1.

Under what circumstances and for how long can a policyholder cancel a life assurance contract on the ground that no information or incorrect information on cancellation was supplied?

2.

Under the relevant provisions of the Insurance Directives, a policyholder has the right to cancel a life assurance contract within a short period after the contract has been concluded. The insurer must ensure that adequate information regarding that right is supplied in the course of the contract formation process.

3.

In the present cases, which stem from four requests for preliminary rulings from two Austrian courts, the Court is to clarify, in essence, in what cases does a failure to supply proper information mean that that information is so unfit for purpose as to render it tantamount to providing no information whatsoever. For such cases the Court is also asked to clarify how long the policyholder can retain the right of cancellation. If an exceptional, later cancellation is permitted or even required by EU law, it is lastly asked about the requirements under EU law in respect of the legal consequences of a declaration of cancellation.

4.

Because of the different points in time at which the life assurance contracts at issue in the main proceedings were concluded, the provisions of different directives are to be applied and interpreted. Whilst the questions referred in Cases C‑355/18, C‑356/18 and C‑357/18 and the second question referred in Case C‑479/18 are to be examined in the light of the Second ( 2 ) and Third ( 3 ) Life Assurance Directives, ( 4 ) the subsequent Directives 2002/83 ( 5 ) and 2009/138 ( 6 ) are also relevant to the other questions referred in Case C‑479/18. Because the provisions of the directives to be interpreted are substantively similar, however, this does not result in any differences.

5.

Article 15(1) of the Second Life Assurance Directive provided:

‘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 …, notably as regards the arrangements for informing the policy-holder that the contract has been concluded.’

Article 35(1) of Directive 2002/83 and Article 186(1) of the Solvency II Directive largely reflect that provision.

6.

Article 31(1) and (4) of the Third Life Assurance Directive provided:

‘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.

…

4.   The detailed rules for implementing this Article and Annex II shall be laid down by the Member State of the commitment.’

Article 36(1) of Directive 2002/83 and Article 185 of the Solvency II Directive contain similar provisions.

7.

Annex II (‘Information for policy-holders’) to the Third Life Assurance Directive listed under point A information which was to be communicated to the policyholder before the contract was concluded. ( 7 ) According to the first sentence of that Annex, the information to be communicated ‘must be provided in a clear and accurate manner, in writing, in an official language of the Member State of the commitment’. ( 8 ) Under point A(a.13), such information included the ‘arrangements for application of the cooling-off period’. ( 9 )

8.

Paragraph 165a of the Austrian Versicherungsvertragsgesetz (Law on insurance contracts; ‘VersVG’), in the version applicable in the main proceedings in Cases C‑356/18 and C‑357/18 and in main proceedings A and B in Case C‑479/18, ( 10 ) read:

‘(1)   The policyholder shall be entitled to cancel the contract within 2 weeks after it has been concluded. If the insurer has granted provisional cover, it shall be entitled to the premium corresponding to the duration thereof.

(2)   If the insurer has not complied with the obligation to disclose its address (first line of Paragraph 9a(1) of the VAG), the period for cancellation under subparagraph 1 shall not begin to run before the policyholder has been informed of that address.

(3)   The foregoing subparagraphs shall not apply to group insurance contracts or contracts with a duration of 6 months or less.’

9.

The version of Paragraph 165a of the VersVG ( 11 ) applicable in the main proceedings in Case C‑355/18 and in main proceedings C in Case C‑479/18 extended the period mentioned in subparagraph 1 to 30 days. The version of Paragraph 165a of the VersVG relevant in main proceedings D in Case C‑479/18 contains a newly inserted subparagraph 2a, ( 12 ) which is worded as follows:

‘(2a)   If the policyholder is a consumer (second line of Paragraph 1(1) of the Konsumentenschutzgesetz (Law on consumer protection; ‘KSchG’)), the period for cancellation under subparagraphs (1) and (2) shall begin to run only once the policyholder has also been informed of this right of cancellation.’

10.

Paragraph 9a(1) of the Austrian Versicherungsaufsichtsgesetz (Law on insurance supervision, ‘VAG’), in its versions relevant to the main proceedings (BGBl. No 447/1996 and BGBl. I No 34/2015), read, in extracts, as follows:

‘(1)   In the event of conclusion of an insurance contract relating to a risk situated in Austria, prior to submission of his contractual declaration the policyholder must be informed in writing of

…

11.

All the main proceedings concern claims made by natural persons for repayment of all insurance premiums paid, including capitalised interest, which they are asserting as policyholders against the respective life assurance providers. The claims are based on declarations of cancellation made by the policyholders concerned long after the contract was concluded, in some cases even after the contract in question was terminated (‘late cancellation’).

12.

In support of their claims, the applicants in the main proceedings maintain, in essence, that they were either not informed at all by the insurers concerned (proceedings B in Case C‑479/18) or were at least informed incorrectly about their right of cancellation. The information supplied was incorrect because it stated that the effectiveness of the declaration of cancellation depended on it being made in writing (Schriftform), whilst under national law there are no requirements as to the form in which the declaration is made. The policyholders were thereby hindered in the exercise of the right of cancellation which they were guaranteed by EU law with the result that the period for making the declaration of cancellation did not begin to run.

13.

The applicant policyholders and the defendant insurers in the main proceedings are in dispute as to whether the right of cancellation had already expired when it was exercised. There is also disagreement on whether the policyholder’s payment claims are limited to the relevant surrender value at the time of the termination of the contract or whether all the premiums paid are to be reimbursed pursuant to the principles of reversal of the contract in accordance with the law on unjust enrichment.

14.

In Cases C‑355/18 to C‑357/18, the applicant policyholders base their claims, in essence, on the argument that they were entitled to late cancellation because they had been incorrectly informed about the form that the declaration of cancellation had to take. After their claims were granted at first instance, the referring court, the Landesgericht Salzburg (Regional Court, Salzburg, Austria), as the appellate court, considers it necessary for the Court to interpret the relevant provisions of the Insurance Directives because it has doubts to what extent information supplied can be considered ‘incorrect’ where it did not mislead the policyholder as to the existence of his or her right of cancellation.

15.

In Cases C‑355/18 and C‑356/18, the declaration of cancellation of the contract was made after that contract had been terminated by notice of termination or repurchase. By contrast, the life assurance contract at issue in Case C‑357/18 had not been terminated previously by a notice of termination when the declaration of cancellation was made.

16.

The request for a preliminary ruling in Case C‑479/18 has its origin in four sets of proceedings — referred to by the referring court, the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna, Austria), as proceedings A to D — which concern similar actions brought by policyholders against their respective insurers seeking the reversal of life assurance contracts. Those policyholders had likewise made their declaration of cancellation long after the contract was concluded on grounds of incorrect information or no information being supplied. In proceedings B, the policyholder had made her declaration of cancellation on grounds of no information being supplied after the contract had been terminated and the associated surrender value paid out.

17.

In Cases C‑355/18 and C‑356/18 the Landesgericht Salzburg (Regional Court, Salzburg) has referred the following questions to the Court for a preliminary ruling:

18.

In Case C‑357/18 the Landesgericht Salzburg (Regional Court, Salzburg) has referred only the first of those two questions to the Court for a preliminary ruling.

19.

By decision of the President of the Court of 22 June 2018, Cases C‑355/18, C‑356/18 and C‑357/18 were joined for the purposes of the written and oral procedure and the judgment.

20.

In Case C‑479/18, the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna) stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

21.

By decision of the Court of 26 February 2019, Case C‑479/18 and Joined Cases C‑355/18, C‑356/18 and C‑357/18 were joined for the purposes of the oral procedure and the judgment.

22.

In the preliminary ruling proceedings before the Court, written observations have been submitted by the parties in the main proceedings, the Republic of Austria, the Czech Republic, Italy and the European Commission. The same parties, except for the applicant in main proceedings C in Case C‑479/18, Italy and the Czech Republic, were also represented at the hearing on 11 April 2019.

23.

By reference to the relevance of national law for the assessment of information on cancellation, the applicant policyholders in Cases C‑355/18, C‑356/18 and C‑357/18 question the jurisdiction of the Court to answer the questions referred for a preliminary ruling.

24.

The assessment of whether information on cancellation was properly supplied in a specific case must in fact be made primarily having regard to the applicable national law. ( 13 ) This follows, first, from the fact that under Article 31(4) of the Third Life Assurance Directive, Article 36(4) of Directive 2002/83 and Article 185(8) of the Solvency II Directive the Member States are to lay down the detailed implementing rules concerning the information required by EU law. The information includes ‘arrangements for application of the cooling-off period’, which are also to be determined by the Member States under the third subparagraph of Article 15(1) of the Second Life Assurance Directive, the third subparagraph of Article 35(1) of Directive 2002/83 and the third subparagraph of Article 186(1) of the Solvency II Directive.

25.

It is therefore, in principle, for the referring courts in the present cases to determine whether national law precludes a notice in information on cancellation that the declaration of cancellation must adhere to a specific form in order to be effective.

26.

However, when adopting those implementing rules, the Member States are required ‘to ensure the effectiveness of the … [Insurance Directives], taking account of their aims’. ( 14 ) In this regard, it is for the Court to review observance of this general limit on the Member States’ regulatory powers.

27.

In addition, the referring court in Cases C‑355/18, C‑356/18 and C‑357/18 would ultimately like to know what requirements in respect of the form to be taken by the declaration of cancellation and related information can be inferred from the cited provisions of the directives.

28.

There is thus no doubt as the jurisdiction of the Court to answer the questions referred in Cases C‑355/18, C‑356/18 and C‑357/18.

29.

Furthermore, issue is taken with the incomplete description of the relevant provisions of national law in the orders for reference in Cases C‑355/18, C‑356/18 and C‑357/18 and, for that reason, it is suggested that they be rejected as inadmissible.

30.

This submission made by the applicant policyholders is not convincing, especially in the light of the division of competences between the Court of Justice and the referring courts highlighted by those same parties. In so far as the questions referred concerning the form to be taken by the declaration of cancellation are ultimately aimed at clarifying the Member States’ regulatory powers in determining arrangements for the exercise of the right of cancellation, the description of the tenor of any national provisions that may be applicable in the case and their interpretation by national courts in any case meet the requirements under Article 94 of the Rules of Procedure.

31.

All the questions referred in Joined Cases C‑355/18, C‑356/18 and C‑357/18 are therefore admissible.

32.

The questions referred relate, in essence, to the three points of law already mentioned in the introduction. ( 15 )

33.

In the first place, it must be considered in what cases information on cancellation fails to fulfil its purpose in the same way as no information being supplied (A). In so far as the applicant policyholders in the main proceedings seek to infer this from the incorrectness of statements made in pre-contractual information, the referring court would like to ascertain, by the first or sole question referred in Cases C‑355/18, C‑356/18 and C‑357/18, whether and to what extent the Insurance Directives determine the content of statements to be communicated as part of the information on cancellation.

34.

In the event that incorrect information being supplied on cancellation might be treated in the same way as no information required by EU law being supplied, it must be considered in the second place — in the context of the examination of the second question referred in Cases C‑355/18 and C‑356/18 and the first three questions referred in Case C‑479/18 — to what extent the Insurance Directives regulate the effects of such a failure to fulfil obligations on the running of the cancellation period (B).

35.

In so far as it is possible for the policyholder to exercise the right of cancellation even long after the contract was concluded because information was not supplied to the policyholder in accordance with the requirements of EU law, it would lastly be necessary to examine the question of the amount of the policyholder’s claims in the event of such late cancellation (fourth and fifth questions referred in Case C‑479/18) (C).

36.

The question arises in this regard whether and to what extent the Insurance Directives actually contain stipulations for assessing the statements to be communicated by the insurer concerned as part of the information regarding the arrangements for the exercise of the right of cancellation. In principle, the Member States have the power to determine such arrangements. ( 16 )

37.

However, since the introduction of the Second Life Assurance Directive, a policyholder who concludes an individual life assurance contract has had the right to cancel that contract within a short period of time. ( 17 ) The policyholder is therefore given the option to withdraw unconditionally from a life assurance contract even after it has been concluded. The period runs from the point in time at which the policyholder is informed that the contract has been concluded.

38.

In order for the policyholder to be able effectively to exercise this right which he or she enjoys under EU law, the insurer must inform the policyholder before the contract is concluded about the arrangements for the exercise of the right of cancellation.

39.

In Endress ( 18 ) the Court made clear in this regard that the relevant provisions of the Second and Third Life Assurance Directives preclude a national provision under which a right of cancellation lapses 1 year at the latest after payment of the first premium where the policyholder has not been informed about the right of cancellation.

40.

In the specific assessment of information on cancellation by the national court, the crucial factor is whether, on the basis of the information supplied, the policyholder has all the necessary information for the effective exercise of his or her right of cancellation.

41.

The necessary information is apparent from the applicable national legislation. ( 19 ) As regards the form and content of the information on cancellation, the relevant provisions of the Insurance Directives ( 20 ) simply require that the written information to that effect is provided ‘in a clear and accurate manner’. ( 21 )

42.

It follows that the information on cancellation must in any case include information on the form to be taken by the declaration of cancellation where the effectiveness of such a declaration is subject to adherence to a specific form under the applicable national legislation.

43.

According to the referring court, Paragraph 165a of the VersVG — the relevant provision of national law in its view — did not provide in any of its versions relevant to the main proceedings that the effectiveness of the declaration of cancellation required adherence to a specific form. ( 22 ) Against this background, the referring court wishes to know, first, whether it is necessary, with a view to supplying accurate information to the policyholder, expressly to indicate in pre-contractual information that the cancellation does not have to be communicated in any specific form.

44.

The further question then arises whether, with this in mind, an insurer must be able, in pre-contractual information, to prescribe a specific form for the effective submission of the declaration of cancellation.

45.

The Austrian Government rightly states that the Member States’ regulatory powers expressly recognised by the Insurance Directives in respect of the conditions for the exercise of the right of cancellation also extend to the question whether cancellation can be declared in any form or requires a specific form.

46.

If the national legislature does not prescribe the required form for the effective submission of a declaration of cancellation, it must likewise be determined, in principle, under national law whether — and if necessary under what conditions — a stipulation as to form can be contractually agreed. The main proceedings specifically concern statements made in pre-contractual information according to which the effectiveness of the cancellation is subject to a written declaration or a requirement that it be made in writing. According to the referring court in Case C‑479/18, the requirement that it be made in writing (Schriftform) ( 23 ) under Paragraph 886 of the Austrian Allgemeines Bürgerliches Gesetzbuch (General Civil Code) means that the declarant must sign by hand or by means of an appropriate electronic signature.

47.

However, the referring courts answer this question concerning the interpretation of national law differently. Whilst the referring court in Case C‑479/18 evidently considers, given the wording of the first question, that a contractually agreed stipulation as to form based on a notice to that effect in the information on cancellation runs counter to the statutory freedom as to form, the referring court in Cases C‑355/18 to C‑357/18 states that ‘national law does not prohibit the agreement of the written form for declarations of cancellation’.

48.

It should be borne in mind in this connection that national courts called upon to interpret national law are required to interpret it, so far as possible, in the light of the wording and the purpose of the relevant directive. ( 24 ) In so far as national law precludes an arbitrary requirement that the declaration be made in writing (or no stipulation that it must be made in writing is agreed), the duty to supply the information prescribed by EU law may be redundant, as a simple notice that no specific form is required may not enable the policyholder effectively to exercise his or her right of cancellation.

49.

A simple notice that it is possible to declare the cancellation in any form does not enable the policyholder to exercise the right of cancellation with legal certainty. In particular, the precise time and content of an oral or telephone declaration of cancellation cannot really be proven, as a rule. The resulting legal uncertainty runs firmly counter to the objective pursued by the Insurance Directives of allowing the policyholder, through accurate information, to exercise the right of cancellation effectively and with legal certainty. Accordingly, Austrian law also now — since 1 January 2019 — expressly prescribes the written form. ( 25 ) This could also explain why in other Member States where there has been no legal regulation of the form to be taken by the declaration of cancellation, the statements made in the information on cancellation or in the insurance application regarding the form of the declaration of cancellation are decisive. ( 26 )

50.

Lastly, a comparison with the provisions on the right of withdrawal under Article 6 of Directive 2002/65 concerning the distance marketing of financial services, ( 27 ) which are applicable in principle to life assurance contracts ( 28 ) where they are concluded with consumers at distance, also indicates that an arbitrary stipulation as to form must be permitted. As regards the form of the declaration of withdrawal, the second sentence of Article 6(6) of Directive 2002/65 provides that the consumer must notify his or her withdrawal ‘before the expiry of the relevant deadline … following the practical instructions given to him [or her by the supplier] … by means which can be proved in accordance with national law’. This shows in any event that the EU legislature attaches special importance to legal certainty in respect of proof of the declaration of withdrawal particularly in the case of sales of financial services, which include individual life assurance contracts.

51.

It follows that the information on cancellation does not ensure the option for the policyholder effectively to exercise the right of cancellation if it simply gives a notice of the possibility of declaring cancellation in any form. That option can be ensured only by a legally binding prescription of the form in which the declaration of cancellation must be submitted. An arbitrary requirement of writing is therefore not only permitted but even required by EU law. Consequently, where the required form has not been laid down by law, it must be specified by a precise statement in the pre-contractual information regarding the right of cancellation.

52.

It is true that the national courts called upon to interpret national law are required to determine whether it is possible to interpret national law in conformity with the directives. If that is the case, ( 29 ) national law must be interpreted in accordance with EU law such that a stipulation as to form may be effectively agreed. This would also mean that it cannot be inferred directly from such an agreement that information on cancellation is incorrect.

53.

This does not affect the power of the referring courts in each individual case to examine whether the contested statements made in the information on cancellation are provided in a sufficiently clear and accurate manner and whether the agreed form does not render excessively difficult the exercise of the right of cancellation by the policyholder.

54.

With regard to the statements at issue in the main proceedings, the national court would have to examine, for example, whether the statements in question are sufficient to enable the policyholder, if necessary, to declare cancellation effectively. If, according to the statements, cancellation requires a written declaration, which evidently must be signed under national law, ( 30 ) it would have to be clarified in particular whether this was made sufficiently clear to the policyholder.

55.

In examining whether the statements regarding the required form render the exercise of the right of cancellation by the policyholder excessively difficult, a comparison with other legal declarations in which a specific form is stipulated would be instructive. The mere existence of a less stringent form — such as written form (geschriebene Form) as opposed to the requirement that the declaration be made in writing (Schriftform) under Austrian law ( 31 ) — would not appear to be sufficient to assume excessive difficulty.

56.

Against this background, the first or sole question referred in Joined Cases C‑355/18, C‑356/18 and C‑357/18 must be answered as follows: Article 15(1) of Directive 90/619/EEC (Second Life Assurance Directive), as amended by Directive 92/96/EEC (Third Life Assurance Directive), in conjunction with Article 31 of Directive 92/96/EEC, must be interpreted as meaning that information regarding the right of cancellation need not contain the notice that the cancellation does not have to be communicated in any specific form. Rather, a notice of a specific form to be respected is not only permitted but also required by EU law.

57.

The referring court clearly takes the view that a reference to cancellation having to be made in written form, despite cancellation being possible in any form under national law, results in the information supplied being incorrect. I do not share that view. ( 32 ) I will therefore address the legal consequences of incorrect information being supplied only in the alternative. In this regard it is possible to apply the finding made in the judgment in Endress according to which the cancellation period does not begin to run where no information is supplied.

58.

EU law does not regulate the legal consequences where either no information or incorrect information on cancellation is supplied. ( 33 )

59.

As is stated by both the referring court, the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna), and the Austrian Government, at first Austrian law did not expressly regulate the effects of no information on cancellation being supplied on the running of the cancellation period. ( 34 ) However, in a judgment of 2 September 2015, ( 35 ) the Oberster Gerichtshof (Supreme Court, Austria) applied mutatis mutandis Paragraph 165a(2) of the VersVG which, on the basis of its wording, relates only to the case of failure to disclose the address of the insurer and, with reference to the Court’s case-law, ( 36 ) ruled that incorrect information on the right of cancellation, which in that case consisted in an inaccurate statement regarding the duration of the cancellation period, is equivalent to no information being supplied. The cancellation period could not therefore begin to run.

60.

Such an interpretation of national legislation is in any event consistent with the spirit and purpose of the rules on cancellation laid down in EU law by the Insurance Directives. If the statements made in pre-contractual information are not sufficient to ensure that the policyholder is able effectively to exercise his or her right of cancellation, such incorrect information fails to fulfil its purpose in the same way as no information being supplied. This can result from the inaccuracy of the statements or from a choice of form which renders excessively difficult the exercise of the right of cancellation. Such an incorrect declaration of cancellation cannot set the period in motion.

61.

However, the period does begin to run if the insurance undertaking accurately specifies in the information supplied that the right of cancellation must be exercised in written form, even though under national law it is possible to cancel in any form. ( 37 )

62.

I therefore propose that the Court answers the first question referred in Case C‑479/18 as follows:

Article 15(1) of Directive 90/619/EEC (Second Life Assurance Directive), as amended by Directive 92/96/EEC (Third Life Assurance Directive), in conjunction with Article 31 of Directive 92/96/EEC, or Article 35(1), in conjunction with Article 36(1) of Directive 2002/83/EC, or Article 185(1), in conjunction with Article 186(1), of Directive 2009/138/EC must be interpreted as meaning that — in the absence of national rules on the legal consequences of incorrect information concerning the right of cancellation before the contract is concluded — the period for exercising the right of cancellation begins to run if the insurance undertaking specifies in the information that the right of cancellation must be exercised in written form, even though under national law it is possible to cancel in any form.

63.

By its second question, which, according to the referring court, is relevant only for proceedings A, it would like to know whether the cancellation period begins to run at the point in time at which, despite no information or incorrect information being supplied, the policyholder was informed of his or her right of cancellation. It is asked only in the event that in the situation at issue the period does not begin to run in any case (‘If the first question is answered in the affirmative’). As I consider that the period does begin, ( 38 ) the question whether the period begins on being informed by other means will be examined only in the alternative.

64.

According to the wording of the Insurance Directives, the duty to supply information on the right of cancellation rests solely with the insurer, while the information covers not only the right of cancellation, but also the arrangements for its exercise. ( 39 ) Specifically because the information supplied is intended to enable the right of cancellation to be effectively exercised, the policyholder merely being informed of the right of cancellation cannot be sufficient to set the cancellation period in motion in any case. ( 40 )

65.

A further argument against consideration of the policyholder being informed of his or her right of cancellation in cases where information has not been properly supplied by the insurer is the associated uncertainty as regards the point in time at which he or she was informed and its demonstrability. It is thus not sufficient, in order for the period to begin, that the policyholder was informed of his or her right of cancellation by other means.

66.

In addition, the referring court and the Commission rightly point out that insurers would not be constrained to comply with their duty to supply information under EU law if the policyholder being informed of the right of cancellation were sufficient, despite information not being properly supplied — in particular regarding the arrangements for its exercise — to set the cancellation period in motion. ( 41 )

67.

I therefore propose in the alternative that the Court answer the second question referred in Case C‑479/18 as follows: Article 15(1) of Directive 90/619/EEC (Second Life Assurance Directive), as amended by Directive 92/96/EEC (Third Life Assurance Directive), in conjunction with Article 31 of Directive 92/96/EEC, must be interpreted as precluding a national rule under which, in the event of no information or incorrect information being supplied on the right of cancellation before the contract is concluded, the period for exercising the right of cancellation begins to run at the point in time at which the policyholder was informed — by whatever means — of his or her right of cancellation.

68.

By their questions, the referring courts wish to know, in essence, whether under the Insurance Directives the policyholder must be permitted to exercise the right of cancellation even after the contract has been terminated and its surrender value has been subsequently paid out.

69.

In all the main proceedings, which concern a contract that has already been terminated, the insurers also dispute the right of cancellation on the ground that cancellation of a previously terminated contract is prevented because no future obligations can arise from a terminated contract. Otherwise, in their view, there would be no purpose to releasing the policyholder from any future obligation arising from the contract under the second subparagraph of Article 15(1) of the Second Life Assurance Directive.

70.

The Austrian Government concurs with this submission and refers, moreover, to the Court’s judgment in Hamilton, according to which the phrase ‘the consumer shall have the right to renounce the effects of his undertaking’ in Article 5 of Directive 85/577 ( 42 ) logically presupposes that the undertaking still exists at the time that the right is exercised. ( 43 )

71.

This argument may be convincing prima facie. Normally, where a contract has already been performed, there is no longer any scope for exercising rights modifying a legal relationship such as cancellation. However, the different legal consequences which national law attaches to termination and cancellation ( 44 ) preclude a limitation to such a formal, superficial approach. Rather, a number of reasons suggest that where no information or incorrect information is supplied, the right of cancellation is also retained in the case of a termination. The policyholder is then possibly entitled to the difference between the amount due in accordance with the national rules laying down legal consequences following the reversal of the contract after cancellation and the surrender value of his or her contract already paid out.

72.

The judgment in Endress can be interpreted as meaning that in the event that no information is supplied a cancellation must also be permitted after a termination. The operative part mentions only that the period is not set in motion where no information has been supplied. However, Mr Endress had given notice of termination of the contract and he had been paid the repurchase value of the contract. ( 45 ) If, therefore, cancellation was no longer possible a priori, the Court would, strictly speaking, have had to reject the question as hypothetical.

73.

There is no need to determine here what inferences are to be drawn from the judgment in Hamilton ( 46 ) concerning Directive 85/577. This is because that judgment concerns whether a national rule which provides for such expiry 1 month after full performance of the duties under a contract by the contracting parties is compatible with that directive. The present case, on the other hand, like the judgment in Endress, does not relate to such a rule, as the national legislature has not enacted any such provision for life assurance contracts. Rather, it is apparent that Austrian law does not include any provision on the temporal existence of the right of cancellation, as is clear from the wording of the third question referred in Case C‑479/18. ( 47 )

74.

Furthermore, the Insurance Directives guarantee that the policyholder is able effectively to exercise his or her right of cancellation, as it is embodied in the national legal order in question. This includes the freedom to choose between cancellation and termination. A policyholder who has not been informed of his or her right of cancellation and the precise arrangements for its exercise cannot, however, exercise that freedom to choose.

75.

The policyholder also cannot lose his or her right of cancellation almost inadvertently by termination. A policyholder who has used the only option purportedly available to him or her to withdraw from an undesirable contract would be in a less favourable position than a policyholder who takes no action. This would run firmly counter to the purpose pursued by the right of cancellation under EU law of giving the policyholder the simple possibility of withdrawing from a contract which does not meet his or her expectations, needs or financial means. ( 48 )

76.

The policyholder has also not forfeited his or her right of cancellation in such a case. A right is forfeited if a long period of time has elapsed since it was possible to assert it and particular circumstances are present which indicate that the delayed assertion is a breach of good faith because it was no longer expected. In any case, however, there are no legitimate expectations on the part of the insurer here, as it brought about the situation itself by failing properly to supply information on cancellation to the policyholder. ( 49 )

77.

In addition, the surrender value ( 50 ) of an insurance contract to be reimbursed in the case of termination is well below the value of the total contributions paid even for old contracts. An expiry of the right of cancellation after the contract has been terminated and its associated surrender value has been paid out would, however, prevent the application of national rules laying down legal consequences in respect of reimbursement of contributions already paid and would thus amount to aligning the legal consequences of cancellation with those of termination. ( 51 ) This would make the right of cancellation guaranteed by EU law redundant.

78.

For all these reasons, I propose that the Court answers the second question referred in Cases C‑355/18 and C‑356/18 and the third question referred in Case C‑479/18 as follows: Article 15(1) of Directive 90/619/EEC (Second Life Assurance Directive), as amended by Directive 92/96/EEC (Third Life Assurance Directive), in conjunction with Article 31 of Directive 92/96/EEC, and Article 35(1), in conjunction with Article 36(1), of Directive 2002/83/EC must be interpreted as meaning that it is still possible for the policyholder to declare his or her cancellation, on grounds of no information or incorrect information being supplied, even after the surrender value has already been paid out to him or her by reason of his or her having given notice to terminate the contract, where national law does not regulate the legal consequences of no information or incorrect information being supplied on cancellation.

79.

The fourth and fifth questions referred in Case C‑479/18 seek to ascertain the extent to which, in the event of exercise of a right of cancellation because no information or incorrect information was supplied, the policyholder’s claims may be restricted.

80.

The Insurance Directives determine the effects of cancellation only in the case of information being properly supplied. The second subparagraph of Article 15(1) of the Second Life Assurance Directive — and the identical successor provisions ( 52 ) — simply make clear that the policyholder is to be released by his or her declaration of cancellation from ‘any future obligation arising from the contract’, whilst the third subparagraph, which concerns ‘the other legal effects and the conditions of cancellation’, refers to the law applicable to the contract.

81.

Neither the wording nor the drafting history of the Insurance Directives give any indication whether the reference to the law applicable to the contract for regulation of the civil-law consequences of a cancellation immediately after the contract has been concluded is also intended to apply to the case of a late cancellation on grounds of no information or incorrect information being supplied. ( 53 )

82.

It follows that the national legislation at issue laying down the civil-law consequences of cancellation is to be assessed solely having regard to whether it adequately ensures the effectiveness of the Insurance Directives taking account of their aims.

83.

By its fourth question, the referring court would like to know whether EU law precludes a national rule under which the surrender value must be reimbursed to the policyholder if he or she exercises his or her right of cancellation.

84.

It was explained above that the policyholder must retain his or her right of cancellation where no information or incorrect information is supplied even after the contract has been terminated and the surrender value of his or her contract paid out. ( 54 ) This is ultimately because of the different legal consequences of termination and cancellation, regardless of how they are organised in the national legal orders. It is not uncommon for notices of termination to have effect ex nunc or pro futuro in principle, while cancellations lead to a repayment obligation ex tunc. It is true that the Insurance Directives provide that, in the event of a cancellation after information has been properly supplied, the policyholder is to be released ‘from any future obligation arising from the contract’. ( 55 ) Under the Insurance Directives, the other legal effects of cancellation — including its effects on contributions already paid — are to be regulated by the national legislature having regard to the principle of effectiveness.

85.

The right of cancellation guaranteed by EU law cannot therefore be neutralised by reason of the national legislature establishing specific legal consequences for late cancellations on grounds of no information or incorrect information being supplied which are the same as the legal consequences for termination under national law. ( 56 ) It is then ultimately no longer an effective right of cancellation, but an exceptional right of termination.

86.

If such rules on legal consequences restrict the policyholder’s claims in comparison with a reversal of the contract in accordance with the law on unjust enrichment, they may not effectively result in it being no longer worth exercising the right of cancellation in practice because of the expected financial consequences.

87.

This could occur in the case of late cancellations if the legal consequences of cancellation were aligned with those of termination, as the more time that passes after the contract has been concluded, the higher the sum of the contributions already paid, which will, to a significant extent, ( 57 ) be irretrievably lost by the policyholder because of such an alignment. This is contrary to the objective of the Insurance Directives of ensuring that the policyholder is able effectively to exercise his or her right of cancellation.

88.

Such a general restriction of the policyholder’s claims also cannot be justified by the argument that it ensures equal treatment of all policyholders. Policyholders who make a declaration of a late cancellation on grounds of no information or incorrect information being supplied are not in a comparable situation with policyholders who have not exercised their right of cancellation after information has been properly supplied and seek an early termination of the contract at a later time. ( 58 )

89.

Lastly, the national court is free to take account of an undeniable risk of abuse (particularly in the case of unit-linked life assurance contracts) in a specific case. ( 59 )

90.

This has already been taken into consideration, for example, by the Cour de cassation (Court of Cassation, France) in its judgment of 7 February 2019 ( 60 ) concerning a late cancellation on grounds of allegedly incorrect information on cancellation. It found that the lower court could not rule out an abusive exercise of the right of cancellation without adequately assessing the time of the cancellation in the light of the specific situation of the policyholder, his or her level of education and the specific purpose of the cancellation.

91.

The fourth question referred in Case C‑479/18 should therefore be answered as follows: Article 15(1) of Directive 90/619/EEC, as amended by Directive 92/96/EEC, or Article 35(1) of Directive 2002/83/EC, or Article 186(1) of Directive 2009/138/EC must be interpreted as precluding a national rule under which only the surrender value (the current value for the insurance calculated in accordance with the accepted rules of actuarial calculations) must always be paid out to the policyholder if he or she exercises his or her right of cancellation.

92.

By this question, the referring court wishes to know, in the event that a life assurance contract is to be reversed in accordance with the principles of the law on unjust enrichment following a late cancellation, whether EU law precludes interest claims being reduced to the last 3 years prior to the bringing of the action on account of a general limitation period.

93.

The background to this question is a provision of the General Civil Code (Paragraph 1480) under which ‘claims for backdated annual benefits, in particular for interest, pensions, food contributions, benefits for ascendants and for amortisation of capital of agreed annuities, shall lapse after 3 years; the right itself shall be time-barred for non-use after 30 years’.

94.

However, claims cannot be time-barred before they have arisen or before the person entitled has been informed of them. The limitation period can therefore begin to run only from the exercise of the right of cancellation.

95.

In particular, the right of cancellation guaranteed by EU law cannot be effectively exercised if the resulting claims disappear before the policyholder has actually been informed of his or her right.

96.

The fifth question referred in Case C‑479/18 must therefore be answered as follows: Article 15(1) of Directive 90/619/EEC, as amended by Directive 92/96/EEC, or Article 35(1) of Directive 2002/83/EC, or Article 186(1) of Directive 2009/138/EC must be interpreted as precluding a national rule under which, in the event of exercise of the right of cancellation on grounds of no information or incorrect information being supplied, the claim to a flat rate of interest for the reimbursed premiums due to limitation may be restricted to the proportion covering the period of the last 3 years prior to the bringing of the action.

97.

In the light of these considerations, I propose that the Court answer the questions asked by the Landesgericht Salzburg (Regional Court, Salzburg, Austria) (Cases C‑355/18, C‑356/18 and C‑357/18) and the questions asked by the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna, Austria) (Case C‑479/18) as follows: