Nationale-Nederlanden and Van Leeuwen had concluded a life assurance contract. The premium was to be used both for life insurance and for investment. In 2008, roughly eight years later, Van Leeuwen discovered that almost 60% of the premium he had paid had not been used for investment. Van Leeuwen had been fobbed off with a so-called woekerpolis.
Van Leeuwen complained that nothing in the information he received suggested that Nationale-Nederlanden could withhold such a large part of the premium. In particular, he did not receive a separate overview of the actual costs and their structure. He claimed that Nationale-Nederlanden thus violated a special duty of care under Dutch private law. The company argued that it has provided Van Leeuwen with all the information required under the Regeling Informatieverstrekking aan verzekeringsnemers 1998, which is an implementation of the Third Life Assurance Directive.
May the special duty of care go further than the information duties under the Directive? This question was referred to the ECJ by the district court of Rotterdam. The answer depended on the interpretation of Article 31 (3) of the Directive:
‘The Member State of the commitment may require assurance undertakings to furnish information in addition to that listed in Annex II only if it is necessary for a proper understanding by the policyholder of the essential elements of the commitment.’
In its judgment, the ECJ held that an insurance company may indeed be required – ‘on the basis of general principles of domestic law’ – to give additional information, ‘provided that the information required is clear, accurate and necessary for the policyholder to understand the essential characteristics of the commitment and that it ensures a sufficient level of legal certainty, which it is for the referring court to ascertain’ .
By answering the question in such general terms the Court has, in effect, deferred the question to the national court, which had already indicated in an interim judgment that it wanted to hold Nationale-Nederlanden liable. In the terminology of Tridimas, this case could therefore be qualified as a deference case, in which the ECJ chooses to provide a ruling in abstracto – as opposed to outcome cases, in which the ECJ leaves the referring court virtually no room for maneuver, and guidance cases, in which the ECJ sets parameters and provides guidelines.
The commentators were disappointed: they had expected a ‘crucial ruling’, but got an ‘ambiguous judgment’ and a decision ’not to intervene’. But was the ECJ to blame? Both the Advocate-General and the Court complained that the referring court did not explain matters clearly. In the words of the ECJ:
‘(…) [T]he referring court has not provided the Court with a detailed explanation as to the exact nature, in Netherlands law, of the obligation to provide additional information nor as to the exact role played and scope, in national law, of the “open and/or unwritten rules” of Netherlands law, merely referring to the duty of care of the insurance company, pre-contractual good faith and/or the requirements of reasonableness and fairness which must preside over the conclusion of assurance contracts.’
We do not know whether this miscommunication was due to a lack of experience when it comes to referring preliminary questions, or was used as a tactic. But the observations of Tridimas may be equally true for referring courts: just as the specificity of the answer is ‘not a random exercise but a conscious judicial choice’, so is the specificity of the preliminary question. Perhaps the district court of Rotterdam did not want to aim for a clear outcome or detailed guidance, but for deference. It now has ample room for maneuver.