The Act on insurance activity of 11 September 2015 provides for a new, unknown under the formerly effective legal status, provision on prohibition to pay remuneration to the policyholder. In accordance with Art. 18 item 1 of the Act on insurance activity, in insurance contracts concluded on another person’s behalf, in particular in group insurance, the policyholder cannot receive remuneration or other benefits in connection with offering the possibility of insurance coverage or activities related to the performance of the insurance contract. This does not preclude the insured from commiting against the policyholder to finance the cost of the insurance premium.
The prohibition from receiving remuneration or other benefits also covers persons acting for or on behalf of the policyholder (Art. 18 item 2). Although the wording of this provision is ambiguous, however basing on the information provided by the author of the Act on insurance activity – the Ministry of Finance, and the function of this provision, it should be considered that the prohibition does not apply to insurance brokers acting on behalf and for the benefit of the policyholder as insurance intermediaries. This provision refers only to persons acting on behalf and for the benefit of the policyholder, which in practice is usually a legal person or an organizational unit without legal personality, e.g. to employees or representatives of the policyholder. Under this provision, such a person, just as the policyholder, cannot receive remuneration and other benefits in connection with offering the possibility of insurance coverage or activities related to the performance of the insurance contract.
The provisions of Art. 18 item 1 first sentence and item 2 do not apply to group insurance contracts concluded on behalf of employees or persons working under civil law contracts and members of their families, as well as contracts concluded on behalf of the members of associations, professional associations or trade unions.
It shall be mentioned that pursuant to the transition provisions of the Act on insurance activity, these provisions shall apply to insurance contracts concluded before the entry into force of the Act on insurance activity in respect of events occurring after the date of its entry into force. This means that the prohibition in question refers only to acts of the policyholder or the persons involved, related to the contract, taken as of the date of entry into force of the Act. Without any reservations it must be applied to insurance contracts concluded after the entry into force of the Act on insurance activity.
The provision of Art. 18 of the Act on insurance activity constitutes the implementation of the principles expressed by KNF in the U Recommendation and the Guidelines, according to which insurance companies should not pay remuneration to the policyholder.
It shall be strongly emphasized that this provision refers solely to remuneration or other benefits received in connection with offering the possibility of insurance coverage or activities related to the performance of the insurance contract. Therefore, the situation is significantly different as to the payment a share in profit, provided for in an agreement concluded by and between e.g. an insurance company and another entity, engaged in the distribution process. Share in profit does not constitute remuneration either for offering insurance products to clients, or for activities related to the performance of insurance contracts.
What should be considered is whether a share in profit can be qualified as “other benefits”, referred to in Art. 18 of the Act on insurance activity, as the legislator does not define the term “other benefits received in connection with offering the possibility of insurance coverage or activities related to the performance of the insurance contract”. Given the above, based on the literal wording of this provision, in the absence of opinions of jurisprudence and doctrine, it seems that it shall be considered that the so-called other benefits are the remuneration of the value of assets held in capital funds within unit-linked products in which premiums are paid regularly by the policyholder. At the same time, it should be remembered that there is no basis to qualify the share in profit as „other benefits” within the meaning of Art. 18, even for the reason that the payments under the share in profit agreement is not dependent on offering insurance products to clients, nor is it due for performance of activities related to the performance of the insurance contract. The payment of such benefits under the share in profit shall be made at the stage when the insurance contract has already been concluded, and a certain number of persons has entered into the contract, and thus it shall be made at the stage following the stage of offering the possibility of entering into the insurance contract. The payment of the share in profit shall be independent of performance of any activities related to the insurance contract. The share of the profit is paid in connection with the financial results reached by a given insurance company, agreed by the parties of the agreement, and the payment is not subject to any actions of the beneficiary. Considering the above, it shall therefore be considered that receiving share in profit, as a rule, does not fall within the prohibition laid down in Art. 18 of the Act on insurance activity.
