JUDGMENT OF THE COURT

of 10 March 2020

in Case E-3/19

Gable Insurance AG in Konkurs

(Directive 2009/138/EC – insolvency – winding-up proceedings – insurance claim – judicial composition – differential treatment of insurance claims)

(2020/C 204/17)

In Case E-3/19, Gable Insurance AG in Konkurs – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Princely Court of Liechtenstein (Fürstliches Landgericht) concerning the interpretation of 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), as adapted to the Agreement on the European Economic Area, the Court, composed of Páll Hreinsson, President, Per Christiansen (Judge-Rapporteur), and Bernd Hammermann, Judges, gave judgment on 10 March 2020, the operative part of which is as follows:

An insurance claim must be based on an insured event occurring before the cancellation of an insurance contract for it to be considered an insurance claim within the meaning of Article 268(1)(g) of Directive 2009/138/EC. However, the scope of an insurance claim cannot be limited to claims that have arisen, been lodged or admitted before the opening of the winding-up procedure if the claim cannot yet be fully determined. In accordance with Article 274(2)(g) of Directive 2009/138/EC, it is for national law to set the specific rules and conditions concerning the lodging, verification and admission of claims, including temporal limits for the lodging of claims and the final determination of the amount of insurance claims in cases where elements of the debt are not yet known, provided that insurance claims are given absolute precedence over other claims in accordance with Article 275(1)(a) of Directive 2009/138/EC.

A claim for owed premium arising from the cancellation of an insurance contract after the opening of the winding-up proceedings does not constitute an insurance claim within the meaning of Article 268(1)(g) of Directive 2009/138/EC.

Article 268(1)(d) and Article 274(2)(i) of Directive 2009/138/EC neither oblige EEA States to provide, nor preclude them from providing, for composition in the termination of winding-up proceedings. It is for national law to determine the requirements to close winding-up proceedings, subject to respecting the principle of equal treatment of insurance creditors.

Article 275(1)(a) of Directive 2009/138/EC does not preclude national rules on the lodging, verification and admissibility of insurance claims that result in different categorisation and ranking of insurance claims, provided those rules ensure that insurance claims take precedence over other claims and that insurance creditors are treated equally as regards the lodging, verification and admission of claims.