Until the 1970s, credit insurance in France suffered from an uncertain legal situation. European law has broken down these artificial barriers, allowing it to be applied in all Member States. development as a genuine insurance contract. How did this development come about? What are the implications for businesses?
Community competence in credit insurance
The Treaty on European Union explicitly grants specific powers in the area of credit and credit insurance. Articles 112 and 113 on the common commercial policy form the legal basis for this.
Article 113 specifies that " the common commercial policy shall be based on uniform principles, in particular as regards [...] export policy and commercial defence measures" . This legal basis has made it possible to harmonise disparate national provisions.
The stages of European harmonisation
The directive of 24 July 1973: the first opening
The EEC Directive of 24 July 1973 marked the first decisive step. It authorised insurers to set up in any EU country, subject to certain conditions. This directive broke with the previous compartmentalisation, which reserved certain activities for banks or insurers, depending on the country.
ECJ opinion of 11 November 1975: exclusive jurisdiction
The Court of Justice of the European Communities reinforced this approach in its opinion no. 1/75 of 11 November 1975. It states that " the field of common commercial policy, and more specifically that of export policy, necessarily includes export aid schemes "This is an exclusive Community responsibility.
Member States can therefore only intervene with the explicit agreement of the Community.
Directive 87/343 of 22 June 1987: definitive recognition
This directive represents a major step forward for credit insurance. Despite initial reservations about its compatibility with Community principles, it establishes a harmonised framework for this activity.
The directive of 22 June 1988: freedom to provide services
Directive 88/357/EEC simplifies the rules allowing companies to operate abroad. It classifies credit insurance and surety insurance as "large risks" where the policyholder is engaged in a professional activity and the risk relates to that activity.
Practical consequences for insurers and policyholders
Freedom to provide services
European directives introduce the freedom to provide services, allowing insurers from one Member State to offer their services in another Member State without being established there, particularly in the field of insurance.export credit insurance. Article L.112-7 of the Insurance Code now requires the insurer to inform the policyholder of the name of the Member State in which the contracting establishment is located before any commitment is made.
The "single licence" and the home country contract principle
The directives of 18 June and 10 November 1992 introduced the "single licence", based on the principle of the "single licence". home country contract. Any insurer may offer insurance policies from the Member State in which it has its head office. This implicit recognition has enabled insurers to offer credit insurance throughout the Union.
Integration into French domestic law
Adaptation of the Insurance Code
The Insurance Code has gradually incorporated these European developments. Law no. 94-5 of 4 January 1994 introduced a number of exceptions, in particular article L.111-6, 1°, c, which classifies "insurance" as an insurance contract.credit insurance among the major risks.
Article L.112-2 requires the insurer to provide an information sheet prior to conclusion of the contract. Article L.112-4 sets out the minimum information that the credit insurance policy must contain.
Classification into separate branches
Article R.321-1 of the Insurance Code expressly lists both credit insurance than bond insurance among the activities that an insurance company may carry out with authorisation. Credit insurance is classified in class 14, separate from surety insurance (class 15).
This distinct classification definitively confirms the legal nature of credit insurance as a genuine insurance contract.
The classification of an insurance contract is not trivial. It implies the application of specific rules such as compensation, subrogation and information obligations, which differ from banking mechanisms.
Companies using credit insurance need to master this legal framework to optimise their protection. A specialist legal advice enables you to identify the essential clauses and avoid contractual pitfalls in an area where the financial stakes can be considerable.
Sources
- EEC Directive of 24 July 1973
- Opinion n°1/75 of the ECJ of 11 November 1975 (ECR 1975, I, p. 1355)
- Directive 87/343 of 22 June 1987 (OJEC No. L 185, 4 July 1987)
- Directive no. 88/357/EEC of 22 June 1988 (OJEC no. L 172, 4 July 1988)
- Insurance Code, articles L.111-6, L.112-2, L.112-4, L.112-7 and R.321-1
- Law no. 94-5 of 4 January 1994
- Véronique Nicolas, "Assurance-crédit interne et à l'exportation", JurisClasseur Droit bancaire et financier, Fasc. 800, 31 August 2005.
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