Some Reflections on Insurance Guarantee Schemes Compatibility with EU’s Constitutional Protections of Business and Property

Michael Lanser, Senior Legal Counsel, Skandia Mutual Life Insurance Company

The EU Commission’s ongoing review of the Solvency II Directive includes a proposal for the introduction of EU harmonized insurance guarantee schemes (IGSs). Such a scheme is motivated by increasing consumer protection for policyholders, in addition to the already high level of consumer protection the Solvency II regime entail. IGSs are supposed to provide last-resort protection to policyholders. The compensation according to IGSs shall be made with mandatory support for financing of the schemes from unrelated and competing insurance companies. A compulsion to participate in IGSs means that the insurer is legally restricted in the right to decide how its own funds are to be used in the business, corresponding to the amount set aside for an external purpose which it has not chosen and has no control over. These restrictions for insurers have constitutional implications under the EU Charter and the ECHR, that is, the protection therein of the freedom to conduct business and the right to property. To comply with these constitutional rights, the EU’s institutions may legislate as it deems necessary if such legislation meets certain essential prerequisites. In order to assess this, a thorough analysis is required other than, like the Commission, merely claiming that an IGS is not expected to have a direct impact on fundamental rights.

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Insurance Insurance May 2021 Vol.14, No. 55, Spring 2021

Michael Lanser


Michael Lanser holds a degree of Master of Laws from Stockholm University, Sweden, and a postgraduate Master of Laws degree in Comparative Law, Economics and Finance (LL.M. CLEF) from the International University College of Turin jointly with the University of Turin, Italy. At present Michael Lanser works as a senior legal counsel at Skandia Mutual Life Insurance Company in Sweden. Additionally, Michael Lanser serves as member of the board of directors of two Swedish limited liability companies that offer administration services relating to pensions and other employment benefits, and has served as a board member of a Swedish asset management company and of an alternative investment fund company domiciled in Luxembourg.

Insurance Insurance May 2021 Vol.14, No. 55, Spring 2021