Le décret n° 2022-34 du 17 janvier 2022, paru au journal official le 18 janvier dernier, modifie les modalités de renforcement de l'encadrement du démarchage téléphonique en matière de distribution de produits d'assurance.
Thus, it specifies the procedures for keeping recordings of sales and information calls from employees and prospects and imposes new sanctions on insurance distributors.
As a preliminary point, it will be recalled that a “distributor of insurance or reinsurance products is any insurance or reinsurance intermediary, any insurance intermediary on an ancillary basis or any insurance or reinsurance company” (L511-1 C. des ass.).
Furthermore, for the record, the new article L112-2-2 IV will provide that “In order to allow the Prudential Control and Resolution Authority and the Directorate General for Competition, Consumer Affairs and Fraud Prevention to monitor compliance with the obligations provided for in this article, the distributors record, keep and guarantee the traceability of all telephone communications made before the conclusion of the insurance contract, for a period of two years.”
The following paragraph specifies however that “This article is not applicable when the distributor is bound to the subscriber or to the prospective member by a contract in progress or when the subscriber or the prospective member has requested the call or has consented to be called, by committing in a clear, free and unequivocal manner an express step in this direction.
However, in order to comply with its obligations, the distributor must make available to “the Prudential Control and Resolution Authority and the Directorate General for Competition, Consumer Affairs and Fraud Prevention the supporting documents enabling it to verify compliance with the conditions provided for in the first paragraph of this V.”
The decree therefore provides that in the event of a breach of one of the obligations of this article, the distributor is liable to a fine provided for 5th class contraventions.
This decree therefore establishes a new financial penalty in the event, in particular, of a breach of the rules in terms of Protection of personal data.
Indeed, the insurance broker who does not respect his obligations in terms of personal data protection could cumulate three pecuniary sanctions from the CNIL, the DGCCRF and the ACPR.
In our view, this is a alarm bell for all insurance distributors, who will quickly have to comply.
Finally, this decree also determines the parties considered bound by a current contract and the criteria according to which a call can be considered as having been solicited or granted.
Thus, “the current contract means any insurance contract or any contract relating to the transactions mentioned in Articles L. 311-1 and L. 311-2 of the Monetary and Financial Code in force on the date of the prospecting by telephone”, moreover, “The parties to this contract and the distributor who directly offered it are considered to be bound by this contract”.
Finally, a call cannot be regarded as having been solicited or consented to when, in particular, the subscriber or potential member was not informed before the requested call of the identity of the distributor, when the call is made beyond beyond thirty days following the date on which the subscriber or potential member consented to be called or even when the consent of the latter has not been clearly and freely expressed.
The decree will come into force on April 1, 2022.
This article engages only its author.