1.

The disputes in the main proceedings have been brought by consumers in Poland who acceded to group life assurance contracts. The consumers claim not to have been communicated the required level of detail concerning the characteristics and risks of those assurance products. As such, they seek recovery of all monies invested thereunder. Against that background, the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for Warszawa-Wola, Warsaw, Poland) raises a number of questions relating to the scope of the information disclosure obligation laid down in Article 36(1) of Directive 2002/83/EC ( 2 ) (‘the Life Assurance Directive’) and the effects of a failure to make such a (full) disclosure.

2.

The Life Assurance Directive seeks to eliminate divergences that exist between national supervisory legislation by coordinating certain aspects concerning the taking-up and pursuit of the business of life assurance. ( 3 ) In this regard, recital 52 of that directive states the following:

‘In an internal market for assurance the consumer will have a wider and more varied choice of contracts. If he/she is to profit fully from this diversity and from increased competition, he/she must be provided with whatever information is necessary to enable him/her to choose the contract best suited to his/her needs. This information requirement is all the more important as the duration of commitments can be very long. The minimum provisions must therefore be coordinated in order for the consumer to receive clear and accurate information on the essential characteristics of the products proposed to him/her as well as the particulars of the bodies to which any complaints of policy holders, assured persons or beneficiaries of contracts may be addressed.’

3.

Pursuant to Article 36 of the Life Assurance Directive, entitled ‘Information of policy holders’:

‘1.   Before the assurance contract is concluded, at least the information listed in Annex III(A) shall be communicated to the policy holder.

…

3.   The Member State of the commitment may require assurance undertakings to furnish information in addition to that listed in Annex III only if it is necessary for a proper understanding by the policy holder of the essential elements of the commitment.

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

4.

In relevant part, Annex III to that directive, entitled ‘Information for policy holders’, provides as follows:

‘The following information, which is to be communicated to the policy holder before the contract is concluded (A) or during the term of the contract (B), must be provided in a clear and accurate manner, in writing, in an official language of the Member State of the commitment.

…

A. Before concluding the contract

5.

Directive 2005/29/EC (‘the Unfair Commercial Practices Directive’) ( 4 ) applies ‘to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product’. ( 5 ) Article 5 of that directive states the following:

‘1.   Unfair commercial practices shall be prohibited.

…

4.   In particular, commercial practices shall be unfair which:

…’

6.

Article 7 of the Unfair Commercial Practices Directive, entitled ‘Misleading omissions’, states:

‘1.   A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

…

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.’

7.

At the time of the facts in the main proceedings, the business of assurance in Poland was governed by the Ustawa o działalności ubezpieczeniowej (‘the Law on Assurance Activities’). ( 6 ) That law sought to transpose the Life Assurance Directive.

8.

In relevant part, Article 13 of the Law on Assurance Activities provided as follows:

‘…

4.   As regards life assurance linked to an investment fund, referred to in Section I, Group 3 of the annex to the present law, the assurance company is required to specify or mention the following in the insurance contract:

…’

9.

O (‘the defendant in C‑143/20’) is a legal person based in Poland. It entered into a unit-linked group life assurance contract with a life assurance company. Under that contract, the life assurance company acted as assurer and the defendant in C‑143/20 as policyholder.

10.

The particular contract entered into between the defendant and the assurance company was unit-linked to an investment fund. The fund rules specified that the assurance premiums would be invested up to 100% in certificates issued by B1. The payouts under those certificates were based on index B2.

11.

On 8 October 2010, A, a physical person (‘the applicant in C‑143/20’), acceded to the group life assurance contract concluded between the defendant in C‑143/20 and an assurance undertaking. Under the provisions of the declaration to accede to that contract, the applicant in C‑143/20 would pay an initial premium and then a regular monthly assurance premium. The assurance period thereunder was set at 15 years.

12.

The assurance contract did not specify the rules governing the valuation of the units of the investment fund, the net assets of the entire fund, or the certificates in which the premiums paid by the applicant in C‑143/20 were invested. It also did not state the method for calculating the value of the index on which the payouts of those certificates were based.

13.

However, the fund regulations did explain that the maturity guarantee paid by the assurance company at the end of the 15-year contractual period would not be lower than the amount of the totality of the premiums invested, and could increase in the case of a positive development of index B2. In the event of termination of the assurance contract before the end of its period of validity, the assurance company undertook to reimburse the insured an amount equal to the value of his or her shares in the investment fund at that time.

14.

After a period of seven years, and in view of significant losses in the value of the funds invested by the applicant in C‑143/20, the latter terminated the contract. The assurance company paid him, as a surrender value, an amount corresponding to the value of his shares in the investment fund on the date of termination of the assurance contract.

15.

The applicant in C‑143/20 brought an action for recovery before the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for Warszawa-Wola, Warsaw, Poland). He argues that he was misled as to the nature of the investment in which the premiums were to be placed.

16.

The referring court notes that, depending on the linguistic version, the information disclosure obligation contained in Article 36(1) of the Life Assurance Directive, read in conjunction with points (a)11 and (a)12 of Annex III(A) thereto, and Article 185(3) of Directive 2009/138/EC ( 7 ) (‘the Solvency II Directive’), requires that full information on the financial instruments and investment strategies offered be disclosed to the applicant in C‑143/20. The failure to provide such information would then bring about an unfair commercial practice within the meaning of Articles 5 and 7 of the Unfair Commercial Practices Directive.

17.

Against that factual and legal background, the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for Warszawa-Wola, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

18.

A. Towarzystwo Ubezpieczeń Życie S.A. (‘the defendant in C‑213/20’) is a legal person based in Poland that sells life assurance products. In July 2011, it entered into a unit-linked group life assurance contract with A. S.A., a company active in the banking sector, pursuant to which the defendant in C‑213/20 would act as assurer and A. S.A. as policyholder (‘the policyholder in C‑213/20’).

19.

The particular contract entered into between the defendant and the policyholder in C‑213/20 was unit-linked to a fund. The fund rules specified that the assurance premiums would be invested up to 100% in index-linked bonds of a third company.

20.

On 28 and 30 November 2011, G.W. and E.S., both physical persons (‘the applicants in C‑213/20’), respectively filed their individual declarations to accede to the group life assurance contract. Under the provisions of those declarations, the applicants in C‑213/20 would pay an initial premium and then a regular monthly assurance premium. The assurance period thereunder was set at 15 years.

21.

The offer of accession to the group life assurance contract at issue was presented at a single meeting at the premises of the policyholder. The assurance product was presented to the applicants in C‑213/20 as a capital investment in the form of systematic savings. The oral presentation of the assurance product focused on the presentation of graphs relating to the potential returns from investing in an assurance investment fund. At the same meeting, the applicants in C‑213/20 were also provided with documents, namely the declaration of accession and the standard contractual clauses.

22.

However, no information regarding the conditions of purchase of the index-linked bonds in the third company was provided to the applicants in C‑213/20. Therefore, the applicants in C‑213/20 had no information surrounding the risk factors associated with the investment into such structured products. The only risk information arising from the fund rules included, in particular, the risks associated with the depreciation of the index in which the assurance premiums were invested as a result of developments on the financial markets, and the possible loss of part of the premiums invested in the event of termination of the assurance contract before the end of the assurance period.

23.

Together with the declaration of accession to the group life assurance contract, the applicants in C‑213/20 also signed a written document containing information explaining that, during the assurance period, the value of the units in the fund could fluctuate significantly depending on the valuation of the financial instruments in which the fund invested. However, they were assured that, at the end of the 15-year contractual period, they would be paid out the totality of the value of the units of the investment fund.

24.

In line with the terms and conditions of the group life assurance contract, the premiums paid by the applicants in C‑213/20 were invested into index-linked bonds of the third company. During the assurance period, the value of the units in the investment fund gradually decreased. After a period of eight years, the applicant G.W. terminated the contract with effect from 23 January 2019.

25.

The assurance company paid G.W. a surrender value corresponding to the value of her units in the account minus certain liquidation costs. At the time of the request for a preliminary ruling, the applicant E.S. was continuing to pay the premiums and had not yet terminated the legal relationship arising from the contract to which she had entered into.

26.

Nevertheless, the applicants in C‑213/20 brought an action against the defendant before the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for Warszawa-Wola, Warsaw). In support of their claims, they argue that the defendant failed to provide them with full information on the characteristics of the index-linked bonds of the third company and on the risks associated with them. Therefore, there was no effective declaration of intent to accede to the group life assurance contract.

27.

The referring court notes that, while the applicants in C‑213/20 are not formally party to the assurance contract between the defendant and the policyholder, Article 36(1) of the Life Assurance Directive contains an information disclosure obligation of ‘at least the information listed in Annex III(A)’ to the directive, ‘before’ an assurance contract is concluded. Given that, in those circumstances, the consumer assumes some of the policyholder’s obligations, in particular the obligation to pay the premiums, the referring court wonders whether the assured person must be provided with whatever information the policyholder in C‑213/20 was provided with when entering into the contract with the defendant in C‑213/20. If that is the case, then an uncertainty is brought about as regards the timing of such disclosure and the way in which the scope of points (a)11 and (a)12 of Annex III(A) to the Life Assurance Directive should be interpreted.

28.

Therefore, the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for Warszawa-Wola, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

29.

By decision of 24 March 2021, the two cases C‑143/20 and C‑213/20 have been joined for the purposes of the oral procedure and judgment.

30.

Written observations have been submitted by the applicants in C‑213/20, the defendant in C‑213/20, the Greek, Italian and Polish Governments, as well as the European Commission. The applicants in C‑213/20, the defendant in C‑213/20, the Italian and Polish Governments, as well as the Commission, also replied to written questions put to them on 23 March 2021.

31.

This Opinion is structured as follows. I shall start by setting out and explaining the nature of the assurance products at issue and then summarise the common factual circumstances that will prove relevant for this Opinion (A). Next, I shall turn to the order of the questions raised by the referring court (B) before dealing with their substance: who holds the obligation to disclose the information required by Article 36(1) of the Life Assurance Directive (C); what information must be disclosed thereunder (D); when must such disclosure take place (E); and what are the consequences of a failure to do so (F).

32.

The insurance sector is a particularly sensitive area when it comes to the need for protecting the consumer. ( 8 ) Insurance contracts are legally complex financial products, capable of differing considerably depending on the insurer offering those products and likely to involve significant and possibly very long-term financial commitments. Within such settings, the consumer is naturally at a disadvantage vis-à-vis the insurer. ( 9 ) In 2013, the European Commission produced a report on the Unfair Commercial Practices Directive, emphasising the troubling fact that, for financial services and immovable property, the most commonly reported unfair practices in the Member States related to a lack of essential information at the advertising stage and a misleading description of the products at issue. ( 10 )

33.

It is for those reasons that the case-law of the Court spans a tight umbrella of consumer protection. ( 11 ) Although not absolute, ( 12 ) the increased level of protection that the Court thus recognises seeks to re-balance the negotiating position of the weaker party who enters into a contractual relationship with an insurance undertaking (that is to say, the policyholder or consumer). ( 13 )

34.

Those considerations are no different for the assurance sector. Roughly speaking, while insurance covers hazards or risks that may occur (and so only has a value in the event of a claim), assurance refers to financial coverage which provides for remuneration for an event that is certain to happen. The latter thus promises a payout either in the form of a guaranteed minimum or its investment valuation when it is redeemed.

35.

A group life assurance contract is a single contract for life assurance coverage between an assurance company and a policyholder. Individual consumers may opt to accede to the group contract’s coverage by filing individual declarations indicating their willingness to do so. In return for the payment of regular premiums, those consumers benefit from the protection that the underlying scheme of the respective contract offers.

36.

However, many life assurance products or contracts are designed and sold purely as personal financial investment instruments or instruments that offer many similar elements. Often, they are marketed as a method of saving for retirement. Such is the case with unit-linked assurance policies. Under those types of contracts, the premiums paid are invested in ‘units’ of an investment fund. The value of those units then depends on the asset at the heart of the fund. If the value of this underlying asset fluctuates, then the value of the units in which the policyholder’s premiums have been invested will too. In order to cater to the demand for security in the light of such possible fluctuations in value, unit-linked assurance plans are likely to contain ‘maturity guarantees’. In essence, those guarantees set a minimum level to the value of the contract at maturity, that is to say, at the moment when the contract expires, regardless of the market value of the underlying units.

37.

The type of unit-linked group life assurance schemes at issue in the main proceedings tend to be popular assurance products. They are marketed to average consumers with the promise of entering into a safe, long-term savings commitment that is likely to result in an increased return at the end of the policy or the fruition of the policy event. ( 14 ) Indeed, as the referring court explains, the cases at issue are merely two examples of many pending disputes of a similar nature before the same court.

38.

Finally, before engaging with the (complex) substance of the disputes in the main proceedings, it may be useful briefly to recall the relevant and common factual circumstances against which the disputes in the main proceedings arise.

39.

At a date uncommunicated by the referring court, two independent and unconnected group life assurance contracts were concluded between an assurance company and a policyholder. Both of them are legal persons. In 2010 and 2011, the applicants in the main proceedings, who are physical persons in Poland and apparently also consumers for the purposes of the relevant EU legislation, voluntarily acceded to those contracts’ coverage for 15 years. In return, they agreed to the obligation to pay a fixed premium every month for the entirety of that period.

40.

Since the respective life assurance coverage was unit-linked to an investment fund, the assurance company would invest the premiums paid by the applicants in ‘units’ (in other words, shares) of that fund. Those investments carried the risk that the value of those units would fluctuate significantly during the term of the assurance period.

41.

However, at the end of the 15-year maturity period, the applicants were assured a maturity guarantee of at least the total amount of premiums invested (C‑143/20) or the total value of the units in the investment fund (C‑213/20). There was also the possibility of a higher return payment if the respective funds to which the respective group life assurance contract was linked had increased in value over the relevant assurance period.

42.

In the event of termination of the assurance contract before the maturity date, the applicants in the main proceedings would only be reimbursed an amount equal to the value of the respective units in the investment fund, valued at the time of the withdrawal, and subject to a liquidation fee. In the main proceedings, that meant that the value of the totality of the funds reimbursedwas significantly lower than what the respective applicant had invested.

43.

The applicants in the main proceedings claim not to have been sufficiently informed of the nature and characteristics of the financial instruments underlying the group life assurance contracts to which they acceded. As a result, this meant that they did not have a clear enough picture of the risks involved. Accordingly, they have respectively filed suit against a policyholder (C‑143/20) and against an assurance company (C‑213/20) with a view to invalidating the declarations of accession to the group life assurance contracts at issue and claiming repayment of all monies invested in those policies.

44.

Before venturing into the substance of the questions raised by the referring court, it is necessary to provide preliminary clarifications on two aspects of the present cases: first, the EU law applicable, and, building thereon, second, the formulation and simplification of the questions referred.

45.

First, in a number of its questions, the referring court requests an interpretation of certain provisions of the Solvency II Directive. However, as the Polish Government and the Commission correctly point out, the application of that directive was delayed until 1 January 2016. ( 15 ) Accordingly, given that the applicants in the main proceedings already completed their declarations to accede to the group life assurance contracts at issue on 8 October 2010 (C‑143/20) and 28 and 30 November 2011 (C‑213/20) respectively, the Solvency II Directive is not applicable ratione temporis to the present cases.

46.

Similarly, in Question 2 in Case C‑143/20, the referring court seeks a comparison of the scope of Article 36(1) of the Life Assurance Directive with Article 19(3) of Directive 2004/39/EC and Directive 2014/65/EU. However, Directives 2004/39 and 2014/65 expressly exclude assurance undertakings from their scope of application. ( 16 ) In addition, Directive 2014/65 was not applicable ratione temporis to the facts in the main proceedings in the first place. As such, any assessment thereunder would be entirely theoretical. ( 17 )

47.

Accordingly, I suggest reformulating Questions 1 and 2 in C‑143/20 and Questions 1, 2 and 3 in C‑213/20 as solely seeking an interpretation of Article 36(1) of the Life Assurance Directive. Furthermore, in view of the fact that Question 3 in C‑143/20 requests an interpretation of Article 185(4) of the Solvency II Directive only, that question becomes moot and so need not be answered by the Court.

48.

Second, the questions, reformulated and simplified, approach the disclosure of information prior to the accession to an assurance contract under the Life Assurance Directive from four different angles: who carries the burden to inform consumers of the characteristics and risks of unit-linked group life assurance products; what information must be disclosed; when must such disclosure take place; and what are the consequences of a failure to make such a disclosure.

49.

Question 1 in C‑143/20 and Question 1 in C‑213/20 ask, in essence, who exactly bears the obligation to inform the policyholder pursuant to Article 36(1) of the Life Assurance Directive. In the particular factual circumstances in the main proceedings, that determination is complicated by the fact that the effective ‘seller’ of the assurance product is not an assurance undertaking but another (legal) person (C).

50.

Question 2 in C‑143/20 and Questions 2 and 3 in C‑213/20 seek, in essence, an interpretation of the ‘what’. As reformulated, those questions enquire as to what type of information and what level of detail must be communicated to the applicants in the main proceedings by virtue of Article 36(1) of the Life Assurance Directive, read in conjunction with points (a)11 and (a)12 of Annex III(A) (D).

51.

The ‘how’ is addressed by Question 4 in C‑213/20. It asks whether Article 36(1) of the Life Assurance Directive implies the requirement to put in place a separate pre-contractual procedure during which the information contained in Annex III(A) must be disclosed to the consumer. If that is the case, the referring court then seeks guidance on whether that article would preclude a provision of national law, such as Article 13(4) of the Law on Assurance Activities, which does not specify the point in time at which the information disclosure obligation should take place (E).

52.

Questions 4 to 6 in C‑143/20 and Question 5 in C‑213/20 enquire about the consequences of a failure to disclose the information necessary to inform a consumer of the nature and characteristics of an assurance product. They do so from the angle of the Unfair Commercial Practices Directive and the Life Assurance Directive respectively (F).

53.

I shall address those questions in turn.

54.

By Question 1 in C‑213/20 and Question 1 in C‑143/20, the referring court essentially enquires whether an assured person that is not a policyholder, and who merely acceded as a consumer to a unit-linked group life assurance contract, ought to receive the information covered by the information disclosure obligation laid down in Article 36(1) of the Life Assurance Directive.

55.

The defendant in C‑213/20 considers that the response to those questions should be given in the negative. It argues that Article 36(1) of the Life Assurance Directive only puts in place a disclosure obligation between the assurance undertaking and the policyholder. Where consumers accede to a group life assurance contract between an assurance undertaking and a policyholder, without, however, becoming a policyholder in their own right, Article 36(1) of that directive is not applicable.

56.

The applicants in C‑213/20, the Italian and Polish Governments, and the Commission, in essence submit that it flows from a systematic and teleological interpretation of Article 36(1) of the Life Assurance Directive that the information disclosure obligation contained therein ought to be interpreted as extending to consumers who accede to a group life assurance contract if those consumers assume the main obligations of the policyholder (such as paying the premium and taking on the investment risk underlying the contract).

57.

I agree with the latter position.

58.

Pursuant to recitals 2, 3 and 5, the Life Assurance Directive aims at promoting an internal market in life assurance, all the while ensuring adequate protection for policyholders and beneficiaries in the European Union.

59.

As regards that latter goal, the directive aims at protecting consumers through choice based on information. ( 18 ) That approach is reflected in recital 52 of the preamble, which explains that the Life Assurance Directive inter alia seeks to coordinate the minimum provisions in order for the consumer to receive clear and accurate information on the essential characteristics of assurance products proposed to him or her. As is pointed out in the same recital, if that consumer is to profit fully from the greater choice and diversity in the single market for assurance, and from increased competition, he or she must be provided with whatever information is necessary to enable him or her to choose the contract which best meets his or her requirements. ( 19 )

60.

Such adequate protection is intended to be guaranteed, inter alia, through the information disclosure obligation contained in Article 36 of the Life Assurance Directive. In paragraph 1 of that article, that provision lays down that at least the information listed in section A of Annex III should be communicated to the ‘policy holder’ before the conclusion of an ‘assurance contract’. As per paragraph 2, said ‘policy holder’ is given the right to be kept abreast of any changes to the information listed in Annex III(B) during the period of the assurance contract. Where necessary for a proper understanding by the ‘policy holder’ of the essential elements of the commitment, paragraph 3 then lays down that Member States may impose on ‘assurance undertakings’ greater information disclosure obligations than those contained in paragraphs 1 and 2. In line with paragraph 4 of Article 36 of that directive, national law governs the detailed rules for the implementation of those obligations.

61.

Paragraphs 1 and 2 of Article 36 of the Life Assurance Directive are drafted in the passive voice. They do not specify the entity on which the information disclosure obligations therein fall. They thus stand in contrast, for instance, with paragraph 3 of that provision, which specifically names ‘assurance undertakings’ as potentially subject to information disclosure obligations beyond those harmonised in the directive.

62.

Why did the EU legislature not specify who should carry the information disclosure obligation in paragraphs 1 (and 2) of Article 36 of the Life Assurance Directive? The submissions of the parties do not provide any indication as to the reasons behind that drafting style. Nor can such information be derived from the preparatory documents to the Life Assurance Directive.

63.

The answer to the issue of who bears the disclosure obligation is straightforward and intuitive in cases of simple contract scenarios between two counterparties, where there is only one assurer and one policyholder. The same answer becomes less obvious in cases of more complex arrangements, within which there are more than just two parties. What if the (initial, nominal) policyholder starts inviting others to join the policy, or is reselling that product to third parties, with those third parties effectively assuming the legal and/or economic risks arising from the assurance contract?

64.

The exact legal classification of such complex arrangements is likely to be heavily dependent on the applicable categories of national (civil) law and the exact type of legal arrangement made thereunder. However, regardless of the taxonomy which will eventually be established there, when reading Article 36(1) of the Life Assurance Directive in the light of recitals 2, 3 and 52 thereof, one cannot simply arrive at the position whereby the consumer, who was always supposed to be protected by the information disclosure obligation contained in Article 36, would fall out of that picture completely. Choosing a certain business or selling model for assurance products, and thereby inserting into the picture a greater number of actors than previously foreseen by the legislation, cannot have as its consequence an escape from the obligations of that directive.

65.

I admit that accommodating the more complex scenarios within the wording of Article 36(1) of the Life Assurance Directive requires a minor expansion of that provision. ( 20 ) However, in view of the logic and purpose of that provision, as well as that overall area of law, it is quite a natural one. Moreover, it is compatible with the passive language used in Article 36(1) and (2) of the directive, which states who shall obtain the information, but not who shall provide it.

66.

Indeed, viewed within that context, the information disclosure obligations contained in paragraphs 1 and 2 of Article 36 of the Life Assurance Directive arise for whichever party concludes an assurance contract with a ‘policy holder’. Those paragraphs impose a ‘dynamic’ information disclosure obligation that ‘travels’ with the change of counterparty under an assurance contract. By contrast, the possible additional obligation in paragraph 3 of the same article only ever arises for ‘assurance undertakings’, which are a defined and closed group in accordance with the requirements of Article 4 of the Life Assurance Directive, if Member States decide to go beyond the harmonised minimum standards contained in the directive. Where that additional obligation arises, it consequently only applies to one type of counterparty (that is, ‘assurance undertakings’). That obligation therefore remains ‘static’.

67.

In true algebraic fashion, in order to identify upon whom the dynamic information disclosure obligation of Article 36(1) of the Life Assurance Directive falls, two variables must be assessed. The first is the existence of an ‘assurance contract’. The second is the presence of a ‘policy holder’. I shall assess whether those two variables are satisfied in the circumstances in the main proceedings ((1) and (2)), before proposing an answer to Question 1 in C‑143/20 and Question 1 in C‑213/20 (3).

68.

What is an ‘assurance contract’ for the purposes of the Life Assurance Directive? The text of the directive is silent on that concept. Nor does the directive refer to the law of the Member States on that point. Indeed, recital 44 of the directive expressly explains that it does not seek to harmonise the contract laws of the Member States. Instead, it leaves decisions on the content of those laws to the Member States where not otherwise provided. ( 21 ) The scope of the concept of ‘assurance contract’ must hence be sought having regard to the context of the Life Assurance Directive and must be given an autonomous and uniform interpretation specific to EU law. ( 22 )

69.

The European Free Trade Association (EFTA) Court has already had the opportunity to explain that one of the basic tenets of an ‘assurance contract’, within the meaning of the Life Assurance Directive, is the existence of a legal transaction that entails ‘a new and independent assumption of risk in return for payment’. ( 23 ) That is also the line taken by the Court, in various contexts, when considering the essential characteristics of an insurance transaction. There too, the key element is that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded. ( 24 ) Such a transaction implies the existence of a contractual relationship between (ordinarily) the provider of the insurance service and the person whose risks are covered by the insurance. ( 25 )

70.

The common element to both definitions is the emphasis on the economic logic (that is, the assumption of risk), rather than on formal contractual arrangements. Indeed, in the particular case of life assurance products, the ‘risk’ carried by the (institutional) entity – typically the assurance undertaking – is that the payout policy is triggered during the agreed term period and that the policyholder is to be compensated for any losses upon the maturity of the contract. The obligation agreed to by the policyholder typically corresponds to the payment of a premium for the entirety of the term of the policy.

71.

It is clear that Article 36 of the Life Assurance Directive seeks to assist policyholders in making a calculated choice as to the acceptance of their obligations under a newly assumed contractual relationship for assurance products. Indeed, recital 52 of that directive explains that at the heart of the information disclosure obligation lies the intention of empowering policyholders and consumers when entering into a legal transaction that results in the conclusion of a life assurance contract. ( 26 ) This implies that the directive intends to equip those parties with all the necessary tools to enable them to make their own assessment of the risks that they are likely to take on. ( 27 )

72.

Thus, where a consumer assumes a new and independent risk (or obligation) through his or her entry into that type of legal relationship with a third party, the pre- and post-contractual disclosure obligations arising from Article 36 of the Life Assurance Directive seek to enable that consumer to make an informed choice as to the contract best suited to him or her prior to and during the existence of that contract.

73.

The question of whether such an obligation was entered into then becomes an assessment of the factual circumstances in a particular case, which the referring court is best placed to make. However, from the submissions presented to this Court, it appears common ground that the applicants in the main proceedings filed individual ‘declarations’ to accede to the group life assurance contracts at issue. In doing so, the applicants in the main proceedings accepted certain rights and obligations. The latter are reported to have included the economic burden of regularly paying the premiums that the assurance company would later invest in units of the linked investment funds. The former would inter alia be reflected in a maturity guarantee that, at the end of a 15-year period, the applicants would receive a payout potentially higher than or at least equal to their overall investment in the policy. Given the presence of those basic elements, it would appear that, from the point of view of the Life Assurance Directive, the declarations to accede to the group life assurance contract at issue resulted in the conclusion of ‘assurance contracts’ within the meaning of that directive.

74.

That finding is not affected by the referring court’s explanation that, under Polish law, when a consumer accedes to a group life assurance contract, he or she does not actually become a party to that contract but merely acquires the status of ‘assured person’.

75.

It is not for this Court to interpret or comment on national law. However, I remain puzzled as to how one could obtain the status of an assured person without there being any contract whatsoever. Logically, I would assume that an assured person in such a situation must be under some kind of (contractual) legal relationship. A declaration to accede, which was apparently signed by the applicants in the main proceedings, could be considered as amounting to joining the original contract between the assurer and the policyholder, with the applicants becoming (affiliated) policyholders under the original contract. Alternatively, the same declaration could be construed as a conclusion of a second contract between the policyholder and the assured person. Therefore, as a matter of national law, there would be two successive contracts: the original one between the assurer and the original policyholder, and a second one, between the policyholder and the consumer.

76.

However, it is difficult for me to assume that neither of these two scenarios was actually present under national law, with the assured persons effectively floating in a sort of (contract-free) legal vacuum. ( 28 )

77.

In view of the information provided by the referring court, the second option appears more plausible. Under that scenario, there would in fact be two subsequent contracts under national law. On the one hand, there would be the ‘upstream’ legal relationship between the assurance undertaking and the ‘original’ policyholder, which forms the basis of the group life assurance contract. On the other hand, there is the new and independent ‘downstream’ legal relationship between the policyholder and the consumer.

78.

It would thus appear that the applicants in the main proceedings entered into an ‘assurance contract’, within the meaning of the Life Assurance Directive, irrespective of the unclear and outstanding legal qualification of that reality under Polish law, and that those legal relations arise separately from the ‘original’ (and ‘upstream’) assurance contract between the assurance undertaking and the policyholder.

79.

With regard to the concept of ‘policy holder’, the Life Assurance Directive also does not contain a definition or a reference to national law. It nonetheless transpires from the structure of the Life Assurance Directive that, while the concept of ‘policy holder’ is generally understood to be the person who acts as the offeree in the legal relationship that qualifies an ‘assurance contract’, ( 29 ) those concepts need not necessarily overlap. ( 30 )

80.

In relation to Article 36 of the Life Assurance Directive, the Court has recently indicated that the reference to ‘policy holder’ therein must be interpreted widely to include also the concept of ‘consumer’, given the objective of consumer protection laid down in recital 52 of the directive. ( 31 )

81.

In my view, the same logic should also apply in the present cases.

82.

As I have explained in points 77 to 78 of this Opinion, it would appear that in the cases in the main proceedings, the applicants entered into individual ‘assurance contracts’, within the meaning of Article 36(1) of the Life Assurance Directive, with different policyholders. Under those contracts, which arise ‘downstream’ from the relationship between the assurance undertaking and the policyholders in the main proceedings, those policyholders acted as offerors in relation to the accession to the group life assurance contract. The likely fact that those policyholders did not do much more than act as intermediaries to promote the group life assurance coverage to third parties (that is, the applicants in the main proceedings) does not affect their status as offerors under the respective ‘downstream’ assurance contracts. Indeed, as the referring court explains, a consumer who accedes to a group life assurance contract can expect to enjoy the same rights and assume the same obligations as those arising from an individual life assurance contract concluded directly with an assurance undertaking.

83.

Consequently, and subject to verification by the referring court, although merely being consumers of a group life assurance policy, the applicants in the main proceedings effectively assumed the same rights and obligations as ‘policy holders’ within the meaning of Article 36(1) of the Life Assurance Directive when signing the ‘declarations’ at issue with the policyholders in the main proceedings.

84.

With the two variables of Article 36(1) of the Life Assurance Directive now clarified, it becomes possible to determine whether that provision applies in the circumstances of the present cases.

85.

As I have explained in point 66 of this Opinion, the nature of the pre-contractual information disclosure obligation contained in paragraph 1 of Article 36 of the Life Assurance Directive puts in place a ‘travelling’ source of information disclosure obligation, which orientates itself around the need to protect the consumer at issue.

86.

As the Polish Government correctly observes, when the policyholders in the main proceedings proposed the creation of separate legal relationships with the applicants at issue, whereby the latter would assume new and independent risks in return for the right to be covered by the group life assurance coverage, those policyholders became offerors under the assurance contracts at issue. They thereby activated the ‘dynamic’ information disclosure obligation in Article 36(1) of the Life Assurance Directive. Those policyholders thus had to communicate to the applicants in the main proceedings at least the information listed in Annex III(A) to that directive to enable them to assess the effects and risks of the applicable group life assurance coverage and to choose that coverage in full knowledge of all the relevant facts.

87.

In the light of the foregoing, I suggest that the Court answer Question 1 in C‑143/20 and Question 1 in C‑213/20 as follows:

Article 36(1) of the Life Assurance Directive must be interpreted as meaning that the pre-contractual information disclosure obligation therein requires the counterparty to a contract with a consumer, where the latter accedes to a group life assurance contract without becoming a policyholder under the underlying, original assurance contract, to communicate to that consumer at least the information listed in Annex III(A) to that directive.

88.

By Question 2 in Case C‑143/20 and Questions 2 and 3 in Case C‑213/20, the referring court essentially seeks guidance on what type of information and what level of detail must be communicated to the applicants in the main proceedings by virtue of Article 36(1) of the Life Assurance Directive, read in conjunction with points (a)11 and (a)12 of Annex III(A) thereto. The referring court adds that a comparative linguistic assessment of the German, French, English and Polish versions of point (a)12 of Annex III(A) to the directive reveals a lower threshold under the Polish version of the directive (‘wskazanie’ or ‘indications’), whereas the German, French and English versions all require information on the nature, type specification and characteristics of the underlying assets.

89.

In Case C‑143/20, the applicant appears to argue in the main proceedings that he should have been provided with detailed information on the characteristics of the investment and the rules governing the allocation of the assurance premium to the various units of the index. A mere disclosure of the fact that the investment concerned ‘certificates’, as the defendant in that case appears to have done, would be insufficient. As for Case C‑213/20, the applicants claim that they should have received ‘complete’ information on the characteristics of the structured bonds purchased for the unit-linked funds, including ‘detailed’ and ‘exhaustive’ information on the scope, extent and type of ‘all risks’ associated with those investments.

90.

For its part, the defendant in Case C‑213/20 argues that point (a)12 of Annex III(A) to the Life Assurance Directive does not require the communication of a ‘detailed’ description of the level, extent and nature of the investment risk inherent in the assets of the investment fund. That type of information would not form part of the ‘nature’ of the underlying assets for unit-linked products within the meaning thereof.

91.

The Polish Government and the Commission broadly follow that point of view. In essence, those parties submit that only the essential characteristics of the representative asset underlying the investment fund must be disclosed in a clear and precise fashion. That entails disclosure of the economic and legal nature of that asset, as well as the risk associated with it.

92.

I agree with the latter position.

93.

It follows from points (a)11 and (a)12 of Annex III(A) to the Life Assurance Directive that the information to be communicated to the consumer before the conclusion of a unit-linked group life assurance contract must include two elements. The first element, listed in point (a)11 thereof, mandates setting out the ‘definition of the units’ to which the benefits under the assurance policy are linked. The second element, listed in point (a)12 of the same annex, requires ‘an indication of the nature of the assets’ underlying the unit-linked policy.

94.

Without further explanation, a ‘definition of the units’ in an investment fund can be extremely detailed, but it need not be. Similarly, the ‘nature of the assets’ underlying the policy could, in itself, be explained by reference to its general financial term (such as a ‘derivative’), but it could also require a rather detailed explanation of the type and functioning of that asset.

95.

That is where recital 52 of the Life Assurance Directive gains in importance. It features a number of yardsticks which should guide the interpretation of Article 36(1) of and Annex III(A) to the directive. ( 32 ) To that end, recital 52 provides, in relevant part, that the directive should coordinate amongst the Member States the scope of that minimum amount of information so that the consumer is communicated ‘whatever information … necessary to enable him/her to choose the contract best suited to his/her needs’. The information communicated must be ‘clear and accurate … on the essential characteristics of the products proposed to him/her’. ( 33 )

96.

In my view, all those elements translate into three considerations. First, the Life Assurance Directive did not seek completely to harmonise the scope of the information that needs to be available to a consumer before the conclusion of an assurance contract. Therefore, some scope is left for national law to go above the requirements contained in the Life Assurance Directive. Second, the detail of information that requires disclosure depends on an assessment of the needs expressed by the consumer. However, those demands must be balanced through the objective prism of ‘necessity’. Third, the information disclosed at the end of this balancing process must, at a minimum, cover the ‘essential characteristics’ of the assurance product. For the purposes of the pre-disclosure obligation contained in Article 36(1) of that directive, those characteristics are set out in Annex III(A), and in particular in points (a)11 and (a)12 thereof. ( 34 )

97.

It is obvious that an assessment of the third consideration cannot take place in the abstract. Given the complexity of assurance products, the ‘essential characteristics’ of one product may not necessarily be those of another. Compliance with the information disclosure obligation contained in Article 36(1) of the Life Assurance Directive must hence be carried out on a case-by-case basis in the light of the particular factual circumstances, with account being taken of the balancing exercise explained in the previous point of this Opinion.

98.

While it is not for this Court to carry out that determination in the present cases, it may nonetheless be useful to make three observations relating to the referring court’s explanation of the legal and factual assessment before it.

99.

First, any divergence in the meaning of the Polish linguistic version of point (a)11 of Annex III(A) does not change the scope of the information that needs to be disclosed pursuant to that annex. In accordance with the settled case-law of the Court, it is clear that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, nor can it be given priority over the other language versions in that regard. The need for the uniform interpretation of an EU measure precludes one version of the text being considered in isolation, and requires that the measure be interpreted by reference to the general scheme and purpose of the rules of which it forms part. ( 35 )

100.

Second, as regards the situation of the applicant in Case C‑143/20, I agree with the referring court, the Polish Government and the Commission that a simple one-word definition, in other words defining the units of the investment fund as being composed of ‘derivatives’ or ‘structured products’, is insufficient to satisfy the requirements of point (a)11 of Annex III(A). It is clear that the ‘essential characteristics’ of a product require at least some economic and/or legal description of those units so that the consumer can decide whether that product suits his or her needs.

101.

In addition, the referring court notes that the contract presented to the applicant in C‑143/20 did not include rules on valuation, either of the fund units or of the net assets of the total fund, or, for that matter, information on how the certificates in which the premiums were to be placed would be selected. Information of such a limited scope is obviously insufficient for a consumer to be able to understand the economic and legal nature of the underlying assets and to assess the related risks thereof. However, the final word on this assessment against the information threshold contained in points (a)11 and (a)12 of Annex III(A) falls to the national court to make.

102.

Third, in relation to the applicants in C‑213/20, if recital 52 of the directive is given any regard at all, the information which needs to be disclosed to them cannot be as ‘detailed’ or ‘exhaustive’ vis-à-vis the scope or the extent and types of ‘all risks’ associated with the investment. By definition, the ‘essential characteristics’ of a product are not ‘detailed’ or‘exhaustive’. They merely cover the ‘essential’ elements thereof. Indeed, it is naturally impossible to detail all risks of a complex investment product. All that is required is to disclose the true nature of the underlying instrument and the structural risks inherent therein, known or reasonably foreseeable when the disclosure is carried out. That being said, only the national court can carry out a complete assessment of whether the demands by the applicants in Case C‑213/20 fall outside the scope of points (a)11 and (a)12 of Annex III(A), as required by Article 36(1) of the Life Assurance Directive.

103.

In the light of those observations, I propose that the Court answer Question 2 in Case C‑143/20 and Questions 2 and 3 in Case C‑213/20 as follows:

Article 36(1) of the Life Assurance Directive is to be interpreted as requiring communication of the true nature of the underlying product and the structural risks inherent therein. That information includes a definition of the units to which the benefits of the unit-linked policies are linked and an indication of the nature of the underlying assets of those policies which covers at least the essential economic and/or legal characteristics of those units and underlying assets.

It is for the national court to determine whether, in the light of the particular circumstances of a case, the information communicated to a consumer satisfies that threshold.

104.

By Question 4 in Case C‑213/20, the referring court in essence asks whether Article 36(1) of the Life Assurance Directive implies the requirement to put in place a separate pre-contractual procedure during which the information contained in Annex III(A) must be disclosed to the consumer. If that is the case, the referring court then seeks guidance on whether that article would preclude a provision of national law, such as Article 13(4) of the Law on Assurance Activities, under which it is sufficient to disclose the information required by Article 36(1) of the Life Assurance Directive for the first time in the assurance contract and during the signing thereof.

105.

The applicants in Case C‑213/20 maintain that the information contained in Annex III(A) to the Life Assurance Directive should have been communicated to them before and not during the signing of the declarations to accede to the group life assurance contract at issue. Only that way could a consumer make an informed decision about the choice of insurance coverage which best suits his or her needs.

106.

The defendant in Case C‑213/20 and the Polish Government disagree with that position. They essentially explain that the wording of Article 36(1) of the Life Assurance Directive does not indicate either the need for a pre-contractual procedure or the precise moment when the information contained in Annex III(A) must be communicated to the consumer. On that basis, the defendant in Case C‑213/20 and the Polish Government explain that since Article 13(4) of the Law on Assurance Activities does not specify the point in time at which the information disclosure obligation should take place, that provision is not precluded by Article 36(1) of the Life Assurance Directive.

107.

The Commission draws an analogy with the existing case-law of the Court in the area of consumer credit and consumer rights which has interpreted similar obligations to require disclosure ‘in good time’ before the agreement is signed. ( 36 ) On that basis, it would be insufficient to communicate the information contained in Annex III(A) only at the point of the conclusion of the contract.

108.

I agree with the Commission.

109.

The wording of Article 36(1) of the Life Assurance Directive is the point of departure. That provision explains that at least the information listed in Annex III(A) must be disclosed ‘before the assurance contract is concluded’. ( 37 ) No further explanation is provided as to when that communication must take place, or whether a separate ‘pre-contractual’ procedure must be put in place by national law. The first paragraph of Annex III(A) merely adds that such information must be provided ‘in a clear and accurate manner, in writing, in an official language of the Member State of the commitment’.

110.

As such, the text of the Life Assurance Directive requires that communication of the minimum information laid down therein take place prior to the conclusion of the assurance contract at issue. In itself, that would already logically preclude that ‘point of disclosure of the information’ from being identical to the ‘point of conclusion of the contract’.

111.

Moreover, as the Polish Government correctly noted, reading Article 36(1) of the Life Assurance Directive in the light of recital 52 thereof, it becomes clear that the purpose of distinguishing those two moments is to offer a consumer a certain period of time during which he or she can take full advantage of the diversity and increased competition (in the internal market for assurance) so as to ‘enable him/her to choose the contract best suited to his/her needs’.

112.

However, in contrast to certain other instruments of EU law, ( 38 ) the Life Assurance Directive does not lay down a minimum period of time in that regard. In the absence of such rules, it is for the national legal order of each Member State to establish, in accordance with the principle of procedural autonomy, procedural rules to safeguard consumer rights to that effect. However, those rules may not be less favourable than the rules governing similar domestic actions (the principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness). ( 39 )

113.

There has been no indication that the disputes in the main proceedings raise questions of equivalence. However, as the referring court suggests, to the extent that Article 13(4) of the Law on Assurance Activities allows for the possibility to disclose the information contained in Annex III(A) to the Life Assurance Directive at the same time as the conclusion of a life assurance contract, it is necessary to examine that provision in the light of the effectiveness of the objective sought by the Life Assurance Directive, and in particular Article 36(1) thereof.

114.

In this regard, it appears from the explanations of the parties in the court file that Article 13(4) of the Law on Assurance Activities takes over the open-ended wording of Article 36(1) of the Life Assurance Directive without, however, specifying when the disclosure of the information contained in Annex III(A) to that directive must take place.

115.

That is not a problem as such. Even if interpreted in the light of the object and purpose of the directive, Article 36 thereof does not require the national law transposing it to provide for a fixed moment in time, a minimum disclosure period, or even a separate disclosure proceeding. At the same time, however, in the reality of individual cases, the consumer must be given sufficient time to make an informed choice as to the assurance contract he or she wishes to enter into. Such an informed choice can only come about if a consumer is given, in writing, the relevant minimum amount of information, and is offered some time, unless he or she explicitly declines to make use of that time, to weigh the risks and benefits arising from the resulting contractual decision.

116.

It is evident that the principle of effectiveness would preclude such information from being provided either solely orally, or in writing only at the point in time of the signing of the assurance contract. That is why some EU consumer protection directives refer to the need to transmit to the consumer certain minimum information ‘in good time’ prior to the formulation of a consumption decision. ( 40 ) The Court has also construed similar subjective language from Article 6(1) of Directive 2011/83/EU, without that directive containing such wording. ( 41 )

117.

The object and purpose of the Life Assurance Directive calls for the same type of ‘buffer’ period for the consumer to formulate his or her decision. The exact length of that proper reflection period is bound to be case-dependent, factoring in elements such as the complexity of the proposed assurance contract, the situation of the consumer at issue, as well as the circumstances of the conclusion of the contract and its presentation. In view of the foregoing, what exactly amounts to ‘good time’ and whether the amount of ‘reasonable reflection’ was satisfied may naturally differ across individual cases.

118.

I therefore propose that the Court answer Question 4 in Case C‑213/20 as follows:

Article 36(1) of the Life Assurance Directive must be interpreted as precluding national legislation which does not guarantee that a consumer receives at least the information laid down in Annex III(A) to that directive at some point prior to the conclusion of the contract, in writing, and in a clear and accurate manner which allows him or her, after a period of reflection, to make an informed choice thereon.

It falls to the national court to verify whether those conditions have been complied with in the main proceedings.

119.

Questions 4 to 6 in Case C‑143/20 and Question 5 in Case C‑213/20 enquire into the consequences of a failure to disclose at least the information contained in Article 36(1) of the Life Assurance Directive.

120.

Those questions raise that issue from the perspective of the Unfair Commercial Practices Directive and the Life Assurance Directive, respectively. Given that the latter takes precedence over the former in a case of conflict between those instruments, ( 42 ) it is necessary first to turn to Question 5 in Case C‑213/20. Only if that question reveals that the Life Assurance Directive does not regulate the consequences of a failure to disclose at least the information contained in Annex III(A) to that directive may one validly turn to Question 4 in Case C‑143/20.

121.

Question 5 in Case C‑213/20 enquires whether Article 36(1) of the Life Assurance Directive ought to be interpreted as meaning that if the obligation contained therein was not performed correctly, the consumer would have the right to claim repayment of all the assurance premiums paid, regardless of whether it is on the ground of a possible declaration that the contract is invalid or void.

122.

In my view, that cannot be the case. As all parties with the exception of the applicant in Case C‑213/20 correctly point out, such an interpretation does not flow from Article 36(1) of the Life Assurance Directive. That provision simply does not regulate the consequences of a breach of the obligation to provide the information required by Article 36(1) thereof. ( 43 )

123.

Indeed, as the Court has held, albeit in relation to the predecessor provision of what is now Article 36(3) of the Life Assurance Directive, ‘the consequences under domestic law of a failure to provide that information are, in principle, irrelevant as regards the conformity [with that provision] of the obligation to provide information’. ( 44 )

124.

There is no indication, nor have there been any arguments presented to suggest, that that finding should be any different for Article 36(1) of the Life Assurance Directive. Certainly, consequences must arise from the failure to provide at least the information contained in Annex III(A) to the Life Assurance Directive. However, it is for national law to set out the specific types of consequences in line with the principle of national procedural autonomy and subject to the requirements of equivalence and effectiveness.

125.

Therefore, in my view, Article 36(1) of the Life Assurance Directive does not regulate the consequences of a failure to provide at least the information listed in Annex III(A) thereof, which thus remains for the national law to determine.

126.

Questions 4 to 6 in Case C‑143/20 further enquire whether the failure to disclose at least the information mandated by Article 36(1) of the Life Assurance Directive constitutes an unfair commercial practice within the meaning of Article 5 of that directive, or a misleading omission within the meaning of Article 7 thereof.

127.

In view of the answer that I propose to Questions 1 and 2 in Case C‑143/20, ( 45 ) Questions 5 and 6, raised in that same case, become moot. In this present section, I shall accordingly only consider Question 4 in Case C‑143/20, and thereby assess whether the failure to disclose certain minimum information to a consumer may constitute an unfair commercial practice within the meaning of Article 5 of that directive, or a misleading omission within the meaning of Article 7 thereof.

128.

The Polish Government and the Commission essentially consider that the failure to communicate at least the information mandated by Article 36(1) of the Life Assurance Directive may constitute an unfair commercial practice within the meaning of Article 5 of the Unfair Commercial Practices Directive. It could amount in particular to a misleading omission within the meaning of Article 7 thereof, when such an omission leads or is likely to lead the average consumer to make a transactional decision which he or she would not have taken otherwise.

129.

The Polish Government adds that that consideration is not called into question by Article 3(4) of the Unfair Commercial Practices Directive. The latter directive does not conflict with the Life Assurance Directive. Instead, it complements the Life Assurance Directive as regards the consequences of a failure to satisfy the minimum information requirements set by EU law.

130.

I largely agree with the Commission and the Polish Government.

131.

The ‘conflicts clause’ in Article 3(4) of the Unfair Commercial Practices Directive is explained in recital 10 of that directive as only applying ‘in so far as there are no specific Community law provisions regulating specific aspects of unfair commercial practices, such as information requirements and rules on the way the information is presented to the consumer’. It thus gives precedence to other provisions of EU law that provide for such consequences. ( 46 )

132.

However, as explained in points 121 to 125 of this Opinion, the Life Assurance Directive does not regulate the specific issue of the consequences of a failure to satisfy the information disclosure obligations of Article 36(1) thereof. Therefore, there cannot be any discernible conflict arising from the application of those two legal instruments at the same time. ( 47 ) Instead, the Unfair Commercial Practices Directive complements the Life Assurance Directive on that point by merely indicating what type of requirements under Article 36 of the latter directive may be seen as ‘material’ for the purposes of Article 7 of the former directive. ( 48 )

133.

Having clarified that issue, it becomes necessary to determine whether the failure to satisfy the information disclosure obligation in Article 36(1) of the Life Assurance Directive could constitute an unfair commercial practice within the meaning of Article 5 of the Unfair Commercial Practices Directive, or a misleading omission within the meaning of Article 7 thereof.

134.

The Unfair Commercial Practices Directive is intended to establish uniform rules on unfair business-to-consumer commercial practices in order to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection. ( 49 ) It applies to such unfair practices arising before, during and after a commercial transition is rendered. ( 50 ) In that context, it appears undisputed that, in consenting to accession to the unit-linked group life assurance contract in the main proceedings, the defendants and the applicants in the main proceedings engaged in ‘commercial practices’ within the meaning of Article 2(d) of the directive. ( 51 )

135.

Article 5 of the Unfair Commercial Practices Directive concerns the prohibition of unfair commercial practices. Paragraph 1 thereof lays down that general prohibition. ( 52 ) Paragraph 2 of that article explains what is considered unfair: commercial practices which are contrary to the requirements of professional diligence and materially distort or threaten to distort the economic behaviour of the ‘average consumer’. ( 53 ) Paragraph 4 then defines two specific categories of ‘unfair’ commercial practices. One of those categories concerns ‘misleading’ commercial practices.

136.

Article 7 of the Unfair Commercial Practices Directive is an expression of the specific category of ‘misleading commercial practices’. ( 54 ) It concerns ‘misleading omissions’. Paragraph 1 of that article imposes on traders a positive obligation to provide consumers with all information deemed ‘material’, the omission of which is subject to penalties in accordance with national law, ( 55 ) provided that that omission causes or is likely to cause the consumer to take a transactional decision that he or she would not have taken otherwise.

137.

At the same time, recital 15, read in conjunction with Article 7(5) of and Annex II to the Unfair Commercial Practices Directive, implies a legislative presumption that the information required by Article 36 of the Life Assurance Directive, including paragraph 1 thereof, must be considered as ‘material’ for the purposes of Article 7(1) of the Unfair Commercial Practices Directive. ( 56 )

138.

Accordingly, it is for the national court to assess, in the light of all the factual circumstances before it, whether, first, the policyholders in Case C‑143/20 omitted to communicate the ‘material information’ contained in Annex III(A) to the Life Assurance Directive and, second, whether, on the basis of that omission, the applicants in Case C‑143/20 (pegged against the standard of a reasonably circumspect and average consumer), likely took or were likely to take a transactional decision that they would not have taken otherwise. ( 57 )

139.

Fundamentally, that is an assessment that only the national court, in full knowledge of the factual circumstances in the main proceedings, can make. That being said, it might be useful to make two observations worth considering by the referring court when delivering its assessment under Article 7 of the Unfair Commercial Practices Directive.

140.

First, it is important to consider that, by virtue of Article 7(5) of the Unfair Commercial Practices Directive, the EU legislature has deemed the information in Annex III(A) to the Life Assurance Directive the absolute minimum for disclosure in the case of life assurance products. Where that is not the case, recital 52 of the Life Assurance Directive implies that a consumer does not have the capacity to choose ‘the contract best suited to his/her needs’. Those presumptions must then play a significant role when assessing whether their non-disclosure caused or was likely to cause an average consumer to take a transactional decision that he or she would not have taken otherwise.

141.

Second, the standard of review when assessing whether an average consumer would have taken the transactional decision at issue is of an objective nature. It takes account of the reasonably informed and circumspect consumer. ( 58 ) As such, the yardstick is detached from any particular or peculiar subjective wishes of a given consumer. In particular, the subjective feelings of a consumer, namely that he or she would have subjectively loved to receive more information, are not decisive in such an (necessarily objectified) assessment.

142.

In the light of the above, I propose that the Court answer Question 4 in Case C‑143/20 as follows:

Article 7(1) and (5) of the Unfair Commercial Practices Directive must be interpreted as meaning that the omission to communicate at least the information mandated by Article 36(1) of the Life Assurance Directive constitutes a misleading commercial practice, if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, the average consumer was not provided with information which he or she needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause that consumer to take a transactional decision that he or she would not have taken otherwise.

It falls to the national court to verify whether that is the case in the main proceedings.

143.

I propose that the Court answer the questions referred for a preliminary ruling by the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for Warszawa-Wola, Warsaw, Poland) as follows:

Question 1 in Case C‑143/20 and Question 1 in Case C‑213/20:

Article 36(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance must be interpreted as meaning that the pre-contractual information disclosure obligation therein requires the counterparty to a contract with a consumer, where the latter accedes to a group life assurance contract without becoming a policyholder under the underlying, original assurance contract, to communicate to that consumer at least the information listed in Annex III(A) to that directive.

Question 2 in Case C‑143/20 and Questions 2 and 3 in Case C‑213/20:

Article 36(1) of Directive 2002/83 is to be interpreted as requiring communication of the true nature of the underlying product and the structural risks inherent therein. That information includes a definition of the units to which the benefits of the unit-linked policies are linked and an indication of the nature of the underlying assets of those policies which covers at least the essential economic and/or legal characteristics of those units and underlying assets. It is for the national court to determine whether, in the light of the particular circumstances of a case, the information communicated to a consumer satisfies that threshold.

Question 4 in Case C‑213/20:

Article 36(1) of Directive 2002/83 must be interpreted as precluding national legislation which does not guarantee that a consumer receives at least the information laid down in Annex III(A) to that directive at some point prior to the conclusion of the contract, in writing, and in a clear and accurate manner which allows him or her, after a period of reflection, to make an informed choice thereon. It falls to the national court to verify whether those conditions have been complied with in the main proceedings.

Question 4 in Case C‑143/20:

Article 7(1) and (5) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council must be interpreted as meaning that the omission to communicate at least the information mandated by Article 36(1) of Directive 2002/83 constitutes a misleading commercial practice, if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, the average consumer was not provided with information which he or she needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause that consumer to take a transactional decision that he or she would not have taken otherwise. It falls to the national court to verify whether that is the case in the main proceedings.