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Published online by Cambridge University Press: 20 January 2017
Judgment of the Court (fifth Chamber) of 1 March 2012 (reference for preliminary ruling), Case C—166/11: Ángel Lorenzo González Alonso v Nationale Nederlanden Vida Cía. de Seguros y Reaseguros, S.A.E. (Spain)**
A contract concluded away from business premises, under which life assurance is offered in return for payment of a monthly premium to be invested, in varying proportions, in fixed-rate investments, variable-rate investments and financial investment products of the company offering the contract, falls outside the scope of Council Directive 85/577/ EEC of 20 December 1985, to protect the consumer in respect to contracts negotiated away from business premises, in accordance with Article 3(2)(d) thereof (official headnote).
** Not yet published.
1 Under Article 3(1) and (2) of Law 26/1991:
“1. The contract or contractual offer… shall be set down in writing, in duplicate, with a cancellation notice, and shall be dated and signed by the consumer in his own hand.
“2. The contract document shall include… a clear and precise reference to the right of the consumer to withdraw the consent given and to the conditions for and consequences of the exercise of that right”.
By virtue of the first paragraph of Article 4 of Law 26/1991, “[a] contract concluded or an offer made in breach of the conditions laid down in Article 3 may be cancelled at the request of the consumer”.
2 Question referred to the Court, according to number 23 of the ECJ judgment.
3 See supra note 1.
4 While this law has been repealed by Royal Legislative Decree 1/2007, of 16 November, approving the Codifi ed Text of the General Law for the Protection of Consumers and Users (BOE no.287, 30.11.2007), the new regulation contains the same exclusion clause regarding insurance contracts, and it also recognizes the customer's right of cancellation in case of breach of the information duties by the company (Art. 110 et sqq.).
5 In this regard, the Directive leaves it to the Member States to establish the consequences of the breach of duties (Art. 4 in fi ne). National laws provide different sanctions in the event of non-compliance; thus, among others, the French Code de la Consommation, in its Art. L121–123, sets out the right of cancellation, like the Spanish law, while under Art. 312 of the German BGB, according to the academic doctrine, the company's failure to fulfill its information duties entitles the customer to claim damages in conformity with Art. 280.1 BGB.
6 Judgment of the Court of First Instance no.4 of Oviedo, 6 July 2009.
7 In accordance with the second legal ground of the Judgment 1057/2012 of the Audiencia Provincial no.1 de Oviedo of 24 April 2012, whereby the appeal is dismissed once given the judgment of the preliminary ruling.
8 Art. 267 TFEU.
9 Judgment of 22 April 1999, C-423–97, Travel Vac.
10 OJ L 345, 19.12.2002, 1.
11 OJ L 63, 13.03.1979, 1.
12 The new Directive 2009/138/EC (Solvency II. OJ L 335, 17.12.2009, 1), which brings the repeal of the current one as of 1 October 2012, also includes unit-linked products within the category of life assurance.
13 According to EIOPA's recent Initial Overview of Key Consumer Trends in the EU of 1 February 2012. The second key consumer trend refers to an increased focus on unit-linked life insurance products.
14 OJ L 304, 22.11.2011, 64.
15 Distance contracts are currently regulated by Directive 97/7/EC, of 20 May 1997, on the protection of consumers in respect of distance contracts, OJ L 144, 04.06.1997, 19. This Directive will be repealed as of 13 June 2014 together with Directive 85/577/EEC.
16 It extends the wider exclusion clause of financial services that was already provided for distance ones in Directive 97/7/EC, to contracts negotiated away from business premises.