I OVERVIEW

In Belgium, insurance and insurance law has become a hot topic in the media. Increasingly, policyholders are dissatisfied with the amount of premium, the refusal of the insurer to provide coverage, claims handling and alleged violations of legal obligations such as information requirements.

The legislator is continuously working on legal solutions and trying to adapt existing legislation to fit contemporary practices and complaints. For example, new information requirements have been published concerning costs and charges of insurance mediation. Moreover, some discriminations have been eliminated by extending the mandatory insurance for architects to contractors and other actors in the construction sector.

It is not only legislation that is evolving, but also case law. Sometimes, the highest courts in Belgium reconsider previous judgments or provide for additional conditions, for example, the exclusion of cover for intentional damage. Moreover, courts can refine legal concepts such as right of redress, loss of an opportunity or apparent mandates. Belgium also relies upon European case law for defining certain concepts, such as insurance mediation, investment advice and agreements on jurisdiction.

In this chapter I discuss in detail the legal framework of insurance disputes, interesting recent case law, international insurance disputes and emerging trends in insurance claims.

II THE LEGAL FRAMEWORK

i Sources of insurance law and regulation

If Belgian law practitioners have to start their insurance law research, they initially rely upon the Act of 4 April 2014 concerning insurance (the Insurance Act), which contains provisions on the insurance contract, the obligations of the parties, limitation periods, insurance mediation and distribution, and supervision of insurance companies.

Apart from this rather long Insurance Act, Belgium has a number of specific acts (e.g., for motor vehicle insurance, damage caused by terrorism, and the status and supervision of insurance companies) and countless Royal Decrees (e.g., for life insurance and fire insurance for simple risks).

While the law changes constantly, the following key developments are worth mentioning from the past 12 to 18 months:

  1. The Act on mandatory liability insurance of motor vehicles has changed significantly to adapt the legislation to the evolution of case law. The most notable changes are the following: (1) the definition of a motor vehicle has been adjusted to be relevant to the means by which we move today, (2) coverage of a person liable for someone else's actions is no longer limited to the employer, (3) the insurer no longer has to prove the causal link between the absence of a valid driver's licence and the accident to exercise his or her right of redress, and (4) only damage suffered by innocent victims and their beneficiaries has to be compensated when two or more vehicles are involved in a traffic accident and when it is impossible to determine which vehicle caused the accident.2 On 2 May 2018, a Royal Decree of 16 April 2018 was published, imposing minimum conditions for the mandatory liability insurance of motor vehicles.
  2. On 7 March 2017, the new Indicative Table was published. This is used by parties and courts to estimate the damage caused by a liable party. While it contributes to a certain harmonisation throughout Belgium and promotes a more efficient and faster compensation for victims, the Indicative Table remains indicative and is not binding. Since it is used as a guideline, the call for change often arises.
  3. A Royal Decree of 2 May 2017 approved the Regulation of the Financial Services and Markets Authority of 24 February 2017 on the information on costs and charges that intermediaries must provide to their clients when providing insurance mediation services in Belgium. This regulation provides more transparency about the functioning and financing of the intermediary and entered into force on 1 January 2018.
  4. The Act of 31 May 2017 expanded the mandatory 10-year liability insurance for architects to contractors and other service providers in the construction sector for immovable works on buildings intended for residence. This insurance covers the liability of these professionals, which has a duration of 10 years starting from the acceptance of the works.
  5. On 4 August 2017, the Act of 18 July 2017 concerning the establishment of the statute of national solidarity, the allocation of a recovery pension and the reimbursement of medical care due to acts of terrorism was published. This Act develops a remuneration scheme for victims of terrorism and their relatives and was inspired by the terrorist attacks of 22 March 2016 in Brussels.

ii Insurable risk

In theory, almost every risk is insurable. However, a few exceptions exist.

First and foremost, fines and settlements in criminal matters are not insurable.3 However, the person who is legally liable for the perpetrator can insure such fines and settlements unless the insurance relates to road traffic or road transport.

Second, no insurer can be obliged to provide coverage for intentional damage.4 After all, when damage is induced intentionally, the parties to the insurance contract have not been confronted with any risk, which is one of the key components of insurance.

Third, some legal statutes or codes provide for general exclusions, such as Article 127 Insurance Act, which excludes from the coverage of natural disaster insurance harvest that has not been gathered, cattle living outside a building, soil, crops and forest plantations. However, the insurance contract can deviate from this provision.

Fourth, some insurers might refuse to insure a risk owing to cost-benefit analysis. Insuring a certain risk might prove to be too costly or too risky for the insurer. For example, a health insurer for pets always refuses to cover hereditary diseases. Generally, no insurer covers damage caused by war or similar circumstances.5 The same applies to the life insurer who, in principle, does not cover suicide or death immediately and directly caused by a crime intentionally committed by the insured as perpetrator or co-perpetrator, if the consequences were foreseeable.6

Another distinction can be made between compulsory insurance and non-compulsory insurance. Belgium has introduced compulsory insurance for no less than 32 categories of risks. These categories are:

  1. occupational accidents;
  2. architects, contractors and other service providers in the construction sector in real estate;
  3. investments;
  4. mediation;
  5. payment institutions and collective investment undertakings;
  6. surveillance companies, internal surveillance services and security companies;
  7. accounting and tax professions, insolvency practitioners and temporary administrators;
  8. civil security;
  9. audit agency;
  10. service providers;
  11. animals;
  12. healthcare;
  13. hunting;
  14. fairground activities;
  15. nuclear installations;
  16. surveyor experts;
  17. environment;
  18. local public institutions;
  19. notaries;
  20. education, training and childminders;
  21. public procurement;
  22. publicly accessible institutions;
  23. care homes;
  24. social developments;
  25. sports;
  26. mine waste;
  27. trustees of real estate;
  28. tourism;
  29. employment;
  30. transport;
  31. volunteers; and
  32. health.

iii Fora and dispute resolution mechanisms

Insurance disputes are dealt with on various levels. Frequently, the general conditions of the insurance company advise the policyholder to file a complaint with the internal ombudsman service. If this step is unsuccessful, the policyholder often contacts the Ombudsman of Insurances, established by the Federal Public Service of Economy.7 The Ombudsman of Insurances tries to settle the dispute and to obtain a favourable solution for every party and for the insurance sector in general.

Increasingly, parties try to resolve their dispute amicably, not only through the Ombudsman of Insurances, but also through binding third-party decisions8 and mediation.9

A policyholder or the insurance company can also subpoena the other party before regular courts. Which court depends on the amount of the claim, the nature of the claim and the capacity of the parties:

If the amount of the claim does not exceed 5,000, the claim can be brought before the justice of the peace.10

Generally, claims have to be brought before courts that hold special or exclusive competence. For example, claims for damages resulting from a traffic accident have to be brought before a police court, unless the dispute has a purely civil nature.11 The labour court is competent for occupational accidents and group insurance (supplementary pensions).12 If an insurer files a subrogation claim against a tenant, the claim has to be brought before the justice of the peace. In most cases, however, the parties refer insurance disputes to the court of first instance.

If the parties are both enterprises or if the defendant is an enterprise, the claim has to be brought before a commercial court.

The Belgian legislator is not very fond of arbitration in the insurance sector. According to Article 90, Section 1 of the Insurance Act, the insurance contract cannot include an arbitration clause. However, the Royal Decree of 24 December 1992 makes an exception for certain types of insurances.13

III RECENT CASES

i Intentional damage

As mentioned above, an insurer cannot be forced to cover a person who intentionally causes damage (Article 62 of the Insurance Act). One of the points of discussion is damage caused by suicide.

On 23 February 2017, the Belgian Court of Cassation had to answer the question of whether a fire insurer and a household insurer had to provide cover for a fire in a home and physical damage suffered by a third party as a result of a gas explosion caused by the policyholder.14 That policyholder committed suicide by opening a gas cylinder and lighting a cigarette. His wife and daughter asked for compensation for the fire damage to their inherited home from the fire insurer. His son asked for compensation for his physical damage resulting from the explosions from the household insurer.

According to the Court of Cassation, the intentional fault presupposes the will to cause damage resulting from the realisation of the risk covered by the insurance contract. For the exclusion of Article 62 of the Insurance Act to be applied, the will of the insured to commit suicide must relate to damage covered by the insurance contract.

In other words, it does not suffice that the policyholder wanted to cause his death and that this death can be considered as damage. If, for example, the fire insurer wishes to rely on Article 62 of the Insurance Act, he or she has to prove that the policyholder wanted to cause fire damage.

This judgment adds an additional condition to the exclusion of intentional damage. Previously, is was presumed to be sufficient if the policyholder intended to cause damage.15

ii Burden of proof

According to Article 65 of the Insurance Act, a loss of right to insurance benefits can only be stipulated in the insurance contract for failure to comply with a specific obligation imposed by the contract and provided that there is a causal link between the failure to comply and the event that led to the damage.

In the dispute that led to the judgment of the Court of Cassation of 13 February 2017,16 the general conditions of the theft insurer stipulated that, in the event of absence, all exterior doors of the building had to be closed with a key or by means of electronic security. If not, the insured would lose his right to insurance benefits, unless there was a case of theft by means of burglary.

The Court of Appeal of Brussels had ruled that the insured did not prove burglary sufficiently. The Court of Cassation annulled that judgment because it is the insurer who has to prove that the conditions of Article 65 are met. In other words, the insurer has to prove that the insured failed to comply with these preventive measures and that a causal link between this failure and the theft can be established.

iii Subrogation rights and right of redress

Can an insurer exercise a right of redress against an insured?

Article 95, Section 1 of the Insurance Act determines that the insurer that has paid compensation may be subrogated to the rights and legal actions of the insured or the beneficiary against the liable third parties.

KBC Bank took out construction all risk insurance with AXA for the renovation of an office. One of the insured parties was the architect ES°TE. Separately, ES°TE also took out a professional liability insurance with PROTECT.

Owing to an error on the account of the architect, KBC suffered damage and AXA paid compensation to her. Subsequently, AXA wanted to exercise a right of redress with regard to ES°TE and its insurer, PROTECT.

However, the general conditions of the construction all risk insurance state that AXA does not have a right of redress with regard to the insured parties, unless these insured parties are insured separately.

AXA subpoenaed ES°TE and PROTECT for repayment of the compensation. ES°TE and PROTECT were of the opinion that a right of redress can only be exercised against a liable third party, not against an insured party, which they were. Accordingly, they argued that the general conditions could not apply.

The Court of Cassation ruled on 24 February 2017 that subrogation can only take place with regard to the liable third parties.17 However, an insured party can be considered to be a third party if the insurer does not cover its activities. Therefore, an insurer can exercise a right of redress with regard to an insured party if the insurer provides coverage to another insured party.

Nature of the damage and subrogation

According to Article 136, Section 2 of the Act concerning the mandatory insurance for medical care and payments, coordinated on 14 July 1994, the health insurer may be subrogated to the rights of the insured, up to the amount of the provided benefits arising from incapacity to work caused by sickness, injuries, functional disorders or death.

In Belgium, a distinction can be made between material damage and the loss of an opportunity. The Court of First Instance of Antwerp held a hospital and two doctors liable for a medical error during the treatment of a patient. The Court of Appeal of Antwerp confirmed that liability and described the damage not as material damage but as a loss of an opportunity.

Subsequently, the Court ruled that the compensation needed to be paid to the health insurer of the patient, since that health insurer already paid compensation to the patient because of his incapacity to work caused by the medical error.

However, the Court of Cassation annulled that judgment on 23 September 2013 because Article 136 Section 2 of said Act only refers to material damage, not to a loss of an opportunity. The economic value of a loss of an opportunity cannot consist of the full amount of the ultimate loss or lost advantage or, in other words, the material damage.18 The Court of Cassation referred the case to the Court of Appeal of Ghent.

That court was of the opinion that the health insurer had covered any damage caused by incapacity to work and that this is damage other than the economic value of a loss of an opportunity. Therefore, the health insurer cannot receive the compensation for the loss of an opportunity, even though it has subrogated to the right of its insured.

The health insurer was understandably not satisfied with this opinion and asked the court to pose preliminary questions to the Constitutional Court. These questions can be summarised as follows:

  1. Does this situation violate Articles 10 and 11 of the Constitution (the prohibition of discrimination)?
  2. Can it be considered discrimination when the health insurer can exercise a right of redress against the liable party when the compensation is based on material damage but not if it is based on a loss of an opportunity, while both compensations are calculated on the basis of the actual loss of income?

The Constitutional Court ruled on 30 March 2017 that this distinction is based on an objective criterion that is not related to the objective pursued. In principle, the victim has only a right to insurance benefits insofar as his damage is not compensated in another way. If Belgium does not allow health insurers to subrogate to the rights of the insured, this would impose an excessive burden on these institutions and the finances of health insurance, and it would lead to an unjustified difference in treatment of insured persons. Therefore, this situation violates Articles 10 and 11 of the Constitution.

The Belgian legislator has yet to change Article 136, Section 2 of the Act of 14 July 1994.

iv The apparent mandate

An insurance broker (and banking agent) misappropriated money of clients that was intended for investment products. The victims subpoenaed the broker, as well as the insurer (and the bank) since they considered the insurer to be jointly liable as principal, and at least on the basis of an apparent mandate.

Article 1998 of the Belgian Civil Code dictates that the represented entity is not bound by the legal acts concluded by the representative if the representative does not have the necessary representative authority. However, a number of exceptions exist, one of which is the apparent mandate.19 If the semblance of representative authority is attributable to the represented entity and if the third party could reasonably assume this semblance to be the reality, the represented entity is bound by the legal acts concluded by the representative. The semblance is attributable to the represented entity if he or she has contributed to the creation of the semblance or maintained it by his or her own free will, statements or conduct.20

In this case, the insurer was of the opinion that an insurance broker cannot create a semblance that he or she represents an insurer because the broker is not tied to one particular insurer. An insurance broker is independent by definition.21

The Court of Cassation disagrees. This statutory independence does not preclude that the broker can create a semblance that he or she represents an insurer.

Therefore, if the broker drafts proposals for insurance contracts of a particular insurer and transfers information brochures of life insurance products and investments products of that insurer to possible clients, the insurer can be held liable for the misappropriation of money by the insurance broker.

IV THE INTERNATIONAL ARENA

For the international and European areas, Belgium and other Member States often look to the European Court of Justice.

i A European interpretation: insurance mediation and investment advice

The interpretation of certain areas of European insurance law by the European Court of Justice might prove to be very meaningful for the Belgium practice.

On 31 May 2018, the European Court of Justice interpreted the notions of 'insurance mediation' and 'investment advice'.22 The following two situations caused this judgment:

  1. A number of consumers entrusted sums to a registered insurance intermediary to be invested in corporate bond products that were to be linked to a capital life assurance. Sometime later, it transpired that the managing director of the insurance intermediary had stolen those sums. His estate and the insurance intermediary were declared insolvent and its insurer refused to pay compensation for any damage suffered by the consumers. According to the insurer, the conduct of the insurance intermediary did not constitute insurance mediation because the products involved were fictive. The money was never invested in corporate bond products linked to a capital life assurance.
  2. Following the advice given by an insurance mediation company, a man, as capital life assurance, invested a sum in an investment certificate that subsequently lost its entire value. This insurance mediation company was also declared insolvent and its insurer refused to pay compensation. According to this insurer, the advice did not concern the capital life assurance but only the investment in the financial instrument that was linked to it. Therefore, that advice was not covered by the professional indemnity insurance.

What is insurance mediation? There are two questions to be asked.

First, does the concept of 'insurance mediation' cover work preparatory to the conclusion of an insurance contract, even in the absence of any intention of the insurance intermediary to conclude a genuine insurance contract?

According to Directive 2002/92, insurance mediation can be defined as 'the activities of proposing or carrying out other work preparatory to the conclusion of contracts of insurance, or of concluding such contracts . . .'. It is of no importance whether or not a contract is concluded after the preparatory work.

It is also of no importance whether or not the insurance intermediary has the intention of concluding a genuine insurance contract since the realisation of preparatory work is an objective concept. In other words, even if the insurance intermediary has the intention of stealing the money, this is considered to be 'insurance mediation'.

The European Court of Justice emphasises the wording, the context and the objective of Directive 2002/97. This Directive is intended to protect customers against any failure of the intermediary. Furthermore, the insurance intermediary cannot rely upon its own fraudulent behaviour.

Second, does the concept of 'insurance mediation' cover financial advice relating to the placement of capital given as part of insurance mediation concerning the conclusion of a capital life assurance contract?

In this case, the placement of capital formed an integral part of the insurance contract. The financial advice related to the placement of capital in an investment certificate and that capital consisted of insurance premiums. Therefore, the financial advice can be considered to be 'insurance mediation'.

By this judgment, the European Court of Justice expanded the protection of the customer yet again. Neither the intermediary, nor the insurer, can artificially exclude the application of Directive 2002/92.

ii Choice of forum

In a judgment of 31 July 2017, the European Court of Justice interpreted old Article 9-14 and old Article 13 of Regulation No. 44/2001.23 Old Article 13 grants the opportunity to parties to assign the court competent to rule on any dispute regarding the insurance contract. However, such an agreement on jurisdiction cannot violate the provisions that protect the parties to an insurance dispute.

In 2007, a Swedish company transported sugar beet to a factory in Denmark, partly by ship. For this transport by ship, the Swedish company concluded a liability insurance, including a choice of forum in favour of the courts of England and Wales.

When one of the tugs arrived in the Port of Assens (the Port), damage was caused to the quay installations. The Port brought a direct action before a Danish court against the liability insurer of the Swedish company, which was presumably liable for the damage but had gone into liquidation.

That Court dismissed the action on the ground that the Danish courts did not have jurisdiction, referring to the agreement on jurisdiction. The Port filed an appeal against that judgment. According to the Port, it cannot be bound by an agreement on jurisdiction concluded between the liability insurer and the liable Swedish company.

The Supreme Court of Denmark referred the following question for a preliminary ruling: can an injured party who is permitted under national law to bring an action directly against a insurance company be bound by an agreement on jurisdiction concluded between the insurer and the policyholder?24

The answer is no. The European Court of Justice referred to the objective of the protective provisions, namely, to correct the imbalance between the parties to an insurance contract.25 Furthermore, old Article 11(2) Regulation No. 44/2001 declares Article 8-10 applicable to direct actions brought by a victim against an insurer, but not Article 13-14 concerning an agreement on jurisdiction.

Therefore, an agreement on jurisdiction concluded between an insurer and an insured party cannot be invoked against a victim of insured damage who wishes to bring an action directly against the insurer.26

V TRENDS AND OUTLOOK

i Busiest areas of claims

It is very difficult to assess the busiest areas of insurance claims in Belgium. Belgium does not have an overview of all claims that were referred to the different courts. However, one can investigate all insurance disputes of the highest courts of Belgium, since their judgments are published. Here it becomes apparent that most disputes involve the mandatory liability insurance for motor vehicles. Of course, this is very understandable since every person who owns or drives a motor vehicle is obliged to take out a liability insurance.

The same conclusion can be made for all complaints filed with the Ombudsman of Insurances.27 In 2017, 1,373 complaints involved motor vehicles insurance, 989 fire insurance, 914 life insurance and 769 health insurance. The remaining complaints were about legal expenses insurance (516), various insurances (transport, credits and complaints not clearly defined, 458), other civil liability insurance (258), cancellation insurance (256), assistance insurance (177), all risks insurance (e.g., for mobile phones, 170), risks concerning credit cards (114), occupational accidents (76) and individual accidents (50).

According to the Ombudsman of Insurances, many questions arise regarding the cancellation of insurance contracts.28 Consumers are not as loyal to a particular insurer as they used to be and are often exploring the best coverage for the best price. Any formalities for cancelling insurance contracts are more and more regarded as obstacles and disagreements between policyholder and insurer occur increasingly.

Policyholders often expect swift responses and a clear explanation of the insurer.29 However, insurers increasingly introduce telework and call centres. This results in long waiting periods and an impersonal approach. Furthermore, the policyholders do not accept inertia in handling the dossiers. A slow payment by the insurer often results in financial problems. However, not only the insurer can be blamed for inertia and numerous codes of conduct exist.

Insurance intermediaries are often confronted with complaints about alleged violations of their information requirements.30 Most of these complaints arise in life insurance (e.g., the potential risk, the costs, capital protection or the consequences of tax legislation) and motor vehicles insurance (e.g., changing amount of the premium and the insured value of the vehicle).31

ii Areas that are likely to evolve and become more important in the future

First, new or changed legislation always results in new disputes and case law. Two noteworthy examples are the General Data Protection Regulation (GDPR) and the Insurance Distribution Directive (IDD).

Since the entry into force of the GDPR, insurers have had to change their privacy policy.32 One of the most important changes is the protection against data breaches. Cyberattacks occur increasingly, and as a result, insurance against cyberattacks is becoming more vital for businesses. One can see more and more insurers introducing these new kinds of policies. Since they are relatively new, they might become a hot topic in the near future.

Furthermore, courts are often confronted with claims concerning life insurances without guaranteed return (Branch 23). In the years before the financial crisis, these insurances were promoted by and concluded with the help of insurance intermediaries who were, at the time, not heavily regulated. The clients now start proceedings because rather recently it became clear that all the money was lost. They often claim that the insurance intermediaries or the insurer withheld information, and that if they had received that information they would have invested in another product.

Evidently, the European and national legislator have started to regulate the activities of insurance companies and intermediaries. Clients are increasingly aware of the behaviour that the insurance companies and intermediaries have to adopt.

One of the most recent pieces of European legislation is the IDD, which has not yet been implemented in Belgian law.33 This instrument is not only relevant for compliance officers, but also for clients who can expect certain behaviour of their contracting party.

Second, a general awareness of global problems, such as climate change, can result in new insurance policies. Currently, many insurers are reluctant to provide coverage for weather disasters – for example, in the agricultural sector, the renewable energy sector, the transport sector or the tourism sector – because of high costs and risks. However, these kind of insurance policies become more essential than ever. Reliance on the Belgian Agricultural Disaster Fund might not be sufficient. Therefore, the Belgian government has promoted insurance for weather disasters since the autumn of 2017 and continues to negotiate in favour of affordable premiums together with several agricultural organisations.34

Third, technological and scientific progress sparks new insurance policies. As mentioned above, the first cyber-insurance policy was concluded in 2010.35 Vanbreda Risk & Benefits, a Belgian independent insurance broker and risk consultant, predicts that drone insurance will become common in 2020 and that the first insurance policy for robotics and automated guided vehicles will appear in 2030.36

Insurance law is an ongoing process of trial and error and a constant interaction between the legislator, the judiciary and the executive. When new legislation is published, case law will evolve. When case law evolves, legislation has to be changed. When certain insurance problems receive media attention, both are relatively forced into a certain direction. Therefore, it is fairly possible that new topics will arise in the future, and we, as law practitioners, are looking forward to any evolution of insurance law.


Footnotes

1 Merel van Dongen is a lawyer at Schuermans advocaten.

2 Act of 31 May 2017 changing the Act 21 November 1989 concerning the mandatory liability insurance for motor vehicles.

3 Article 155 Insurance Act.

4 Articles 62 and 240 Insurance Act.

5 Article 63 Insurance Act.

6 Article 164 Insurance Act.

7 Royal Decree of 21 June 2006 modifying the handling of complaints in the insurance sector defined in the Royal Decree of 22 February 1991 containing general regulations concerning the supervision of insurance companies and of the Royal Decree of 25 March 1996 implementing the Act of 27 March 1995 relating to insurance mediation and the distribution of insurance; Articles 302 and 303 Insurance Act of 4 April 2014.

8 The parties agree that a third party will make a binding decision about their dispute. This third party is no judge or arbitrator. For example, in legal expenses insurance: Article 157 Insurance Act and Article 7-8 Royal Decree of 12 October 1990 concerning the legal expenses insurance. For example, in fire insurance: Article 121 Insurance Act.

9 Articles 1730-1737 Judicial Code.

10 Article 590 Judicial Code.

11 Article 601 bis Judicial Code.

12 Article 578, 22-24° and Article 578 bis Judicial Code.

13 (1) The insurance contract other than non-marine insurance; (2) fire insurance for industrial risks; (3) civil liability insurance other than motor vehicle insurance, private life insurance and fire insurance for simple risks; (4) insurance contracts that cover monetary losses for industrial risks; (5) construction all risk insurance other than goods that meet the criteria of simple risks; (6) the risks covered in an additional or complementary manner in the agreements concluded in accordance with the Act of 3 July 1967 concerning the compensation for occupational accidents, accidents on the way to and from work and occupational diseases in the public sector and the Act of 10 April 1971 concerning occupational accidents; (7) insurance contracts of which the duration is shorter than one year; (8) credit and bail insurance.

14 Cass. 23 February 2017, T.Verz. 2018, 2, 241, with annotation of J. Rogge.

15 Cass. 26 October 2011, Arr.Cass. 2011, 574, NJW 2012, 214, with annotation of G. Jocqué.

16 Cass. 13 February 2017, C.16.0280.F, JLMB 2017, 42, 1990, TBH 2018, 2, 178.

17 Cass. 24 February 2017, C.16.0243.N, T.Verz. 2017, 4, 432.

18 Cass. 15 May 2015, Arr.Cass 2015, 311; Cass. 21 April 2016, C.15.0286.N.

19 N. Portugaels and J. Van de Voorde, 'Het onbestaande rechtsbeginsel van het schijnmandaat en de goede trouw', De Juristenkrant 2018, 370, 4.

20 Cass. 22 February 2018, C.17.0302.N.

21 Article 1, 6° Act of 27 March 1995 concerning the insurance- and reinsurance mediation and the distribution of insurance.

22 European Court of Justice 31 May 2018, Länsförsäkringar Sak Försäkringsaktiebolag, C-542/16.

23 Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Now article 10-16 Regulation (EU) No. 1215/2012 Of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).

24 'Must Article 13, point 5, read in conjunction with Article 14, point 2(a), of Regulation No. 44/2001 be interpreted as meaning that an injured party who is permitted under national law to bring an action directly against the company providing insurance cover for the party which caused the harm is bound by an agreement on jurisdiction validly concluded between the insurer and the policyholder in accordance with Article 13, point 5, read in conjunction with Artice 14, point 2(a), of that regulation?'

25 European Court of Justice 26 May 2005, GIE Réunion européenne and Others, C-77/04, paragraph 22.

26 European Court of Justice 13 July 2017, Assens Havn, C-368/16, paragraph 40.

27 Annual Report of the Ombudsman of Insurance, available at: www.ombudsman-insurance-annualreport.be/2017-ombudsman-verzekeringen-jaarverslag/.

28 Annual Report of the Ombudsman of Insurance, available at: www.ombudsman-insurance-annualreport.be/2017-ombudsman-verzekeringen-jaarverslag/ p. 9.

29 Annual Report of the Ombudsman of Insurance, available at: www.ombudsman-insurance-annualreport.be/2017-ombudsman-verzekeringen-jaarverslag/ p. 10.

30 Annual Report of the Ombudsman of Insurance, available at: www.ombudsman-insurance-annualreport.be/2017-ombudsman-verzekeringen-jaarverslag/ p. 15.

31 Annual Report of the Ombudsman of Insurance, available at: www.ombudsman-insurance-annualreport.be/2017-ombudsman-verzekeringen-jaarverslag/ p. 15.

32 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

33 Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (recast).