The proposed change in the Act on complaints stems from the need to implement into national law the provisions of Art. 14 of the Directive on insurance distribution (IDD), according to which Member States shall ensure that procedures are set up which allow customers and other interested parties, especially consumer associations, to register complaints about insurance and reinsurance distributors, and the complainants receive replies in all cases. On the other hand, Art. 15 of the IDD requires Member States to ensure the establishment of adequate and effective, impartial and independent out-of-court complaints and redress procedures in order to settle disputes between customers and insurance distributors concerning the rights under the IDD. And, in both cases, it is possible to use existing national institutions.
Therefore, as Poland has an Act on complaints (in force as of October 2015), which defines the rules for handling filed by customers by the entities of the financial market of complaints, the Polish government chose to use the existing law and extend its scope to insurance distributors within the meaning of the new law on distribution of insurance.
Thus, the act on complaints shall also cover insurance intermediaries and agents offering ancillary insurance (performing insurance distribution). Currently, within the insurance market, only insurance companies are subject to the Act on complaints. The proposed solution provides the possibility for customers to file a complaint on services provided by other distributors of insurance, as well as file
a request for consideration of the case by the Financial Ombudsman. The proposed solution also provides the ability to solve disputes with distributors by the Financial Ombudsman through non-judicial proceedings, set forth in the Act on complaints.
There is, however, doubt as to the scope of liability of an insurance agent and an insurance company, in the case of simultaneous submission by a customer of a complaint concerning services provided both to the agent, as well as to the insurance company. According to art. 30 of the Act on insurance and reinsurance activity, notices and statements made in connection with an insurance contract to the insurance agent shall be deemed to have been submitted to the insurance company on behalf of which the insurance agent acts, provided that they are submitted in writing or another durable medium; the insurance company shall not exclude or limit this authorization for the agent. This means that the insurance company will be responsible for the proper handling of the complaint both filed by the client directly, as well as filed with an insurance agent. Such a situation may give rise to practical problems, in particular when both entities handle the complaint in a different way. Doubts may also appear with respect to the subject of a complaint, when it concerns the services provided by an agent, in particular a multi-agent. In such case, will the entity responsible under the act on complaints be only the insurance company or also the insurance agent, which has been indicated in the amendment as a separate entity of the financial market, subject to its provisions. In accordance with the spirit of the IDD all distributors should all be subject to complaint procedures, but in the Polish insurance market where there is a division into insurance agents and insurance brokers a seemingly simple amendment can create problems.