On 18 January 2017, the Court of Appeal of Luxembourg dealing with commercial matters reversed the decision of the 15th chamber of the District Court of Luxembourg dated 1 April 2015, in relation to the permitted distribution of dividends to certain policyholders of Excell Life International S.A., a Luxembourg life-insurance company put in judicial liquidation on 12 July 2012 (“Excell Life”).
The merit of this judgement is to provide guidance as to the scope of the concept of patrimoine distinct embodied under Article 39 of the law of 6 December 1991 on the insurance sector (“Insurance Sector Law”)1 2. The main question for the Court of Appeal was to determine whether - as retained by the Luxembourg District Court - each insurance policy constitutes a specific pool of underlying assets entitling the relevant policyholder to specific payments in relation therewith, or as the claimants argued, the concept of a distinct pool of assets under the Insurance Sector Law must be construed as a single pool of assets common to all insurance claims and benefiting all insurance claimants (thus excluding any type of payments benefiting certain insurance claimants out of this common pool)
Through a literal construction of Article 39 of the Insurance Sector Law and analysis of the legislator’s intention regarding the concept of a distinct pool of assets under Article 39 (including its various use in previous laws preceding the Insurance Sector Law), the Court of Appeal reversed the decision from the Luxembourg District Court by confirming that the concept of distinct pool of assets should be understood as a single (global) pool of assets and that any distribution out of such single pool should benefit all insurance claimants. The Court of Appeal thus rejected the defendants’ selective policy-by-policy interpretation of the first paragraph of Article 39 of the Insurance Sector Law by establishing that all insurance claimants should benefit, in proportion to their rights, from all the assets of Excell Life underlying technical provisions as at 12 July 2012. It follows that in addition to the confirmations brought by this judgement, the solution adopted by the Court of Appeal implements the legislator’s true intention to establish a concept of distinct pool of assets per insurance branch (here life insurance) and not within the same branch. This solution furthermore comforts our previous findings made in our commentary of the Luxembourg District Court’s decision of 1 April 2015 (ALJB n°58, pages 36-44, also quoted in the Court of Appeal’s decision ).
1.The Insurance Sector Law was repealed and replaced by the Luxembourg Law of 7 December 2015 on the insurance sector and the first paragraph of Article 39 of the Insurance Sector Law now broadly corresponds to the first paragraph of Article 118 of the Law of 7 December 2015.
2.According to the first paragraph of Article 39 of the Insurance Sector Law, all assets representing technical provisions constitute a distinct pool of assets allocated preferentially to guaranteeing payment of insurance claims.
