CAA clarifications on the notion of insurance intermediary in the context of group insurance contracts

On 24 January 2024, the Commissariat aux Assurances (the “CAA”) released an information note regarding the notion of insurance intermediary in the context of group insurance contracts (the “Note”).

The Note was published following the judgment rendered by the European Court of Justice (the “ECJ”) on 29 septembre 2022 (Case C-633/20), in which the ECJ considered that “the concept of ‘insurance intermediary’ and, therefore, that of a ‘distributor of insurance products’, […] covers a legal person whose activity consists in offering its customers membership on a voluntary basis, in return for a payment that it receives from them, of a group insurance policy to which it has subscribed previously, where that membership entitles those customers to insurance benefits […]”.

In the Note, the CAA follows the position taken by the ECJ and states that the policyholder of a group insurance contract (the “Sponsor”) may, under certain circumstances, qualify as an insurance intermediary.

The CAA reminds Sponsors of their responsibility to identify and assess, on a case-by-case basis, whether their activities fall within the scope of insurance distribution, as defined under the law of 7 December 2015 on the insurance sector, as amended (the “Insurance Sector Law”). The CAA further sets out a non-exhaustive list of factors to be taken into account for the purpose of this assessment, inter alia (i) whether insurance cover is optional or compulsory, (ii) the role and responsibility of the policyholder, (iii) the insurance interest, (iv) the importance of the insurance product among the products/services provided and (v) the qualification of the customer/policyholder under the insurance contract.

Sponsors that qualify as insurance intermediaries thus need to comply with (i) authorisation/registration requirements (as (ancillary) insurance intermediaries) and (ii) applicable rules of conduct, in accordance with the Insurance Sector Law.

Lastly, the CAA reminds insurance undertakings of their legal obligation to only use the services of intermediaries which are duly authorised/registered.