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DUNAV OSIGURANJE

WIENER STADTISCHE

3,4-2009

Loyal and disloyal competition ininsurance

neoliberalismus, unlauterer und lautere wettbewerb, geschaftspraktiken, informationspflicht, konsumentenschutz

Business practices, different approaches to information disclosure and conflicts of interest have caused the lack ofcredibility and trustworthiness regarding insurance companies and on the insurance market as a whole. Potentially unfair business practices have been declared as 'well implemented'by some 'particularly flexible'insurers. The EU regulations provide the best possible prevention for the customers as well as non-customers against such business practices.

German and Austria have done a pioneer work in fighting against unfair competition since the beginning of the 20th century, so that EU. did not actuallv have to 'rediscover a wheel'. Unfair Competition Law is the basic legal framework against unfair competition in Germany, having its origins in the law from 1909. It grants the claim rights in case of omission, damage, liguidation, skimming of excess profit and information. Unfair competition is therefore a part of trade and industrial law. Unfair competition, according to the German Unfair Competition Law, 'is any fraudulent, deceptive, or dishonest business conduct or attitude that can affect the relationship between suppliers and consumers'. Unfair business practices are especially those, which can be called 'aggressive'and 'misleading'.

The EU. Directive on unfair commercial practice 2005 stipulates the regulations and requirements, especially regarding information disclosure, but all of them very important for civil law.

Austrian law regulations provide special measures in case ofrepeatedly injuring of regulations, as well as consumers' claims and warning letters in order to settle the damage in order to spear customer 's costs and trouble in court.

Competition restrictions in Austria are regulated by Anti-trust Law (Kartellgesetz KartG 2005), forbidding misuse of monopoly market position. Howevery some forms of cooperation and mutual agreements of insuring companies are useful for customers as well. The purpose of such cooperation are jointly made in order to make calculations on the basis of average costs in certain cases of risks, or mortalitv tables, illness, crash or accident frequency rates etc. It makes risk management easierfor insurers, and consequently makes an insurance contract more convenient for a customer.

The European Commission enacted the Commission regulation (EC) No 358/2003 of27February 2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector (entered into force on 1 April 2003 and expiring on 31 March 2010). The regulation was to meet two major requirements of ensuring effective protection of competition and providing adequate legal security for undertakings.

Wolfgang Rohrbach

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