PROVISIONS OF THE INSURANCE CODE ON LIFE INSURANCE
Whereas, according to the judgment under appeal (Paris, January 18, 2005), that Mr X .. (the insured) took out on November 5, 1999 with the company La Mondiale Partenaire (the insurer) a life insurance contract multisupport; that in the subscription form, he acknowledged “having received and taken cognizance of the general conditions and their appendices” serving as an information note of the contract; that he opted for a formula in which he reserved himself, approximately half of the funds, the possibility of managing himself; that he paid the sum of 2,020,202 francs at the subscription and then, on January 11, 2000, 2,500,000 francs; that, dissatisfied with the evolution of his capital and criticizing the insurer for not having complied with its pre-contractual obligation to provide information when taking out the contract, as provided for by article L. 132-5-1 of the Insurance Code, Mr X … intended to exercise, on November 6, 2001, the right of waiver provided for by this text; that before the refusal of the insurer, he made summon the latter before the tribunal de grande instance in restitution of the capital invested under the conditions provided for by the third paragraph of the aforementioned text;
On the first plea:
Whereas the insurer criticizes the judgment for having granted the request of Mr X …, then, according to the means:
1 ° / that article L. 132-5-1of the Insurance Code, in that it fixes in paragraph 1 the starting point of the waiver period of 30 days of the first payment and in that it provides in paragraph 2 that the failure to submit documents and information that ” it lists automatically entails the extension of the waiver period provided for in the first paragraph until the 30th day following the date of delivery of the documents, is not compatible with the precise and unconditional provisions of Article 35 of Directive 2002 / 83 / EEC on direct life insurance which impose on Member States the obligation to set the waiver period “between 14 and 30 days from the moment from which the policyholder is informed that the contract has been concluded”; that the provisions of paragraph 2 of article L. 132-5-1of the Insurance Code which sanction the insurer’s obligation to inform the insured by an extension of the waiver period, or by an unlimited duration of this period, are not in this respect yet compatible with the provisions of the ‘Article 35 of the Directive and its Article 36 entitled: “Information to policyholders”, these two articles establishing no link between the information which must, according to Article 36, be given to policyholders and the duration and point of start of the waiver period, as imperatively fixed by article 35; that by declaring domestic law compatible with Directive 2002/83 / EEC to refuse to interpret the provisions of Article L. 132-5-1of the Insurance Code in the light of the European text and the purpose of the directive, which aims to unify the life insurance market in the community and not to protect the insured, the Court of Appeal violated Article 249, paragraph 3 (former Article 189, paragraph 3) of the Treaty establishing the European Community as well as Articles 35 and 36 of Directive 2002/83 / EEC;
2 ° / that under article 234 of the EEC Treaty (former article 177): “The Court of Justice is competent, to rule on a preliminary basis, […] on the validity of the interpretation of the acts taken by the institutions of the Community. When such a question is raised before a court of one of the Member States, that court may, if it considers that a decision on this point is necessary to give its judgment, ask the Court of Justice to rule on this question ” ; that the preliminary ruling procedure is a judicial cooperation procedure by which national courts and the Court of Justice, in the order of their jurisdiction, are called upon to contribute to the preparation of a decision with a view to ensuring uniform application community law;
But expected, on the first branch, that, insofar as the action of Mr X … was not based on the exercise of the cooling-off period instituted by paragraph 1 of article L. 132-5- 1 of the Insurance Code, the plea which challenges the compatibility of this precise text with Directive 2002/83 / EEC of the European Parliament and of the Council on direct life insurance, is it well founded, is inoperative;
Whereas, then, it follows from the constant case-law of the Court of Justice of the European Communities that, when Community legislation does not contain any specific provision providing for a sanction in the event of a violation or refers on this point to legislative, regulatory and administrative authorities, Article 10 of the EEC Treaty requires Member States to take all appropriate measures to guarantee the scope and effectiveness of Community law in the substantive and procedural conditions conferring on the sanction an effective, proportionate and dissuasive character;
That thus, while the purpose of Directive 2002/83 / EEC, as it results from its preamble, is to ensure that the policyholder has the greatest possible access to insurance products by ensuring him, for take advantage of increased competition within the framework of a single insurance market, the information necessary to choose the contract best suited to its needs, especially since the duration of its commitments can be very long, in status of article L. 132-5-1, paragraph 2, of the Insurance Code which lists the documents and information that must be given to the subscriber before the conclusion of the contract, the texts invoked by the first branch of the plea do not prevent the failure to submit these documents and information is sanctioned by virtue of the same article L. 132-5-1 by the extension of the waiver period provided for in its second paragraph and by the return, in the event of waiver, of all the sums paid by the subscriber under the conditions set by the third paragraph;
That by this reason of pure right, substituted for those criticized, the referred decision is legally justified;
Whereas, finally, in its second branch, the plea is ineffective in that it criticizes the exercise by the substantive judges of a power handed over to their discretion, since, despite the erroneous but overabundant reason criticized by the means, they considered that Article L. 132-5-1 of the Insurance Code was in line with Community law;
From which it follows that the plea is unfounded;
On the second plea:
Whereas the insurer still complains against the judgment of having granted the request of Mr X …, then, according to the means:
1 ° / that, in Annex III of Directive 2002/83 / EEC to which Article 36 refers, does not appear among the information to be communicated to the policyholder before the conclusion of the contract the fate of the death guarantee which the court of ‘appeal, reversing the judgment in this regard, accuses the company La Mondiale of not having informed Mr. X ..; that by asserting that the information mentioned in article A. 132-4 of the Insurance Code corresponds to that listed in appendix III of the directive, the court of appeal infringed article 36 of the directive and its annex III;
2 ° / that Annex III of the directive specifies as a preliminary point that “the following information which must be communicated to the lessee, either A, before the conclusion of the contract, or B, during the term of the contract, must be formulated in clear and precise, in writing, and be provided in an official language of the Member State of the undertaking ”; that by affirming that Annex III to the directive provides for two separate documents, namely an information notice and the general conditions of the contract, that it expressly provides that the note is necessarily distinct from the general conditions, that it requires the establishment of two documents, on the one hand, the information to be provided before the conclusion of the contract, on the other hand,
3 ° / that thus it is supported in the second branch of the first plea of cassation, does not constitute a procedural exception, as defined by article 73 of the new Code of Civil Procedure and to be, by application of article 74 of the same Code, raised before any defense on the merits on pain of inadmissibility, the request of a party tending, like that of the company La Mondiale, that the court of appeal use the prerogative that it confers Article 234 of the EEC Treaty and asks the Court of Justice for preliminary rulings concerning the interpretation of the provisions of Article 36 of Directive 2002/83 / EEC relating to the information of policyholders; that by declaring inadmissible this request of the company La Mondiale because, constituting an exception of procedure,
But given, on the second part of the plea which is preliminary, that it follows from the provisions of Article 36 of the directive relating to the information of policyholders that, if before the conclusion of the contract at least the information listed in Annex III point A must be communicated to the lessee, the Member State may require the provision of additional information which would appear necessary for the lessee to effectively understand the essential elements of the commitment; whereas this text provides that the modalities of its application and of Annex III are to be adopted by the Member State;
That it follows from this that the formalism of Article L. 132-5-1 of the Insurance Code, the public order provisions of which tend to ensure the clearest information of the policyholder qualified as a consumer by recital no.52 of the directive, constitutes a simple modality of application of article ~ 36-I of annex III of the directive;
And given that the judgment holds that the insurer cannot validly maintain that the directive does not require the provision of two separate documents, namely the information notice and the general conditions, the delivery to the subscriber of a note of information on the essential provisions of the contract being necessarily distinct from the general conditions of the contract which constitute the contract itself;
Whereas in its first part, the plea attacks a superabundant reason, the contested decision being justified by its other reasons, not criticized by the appeal, relating to the absence of information, even in the general conditions, on redemption fees charged by the insurer, information relating to the tax regime, information on loyalty guarantees, reduction values and redemption values;
Whereas in its third branch, the plea is ineffective in that it criticizes the exercise by the substantive judges of a power handed over to their discretion, once they had ruled the provisions of article L. 132-5-1 of the Insurance Code in line with article 36 of the directive;
From which it follows that the plea is unfounded;
On the third plea:
Whereas the insured still criticizes the judgment for having granted the request of Mr X …, then, according to the means:
1 ° / that a party can always, after the birth of the right, waive the application of a law, even if it is of public order; that the right of the insured to renounce the contract is open to him, under the terms of article L. 132-5-1 of the Insurance Code, from the first payment; that the information that the insurer must communicate to the subscriber must be communicated before the conclusion of the contract, the latter is perfectly able to ascertain, before the expiry of the period of 30 days following the first payment, that all the information required is not have not been communicated to him, and in particular that he has not received two separate documents, namely an information note, on the one hand, and the general conditions of the contract, on the other; that the right of renunciation, derogating from the principle of the binding effect of the contract, unequivocally waives the right to renounce the contract the subscriber who, as the company La Mondiale argued in its summary conclusions, perform the contract for two years by carrying out several successive arbitrations, by deciding alone to modify its stock market supports and by choosing new supports alone; that while noting that the company La Mondiale invoked the execution of the contract by Mr X …, the court of appeal, which confined itself to asserting that no act on the part of the latter showed that he had the unequivocal desire to waive his right of withdrawal, violated article 1134 of the Civil Code as well as article L. 132-5-1 of the Insurance Code;
2 ° / and that, failing to have specified what the actions of the insured consisted of which, according to it, would not be sufficient to demonstrate its unequivocal desire to waive the right of withdrawal, the Court of Appeal deprived its decision legal basis with regard to the same texts;
But given that, according to Article L. 132-5-1 of the Insurance Code, failure to provide the documents and information listed in paragraph 2 of this text automatically entails the extension of the waiver period provided for by its first paragraph; that under Article L. 111-2 of the Insurance Code, these provisions are of public order;
That it follows that the waiver of the benefit of the public order provisions of Article L. 132-5-1 is not possible;
That by this reason of pure right, substituted for those criticized, the referred decision is legally justified;
On the fourth plea:
Whereas the insurer still criticizes the judgment for having granted the requests of the insured, then, according to the means:
1 ° / that in the event that the subscriber renounces the contract, the latter can no longer receive any performance whatsoever and, therefore, the insurer owes the guarantee in the event of death; that, moreover, the right of renunciation being a personal right to the subscriber, this one is necessarily alive when he renounces the contract; that the question therefore cannot arise as to whether the sums which, under the terms of paragraph 3 of Article L. 132-5-1 of the Insurance Code, must be returned by the insurer within 30 days of from the receipt of the letter from the insured notifying his renunciation of the contract, must be delivered to the designated beneficiary or his heirs, be integrated or not in the estate assets; that, holding as it did, the court ofL. 132-5-1 of the Insurance Code;
2 ° / that, the insured losing his quality of subscriber of a life insurance contract by renouncing this contract, cannot in any case be applied to the sums that the insurer must return following this waiver of the rules specific to the life insurance contract which allow the subscriber of such a contract to escape the rules of inheritance law relating to the report and reduction of gifts for infringement of the hereditary reserve, the rules of matrimonial regimes relating to rewards due to the community and the rules of tax law relating to transfer rights in the event of death; that in determining itself as it did, the Court of Appeal violated Articles L. 132-12, L. 132-13, L. 132-16 of the Insurance Code and Article L. 757- B of the General Tax Code;
But whereas the Court of Appeal having held that the information notice was not delivered to the insured, the means is inoperative;
On the fifth plea:
Whereas the insurer finally criticizes the judgment for having accepted the requests of Mr X …, then, according to the means:
1 ° / that, according to paragraph 3 of article 1134 of the Civil Code, the agreements must be executed in good faith; that the requirement of good faith lacks the insured person who, perfectly able to know within the period of 30 days provided for in paragraph 1 of Article L. 132-5-1 of the Insurance Code, the documents and information demanded which would not have been communicated to it by the insurer and which, by proceeding, within the framework of the contract, to successive and increasingly speculative arbitrage operations, demonstrates, by such behavior, that the information which would have been omitted has not failed him, that he had a perfect understanding and mastery of the insurance contract, decides, two years after the conclusion of the contract, under the pretext of a lack of information, to renounce the contract in order to avoid the consequences of the financial risks incurred as a result of a drop in the stock market supports that he has freely chosen; that by retaining, to reject the plea drawn by the company La Mondiale from the bad faith of Mr X …, that the legislator intended to force the insurer to provide the subscriber with sufficient information and chose to attach this obligation to an automatic sanction whose application cannot be subordinated to the circumstances of the case, the court of appeal violated article 1134 of the Civil Code;
2 ° / that, the purpose of the right of renunciation being, as the company La Mondiale argued in its conclusions, the protection of the subscriber against an ill-considered commitment, made without his consent having been sufficiently informed, characterizes a misuse of the provisions of Article L. 132-5-1 of the Insurance Code and an abusive exercise of the waiver right that it establishes the exercise by the subscriber of this right for the sole purpose of making the insurer bear the financial consequences of its stock market choices; that by refraining from investigating, as the La Mondiale company invited in its conclusions, whether Mr.
But given that it follows from Article L. 132-5-1 of the Insurance Code, of public order, and in accordance with Directive 2002/83 / EEC of 5 November 2002, that the exercise of the right to extended waiver open as of right to sanction the failure to provide the insured with the documents and information listed by this text is discretionary for the insured whose good faith is not required;
And given that the judgment states exactly that, by the provisions of the aforementioned article, the legislator intended to compel the insurer to provide the subscriber with sufficient information and accompanied this obligation with an automatic sanction, the application of which does not may be subject to the circumstances of the case;
From which it follows that the plea is unfounded;
FOR THESE REASONS :
DISMISSES the appeal;
