 5a VVG’) provided:

‘(1) If the insurer has not delivered the conditions of insurance to the policy-holder at the time of the application or has failed to supply consumer information required by Paragraph 10a of the Versicherungsaufsichtsgesetz, ^[(8)^] the contract shall be considered to have been concluded on the basis of the policy document, the conditions of insurance and the additional consumer information which is relevant to the subject-matter of the contract, unless the policy-holder objects in writing within 14 days after delivery of the documents. …

(2) The period begins to run only when the policy document and the documentation under subparagraph 1 are fully available to the policy-holder and the policy-holder, on delivery of the policy document, has been informed in writing, in typographically clear form, about the right to object, the commencement of the period and its duration. It is incumbent upon the insurer to prove receipt of the documentation. The posting of the objection in good time is sufficient to comply with the time-limit. Notwithstanding the first sentence, however, the right to object expires one year after payment of the first premium.’

11. Whilst the original version of Paragraph 5a VVG was modified with effect from 31 December 2007, it apparently still applies to a significant number of life assurance contracts concluded prior to that date.

12. The original version of Paragraph 5a VVG used the German terms ‘widerspricht’, ‘Widerspruchsrecht’ and ‘Widerspruch’. Those terms are different from those used in Article 15 of the Second Life Assurance Directive (which used the terms ‘zurückzutreten’, ‘zurücktritt’ and ‘Rücktritts’) and in the phrase ‘Ausübung des Widerrufs[-] und Rücktritt[s]rechts’ in Annex II to the Third Life Assurance Directive.

13. For the purposes of this Opinion, I will focus on the explanations given in these proceedings of how the original version of Paragraph 5a VVG operated rather than on the possible nuances of the meaning of the terms ‘widerspricht’, ‘Widerspruchsrecht’ and ‘Widerspruch’ under German law. (9)

14. Mr Endress sought to conclude a life assurance contract with Allianz Lebensversicherungs-AG (‘Allianz’) with effect from 1 December 1998.

15. Mr Endress received the general conditions and a background note only when Allianz sent him the assurance policy. According to findings made by the appellate court which bind the Bundesgerichtshof (‘the referring court’), even when it thereby accepted Mr Endress’s offer, Allianz did not properly inform Mr Endress of his rights guaranteed under the original version of Paragraph 5a VVG. (10)

16. As a result, the referring court states that the period of 14 days described in the original version of Paragraph 5a VVG did not start.

17. Under the contract, an annual premium had to be paid for a period of five years. According to the general conditions applicable to the contract, the repayment value on termination was limited to the value of the guarantee in case of death.

18. From December 1998 till December 2002, Mr Endress paid premiums. He apparently paid an additional premium in 2004.

19. On 1 June 2007, Mr Endress gave notice to terminate the contract with effect from 1 September 2007. In September 2007, the insurance company paid him the repayment value which was less than the sum of the premiums with interest.

20. By letter of 31 March 2008 (and thus more than one year after payment of the first premium), Mr Endress exercised his rights under the original version of Paragraph 5a VVG. He claimed that the contract was not validly concluded and asked the insurer to repay all the premiums with interest (after setting off the repayment value). It is unclear how and at what point in time Mr Endress became or was made aware of his right under the original version of Paragraph 5a VVG and the arrangements for its exercise.

21. The first-instance court dismissed Mr Endress’s claim for a further amount from the insurer. The appellate court dismissed his appeal against that decision.

22. Mr Endress then appealed on a point of law to the Bundesgerichtshof, which considers that the outcome of the appeal depends on whether the rule according to which the right of the policy-holder under the original version of Paragraph 5a(2) VVG lapsed one year after payment of the first premium (‘the one-year rule’) was precluded by the Second and Third Life Assurance Directives. Against that background, that court has stayed the proceedings and referred the following question:

‘Must the first indent of Article 15(1) of [the Second Life Assurance Directive] having regard to Article 31(1) of [the Third Life Assurance Directive], be interpreted as precluding a provision – such as the fourth sentence of Paragraph 5a(2) of the [VVG as applicable at the material time] – under which a right of cancellation or a right to object lapses one year at the latest after payment of the first premium even if the policy-holder has not been informed about the right of cancellation or the right to object?’

23. Mr Endress, Allianz, the German Government and the Commission filed written observations and presented oral argument at the hearing held on 24 January 2013.

24. It appears from the reference for a preliminary ruling that, before the German courts, Mr Endress has argued that the one-year rule is contrary to the Second and Third Life Assurance Directives.

25. I will therefore consider whether a provision such as the original version of Paragraph 5a VVG, which contained the one-year rule, was precluded by the Second and Third Life Assurance Directives and, if it is not, then turn to the consequences of that conclusion for the present case.

26. Whilst the original version of Paragraph 5a VVG is no longer in force, (11) a considerable number of life assurance contracts remain subject to that provision. The Court’s judgment in the present case is therefore likely to affect policy-holders other than Mr Endress. (12) It might also be relevant to policy-holders who have signed life assurance contracts based on a provision other than the original version of Paragraph 5a VVG in so far as the right to cancel them is subject to the same (or a similar) one-year rule.

27. The submissions made in this case have offered only a fragmented description of German life assurance law and the particular features of the formation and cancellation of life assurance contracts of the type described in the original version of Paragraph 5a VVG.

28. According to the referring court, that provision applied to contracts formed under what I shall refer to as ‘the policy model’. Under that approach, the applicant’s request for life assurance constituted a contractual offer and the insurer’s acceptance of that offer took effect through sending the applicant the assurance policy, the general assurance conditions and a background note. It seems that the contract was concluded only after the expiry of a period of 14 days following the communication of these documents and provided that, during that period, the applicant did not express an intention not to be bound by the contract. During that period, the contract was thus, as a matter of German law, provisionally deprived of validity. If the applicant did not react within that period, the contract was concluded as of the date on which the applicant received the assurance policy, the general conditions and the background note. If the insurer failed correctly to provide those documents to the future policy-holder, the period of 14 days did not start. However, after one year had elapsed from payment of the first premium, the applicant could no longer express his intention not to be bound by the contract.

29. The referring court’s question concerns in particular the fourth sentence of the original version of Paragraph 5a(2) VVG, according to which the applicant could no longer express his intention not to be bound by the contract after expiry of a period of one year following payment of the first premium – even if, as the referring court points out, the insurer never communicated the relevant information (including with respect to the right for the applicant to express his intention not to be bound by the contract) and thus the period of 14 days never started.

30. The referring court examines the one-year rule in the light of the provisions in the Second and Third Life Assurance Directives which concerned, respectively, the right of cancellation following notification of the conclusion of the contract and the obligation to communicate certain information to the applicant (that is, the future policy-holder) prior to the conclusion of the contract.

31. I am unclear whether the relevant national law is to be understood as concerning the right of cancellation within the meaning of Article 15 of the Second Life Assurance Directive or some different right that is available to the applicant who wishes to prevent the conclusion of the life assurance contract and that is not addressed in that provision.

32. The text of the original version of Paragraph 5a VVG suggests that the subject of that provision was the ‘Widerspruchsrecht’ whereas the German version of Article 15 of the Second Life Assurance Directive describes the circumstances where the policy-holder ‘zurücktritt’ (‘withdraws’) and the German version of Annex II to the Third Life Assurance Directive defines the information that must be communicated before conclusion of the contract as including the ‘Ausübung des Widerrufs[-] und Rücktritt[s]rechts’. By contrast, in its question, the referring court asks this Court to consider the ‘Rücktritts- oder Widerspruchsrecht’ which would appear to concern both (a part of) the right covered under the Second and Third Life Assurance Directives and the right that is the subject of the original version of Paragraph 5a VVG.

33. In order to assist the referring court, whilst avoiding taking a definitive position on the meaning of German law, I shall therefore address the following two questions separately: (i) was a rule according to which the right of cancellation could no longer be exercised more than one year after payment of the first premium, independently of whether the required information regarding the right of cancellation had been made available to the policy-holder, precluded by the Second and Third Life Assurance Directives; and (ii) leaving aside the right of cancellation within the meaning of Article 15 of the Second Life Assurance Directive, did the Second and Third Life Assurance Directives preclude the formation of life assurance contracts on the basis of the terms described in a provision such as the original version of Paragraph 5a VVG? The first question is based on the premiss that that provision of national law concerned the right of cancellation within the meaning of the Second and Third Life Assurance Directives; the second question assumes that that was not the case.

Assuming that the original version of Paragraph 5a VVG concerned the right of cancellation: was the one-year rule precluded by the Second and Third Life Assurance Directives?

34. Under Article 15(1) of the Second Life Assurance Directive, the cancellation period started with notifying the policy-holder that the contract had been concluded. That starting point was based on two premisses: first, only a contract which has been concluded can be cancelled and, second, a policy-holder cannot exercise the right of cancellation unless he has been properly and timeously informed of it. Thus, Article 31 of the Third Life Assurance Directive required the relevant information, as defined in Annex II to that directive, to be communicated to the applicant prior to the conclusion of the contract.

35. However, Article 15 of the Second Life Assurance Directive did not provide for the consequences of a failure to notify that information, which included the arrangements regarding the right of cancellation, properly before the contract was concluded.

36. Article 31(1) of the Third Life Assurance Directive likewise omitted to define those consequences or to state whether they fell to be determined in accordance with the law of the competent Member State. Article 31(4) merely stated that the law of the Member State of commitment was to govern the detailed rules for implementing that article and Annex II.

37. Against that background, did the Second and Third Life Assurance Directives preclude a Member State from providing that, in circumstances where the relevant information – including information regarding the right of cancellation – was not (properly) communicated to the policy-holder, the right of cancellation could only be exercised up to one year after payment of the first premium?

38. I do not think that it is the task of the Court to set out exhaustively what the consequences are of a failure to communicate the required information. Rather, it is for the Member States to implement the Third Life Assurance Directive (specifically, Article 31) in a manner that is consistent with EU law, and in particular with the principles of legal certainty, proportionality and effectiveness.

39. In my view, Member States cannot simply attach no consequence at all to a failure to communicate. That would both take away any incentive for the insurer to comply with the obligation to communicate information and fail to protect the prospective purchaser of life assurance. At the same time, I do not consider that the Second and Third Life Assurance Directives obliged Member States to provide that the contract would be invalid whenever the obligation to communicate information prior to the conclusion of the contract had not been respected. Such a sanction might not always be a proportionate and effective remedy.

40. Thus, for example, the insurer might have failed to communicate all or a substantial part of the information listed in Point A of Annex II to the Third Life Assurance Directive. In that event, it might be difficult to imagine how a contract could come into being: one party would have lacked all, or a considerable part of, the essential information regarding that contract.

41. Or it might be the case that only the information regarding the right of cancellation and the arrangements governing its exercise were not communicated; and that, in other respects, the prospective purchaser was properly informed. In such circumstances, the purchaser would only have been ignorant of the wider protection to which that right of cancellation entitled him. It seems unlikely that a person who had decided to enter into a life assurance contract would have been dissuaded from entering into that contract by knowing that he had wider protection afforded by the right of cancellation. A Member State might decide that the appropriate remedy in such circumstances is to allow the policy-holder a period of time following the moment at which he was properly informed of his right of cancellation during which to exercise that right. Alternatively, a Member State might decide to grant the policy-holder greater protection or take account of whether the policy-holder wished the contract to be declared invalid. (13)

42. I recall that, in relation to the right of cancellation under the Doorstep Selling Directive, (14) the Court pointed out in Heininger that ‘if the consumer is not aware of the existence of the right of cancellation, he will not be able to exercise that right’. (15) That case involved a German law under which a consumer who had not received the required information could exercise the right of cancellation until both parties had performed their obligations under the agreement, but could not do so later than one year from the date on which he had declared his intent to conclude the contract. The Court further held that reasons of legal certainty cannot justify restricting the period during which the right of cancellation may be exercised in so far as they imply a limitation of the rights expressly conferred on consumers in order to protect them against the risks arising from the fact that the credit institutions have chosen to enter into agreements away from their business premises. (16)

43. There are significant differences between the Doorstep Selling Directive and the Second and Third Life Assurance Directives. That said, I take the Court’s position in Heininger to mean that consumer rights should not be weakened in order to offer legal certainty to a seller who has failed to communicate in a proper and timeous manner information to the consumer that would have enabled the latter to exercise his right of cancellation within the period defined by the EU legislator. (17)

44. In my opinion, the same considerations should apply under the Second and Third Life Assurance Directives.

45. Like the consumer in a doorstep-selling arrangement, the policy-holder is the weaker party in the contractual relationship with the insurer. He should be informed of the implications of that contract, in order to make an informed choice about both insurer and contract, before he becomes legally bound by the contract. As with the Doorstep Selling Directive, the Second and Third Life Assurance Directives put the burden on the insurer to communicate the necessary information. (18) That party should not be able to invoke legal certainty to redress a situation caused by its own failure to comply with a requirement under EU law to communicate a defined list of information. (19)

46. I add that payment of the first premium may be considered as evidence that the policy-holder intended to be bound by the contract based on the information regarding that contract communicated to him before or at that time. However, due to the insurer’s omission, he was not provided with all the information which EU law considers relevant to the conclusion of the contract.

47. A policy-holder who has not been informed of his right of cancellation by the insurer may well learn of it through another channel, but the insurer has still failed to comply with the duty imposed by the Third Life Assurance Directive and implemented through national law. The insurer cannot be allowed to rely on that failure (assuming he could prove when the policy-holder became aware of the right to cancel) in order to argue that the cancellation period has ended. Only if the insurer can prove that he has communicated all the necessary information is there sufficient legal certainty for the cancellation period to run its course and come to an end.

48. That does not, however, mean that the policy-holder may not cancel before the insurer communicates the information to him, if he is or becomes aware of his right of cancellation by another means. That would again amount to allowing the insurer to take advantage of his own failure to communicate in order to deny the policy-holder his right.

49. For those reasons, I conclude that Article 15 of the Second Life Assurance Directive and Article 31 of the Third Life Assurance Directive precluded a Member State from providing that the right of cancellation can no longer be exercised one year after payment of the first premium irrespective of whether the insurer has informed the policy-holder of that right properly and timeously. Under such a rule, the cancellation period comes to an end as a result of the policy-holder performing his contractual obligations (by paying the premium due) and despite the insurer’s failure to perform his statutory obligation to communicate information to the policy-holder. Such a result would be perverse.

50. That conclusion may be sufficient to assist the referring court in the present case. I shall nevertheless also briefly examine whether or not Article 15(1) of the Second Life Assurance Directive precluded a Member State from providing for a cancellation period that is longer than 14 to 30 days after notification of the conclusion of the contract.

51. In my view, Article 15(1) of the Second Life Assurance Directive made it clear that the cancellation period could be no shorter than 14 days starting from when the conclusion of the contract was notified. That period could be between 14 and 30 days. Article 15(1) thus set both a lower and an upper limit to the cancellation period which Member States might lay down in their legislation. The lower limit was obviously there to provide a minimum level of protection for the policy-holder. The upper limit seemed logically to be there to ensure legal certainty for both the policy-holder and the insurer.

52. What if the life assurance contract was not concluded in accordance with the requirements of the Second and Third Life Assurance Directives? In particular, what if the information described in Article 31 of the Third Life Assurance Directive was not communicated to the policy-holder until later?

53. In that event, for the reasons I have already set out, the policy-holder must be able to cancel the contract during a period commencing after the communication of the relevant information.

54. Had the policy-holder then to be given a cancellation period that was longer than the upper limit set out in Article 15(1) of the Second Life Assurance Directive?

56. Whilst Article 15 of the Second Life Assurance Directive specified the starting point of the cancellation period in such circumstances, (20) I do not consider that national law can provide that the policy-holder has a right to cancel his contract after expiry of a period that is longer than the upper limit expressly laid down in that provision.

Assuming that the original version of Paragraph 5a VVG did not concern the right of cancellation: was the formation of a life assurance contract based on that provision precluded by the Second and Third Life Assurance Directives?

57. Should the referring court decide that the right described in the original version of Paragraph 5a VVG was separate from the right of cancellation identified in Article 15 of the Second Life Assurance Directive, it becomes relevant to examine whether the Second and Third Life Assurance Directives precluded a Member State from adopting a model such as the policy model for the formation of a life assurance contract. If the answer is ‘no’, then in fact the question referred is hypothetical.

58. Both directives (21) applied to the formation and cancellation of a life assurance contract. Their relevant provisions related to five different stages: (i) the formation of the contract; (ii) its conclusion; (iii) the notification of its conclusion to the policy-holder; (iv) the start of a cancellation period following that notification; and (v) its possible cancellation within that period.

59. With respect to stage (i), Article 31(1) of the Third Life Assurance Directive provided that the information listed in point A of Annex II to that directive had to be communicated to the prospective purchaser before the conclusion of the contract. In particular, in order to enable him to make an informed decision, I consider that the policy-holder had to be so informed prior to his choice of a particular insurer and contract. The objective of that obligation to communicate information was to enable the prospective purchaser to choose the contract best suited to his needs and provide him with ‘clear and accurate information on the essential characteristics of the products proposed to him as well as the particulars of the bodies to which any complaints of policy-holders, assured persons or beneficiaries of contracts may be addressed’. (22) That communication had also to include information regarding the arrangements for cancelling the contract. (23)

60. With respect to stages (ii) to (v), Article 15 of the Second Life Assurance Directive prescribed that, following conclusion of the contract and notification of that fact, the policy-holder could cancel the contract within a limited cancellation period. A contract not yet concluded, where there has been no offer and acceptance resulting in an agreement between parties to be bound by the specific terms of the contract, self-evidently cannot be cancelled.

61. It follows that the Second and Third Life Assurance Directives, when read together, required that certain information be communicated to the (future) policy-holder before conclusion of the contract and that a cancellation period of between 14 and 30 days then be available to him after notification of that conclusion. National arrangements which did not respect those requirements were therefore precluded by those directives.

62. In so far as national law permitted the formation of the life assurance contract to be designed in a manner that excluded communication of the relevant information in a proper and timeous manner as required under Article 31(1) of the Third Life Assurance Directive, it would appear to have been precluded by that directive. The obligation to communicate information would have been undermined if that information were submitted only after the policy-holder had made his offer and had thus chosen an insurer and a contract.

63. If the law of a Member State provided for a period during which the applicant could object to the conclusion of the contract and stated that during that period the contract was not yet concluded, then evidently that period was not a cancellation period within the meaning of Article 15(1) of the Second Life Assurance Directive and this right to object formed part of stage (i) (formation of the contract) rather than any subsequent stage.

64. In such circumstances, the law of a Member State should have provided that, after expiry of the period during which the applicant could express his intention not to be bound by the contract (stage (ii)), the policy-holder then had be notified of the conclusion of the contract (stage (iii)) and that the policy-holder had the right to cancel the contract during a period after its conclusion (stages (iv) and (v)) which was distinct from the period during which he could object to the conclusion of the contract (stage (ii)). Otherwise, by the time the contract was concluded, it would appear that the cancellation period had already expired.

65. The applicable law to the dispute in the main proceedings between Mr Endress and Allianz – both private parties – is German law. That law must be interpreted by the referring court so as to ensure conformity with EU law, in particular the Second and Third Life Assurance Directives which applied when the contract was concluded. Yet in a dispute between two private parties, it is well established that directives cannot of themselves impose obligations on an individual and cannot therefore be relied upon as such against an individual. (24)

66. I have reached the conclusion that Article 15 of the Second Life Assurance Directive and Article 31 of the Third Life Assurance Directive are to be interpreted as (i) precluding a Member State from providing that the right of cancellation can no longer be exercised one year after payment of the first premium irrespective of whether the insurer has informed the policy-holder of that right properly and timeously and (ii) precluding a Member State from excluding that certain mandatory information must be communicated to the (future) policy-holder before the conclusion of the contract and that a cancellation period of between 14 and 30 days must be available to him after notification of that conclusion.

67. Either conclusion might have considerable implications for the position of Mr Endress and the insurer in the main proceedings.

68. What those implications are will depend in particular on the extent to which the referring court is able to interpret German law in conformity with the Second and Third Life Assurance Directives. In that regard, in accordance with the Court’s case-law, the referring court must ‘consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive’. (25) That implies that the referring court is required to apply those interpretative methods recognised under national law which enable, in certain circumstances, a provision of national law to be construed in such a way so as to avoid conflict with another rule of national law or the scope of that provision to be restricted by applying it only in so far as it is compatible with the rule concerned. (26) At the same time, the obligation to refer to a directive when interpreting and applying national law ‘is limited by general principles of law, particularly those of legal certainty and non-retroactivity’ and ‘cannot serve as the basis for an interpretation of national law contra legem’. (27)

69. If the result prescribed by the relevant directives cannot be achieved in that manner, it is also well established that national law may need to be set aside (28) and that, in so far as damage has been suffered and that damage is due to a breach by a Member State of its obligations, the referring court must ‘uphold the right of aggrieved consumers to obtain reparation in accordance with national law on liability’. (29)

70. Allianz has requested that, in so far as the Court finds that national legislation such as the one-year rule was precluded by the Second and Third Life Assurance Directives, the Court should limit the temporal effects of its ruling. (30) In that context, Allianz asserts that more than 108 million contracts concluded between 1995 and 2007, under which premiums totalling around EUR 400 billion were paid, might be affected by the ruling. (31) Allianz states that it itself concluded around 9 million such contracts during that period, receiving premiums of around EUR 62 billion.

71. Limiting the temporal effects of a ruling is an exceptional step which the Court has taken only where (i) ‘there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force’ and (ii) ‘it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of EU provisions, to which the conduct of other Member States or the European Commission may even have contributed’. (32) Financial consequences of themselves cannot justify this exceptional action. (33)

72. In the present case, I consider that there are insufficient elements to justify limiting the temporal effect of the Court’s judgment. There is no evidence before the Court as to the likelihood that life assurance contracts which may be affected by its ruling will be cancelled, the resulting economic cost to the insurer(s) or the extent of a risk of serious economic repercussions. Nor am I convinced that ‘objective, significant uncertainty’ regarding the EU provisions at issue led at least the national authorities either to maintain the policy model or to use payment of the first premium as the starting point for calculating the relevant period under the one-year rule.

73. In the light of the foregoing, I suggest that the Court should answer the question referred by the Bundesgerichtshof to the following effect:

Article 15(1) of Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC, read together with Article 31 of Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC, are to be interpreted as precluding a national provision under which a right to cancel a life assurance contract lapses one year at the latest after payment of the first premium, irrespective of whether the policy-holder was informed of that right properly and timeously.

2 – This is referred to in the relevant directive as a ‘cooling-off period’: see point 9 below.

3 – Council Directive of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC (OJ 1990 L 330, p. 50). The Second Life Assurance Directive was amended by Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive) (OJ 1992 L 360, p. 1) (‘the Third Life Assurance Directive’). The latter, in turn, has also been amended several times. The Second Life Assurance Directive was repealed by Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ 2002 L 345, p. 1) (‘Directive 2002/83’) which, in turn, has been repealed by Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1). Articles 35 and 36 of Directive 2002/83 concern, respectively, the right of cancellation and the obligation to communicate certain information to policy-holders. Their terms are similar to those at issue in the present case. In this Opinion, I will refer to the Second Life Assurance Directive and the Third Life Assurance Directive collectively as ‘the Second and Third Life Assurance Directives’. Because both directives have now been repealed, I refer to them throughout in the past tense.

4 – First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance (OJ 1979 L 63, p. 1), as amended (subsequently repealed by Directive 2002/83).

6 – See, for example, recital 19 in the preamble to the Third Life Assurance Directive.

7 – See also, for example, the Dutch text (‘[w]ijze van uitoefening van het recht van opzegging’) and the Spanish text (‘[m]odalidades de ejercicio del derecho de renuncia’).

12 – Indeed, several comparable cases are currently pending before the Court: Case C-439/12 Gawelczyk, Case C-459/12 Krieger, Case C-529/12 Lange and Case C-590/12 Merten.

13 – In the context of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31) (‘the Doorstep Selling Directive’), compare, for example, with Case C-227/08 Martín Martín [2009] ECR I-11939, paragraphs 34 and 35. (That directive will be repealed as of 13 June 2014 by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).)

14 – See footnote 13 above. I note that, in these different directives, the legislator has not adopted a uniform approach to the obligation to communicate information prior to the conclusion of the contract and the right of cancellation; nor is the division of competences between the EU and the Member States described in uniform terms. The case-law of the Court involving the Doorstep Selling Directive cannot therefore automatically be transposed to the Second and Third Life Assurance Directives: elements specific to a particular directive at issue must be distinguished from elements that apply generally.

15 – Case C-481/99 [2001] ECR I-9945, paragraph 45; see also point 60 of Advocate General Léger’s Opinion in that case and the judgments in Case C-412/06 Hamilton [2008] ECR I-2383, paragraph 33, and Martín Martín, cited in footnote 13 above, paragraphs 25 and 26.

17 – The Court adopted a similar rationale in another case involving the Doorstep Selling Directive, with respect to the consequences of the failure to inform the consumer of his right of cancellation: see, for example, Case C-350/03 Schulte [2005] ECR I-9215, paragraphs 100 and 101.

19 – In response to a question put to it at the hearing, the German Government accepted that the policy model favoured the insurer.

21 – Article 15 of the Second Life Assurance Directive, as amended by the Third Life Assurance Directive, and Article 31 of the Third Life Assurance Directive.

24 – See Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 108 and case-law cited.

25 – Pfeiffer and Others, cited in footnote 24 above, paragraph 115 and case-law cited.

27 – Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraph 110 and case-law cited.

28 – Case C-555/07 Kücükdeveci [2010] ECR I-365, paragraph 51 and case-law cited.

29 – Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 29, and see also more recently, for example, Adeneler and Others, cited in footnote 27 above, paragraph 112 and case-law cited.

30 – See, for example, the similar argument advanced by the bank in Heininger, cited in footnote 15 above, paragraph 49.

31 – Given that the population of Germany was estimated as 82 million in 2010, I have some difficulty in accepting the proposition that more than 108 million life assurance contracts were concluded over the period 1995–2007.

32 – Case C-465/11 Forposta (formerly Praxis) and ABC Direct Contact [2012] ECR I-0000, paragraph 45 and case-law cited.

33 – Forposta (formerly Praxis) and ABC Direct Contact, cited in footnote 32 above, paragraph 47 and case-law cited.

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