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Case Details

Case Details
National ID MD 2011:21
Medlemsstat Sverige
Common Name link
Decision type Court decision in appeal
Decision date 27/07/2011
Domstol Marknadsdomstolen
Ämne
Kärande The Consumer Ombudsman
Svarande Moderna Försäkringar (branch office to Tryg Forsikring A/S Danmark)
Nyckelord consumer rights, insurance contract, standard contract, unfair terms

Unfair Contract Terms Directive, Article 3, 1.

The following contractual terms, when used in relation to consumers, are considered unfair:
(1) the agreement term for the insurance is longer than 12 months;
(2) the insurance will automatically terminate in the event of total damage or theft by burglary, the premium will then not be refunded and the insurance will not be transferred on to a replacement product.
The defendant is an insurance company offering, inter alia, product insurance to consumers for consumer electronics purchased in certain stores. The insurance period for the product insurance can be up to five years and the consumer must pay the premium in advance for the entire agreement term.

Following a report from the plaintiff and another authority in 2009, in which several insurance companies were criticized, the plaintiff initiated a supervisory matter against the defendant, inter alia, on the basis that the defendant applies an agreement term that exceeds 12 months and that the defendant does not refund premiums upon total damage.
Whether the following contractual terms, which are used in relation to consumers, are considered unfair:
(1) the agreement term for the insurance is longer than 12 months;
(2) the insurance will automatically terminate in the event of total damage or theft by burglary, the premium will then not be refunded and the insurance will not be transferred on to a replacement product.
The court prohibits the defendant, under the penalty of a fine, when offering consumer insurances for consumer electronics, to apply the following contractual terms or substantially similar terms:
a. the insurance period is 12 months, however the entire insurance period may not exceed 5 years;
b. the insurance will automatically terminate in the event of total damage or theft by burglary if you are compensated with a replacement product. The premium will then not be refunded and the insurance will not be transferred on to a replacement product.

The court finds that the first contractual term regarding the agreement term is contrary to mandatory provisions in the Swedish Insurance Contracts Act, which states that the agreement term shall not exceed 12 months unless special circumstances apply. Despite the defendant's objections that longer agreement terms are common in the industry and that the agreement may be terminated before the end of each 12 months' period, the court finds that the contractual term is unfair as it is contrary to mandatory law.

The Court considers that the second contractual term, which specifies that the insurance shall terminate automatically upon total damage or theft by burglary and that no part of the premium then shall be refunded and that the insurance is not passed on to the new product, is contrary to mandatory provisions in the Swedish Insurance Contracts Act. Thus, the contractual term shall be considered unfair against consumers.

Both the contractual terms in question are included in the defendant's standard terms and conditions, which apply in relation to all consumers. Due to this fact and from a public point of view, the court finds that the defendant shall be forbidden to use these contractual terms or substantially the same terms.
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The plaintiff's claims are granted.