SINISTERS AND INSURANCE COVERS

The Insurance legislation and the European consumer problems

Introduction

The advances of the science and the technique, the evolution though a progressive industrialization that has multiplied widely the risks of causing damages in exchange of the mere economic benefit, the consequent gradual evolution of the judicial interpretations though the modern "risk theories" and "fault objectivity" (who creates a risk must respond of its possible harmful consequences to third people), as well as the incessant search of security and protection of patrimony and rents which entails the social state of the well-being, these are some of the main factors that have caused that from approximately half of century XX to our days, has taken place spectacular apogee of the insuring activity in all what today it is the communitarian Europe, that has nevertheless not seen to reach such levels in all the States members, and this not only for differences in questions of industrial and economic development, but also, by clear sociological reasons and even for simple custom or tradition.

Normatively the insurance field is perhaps one of which, from all points of view, it has been more influenced by the Communitarian Right. Its origin could be found in the dispositions of the TCE that did beneficiaries of the liberties of establishment and benefit of services to the communitarian companies of insurance, circumstance that entailed that simultaneously the establishment of a common regime for contracts of insurance was considered necessary, that quickly had begun to operate in all the communitarian area, which derived in a complex communitarian regulation that was dictating in several stages, in a staggered and fragmented form according to the different branches of the insurance, causing finally the existence of the present maremagnun normative, so confused that until the own European legislator, when given account, has tried to mitigate it partially through the publication of Rewrite texts.

But still in spite of this out of proportion ruled eagerness, the certain thing is that the existing regulation has not been able to avoid the existence of important differences in the protection of the consumer depending on the legislation of the State member that is applied, and it mainly because, although the results of the process of harmonization of the Right of insurance of the States members suppose, in opinion of the more specialized doctrine, the best example of the integrating function of the Private International Right, we must regret that this European norm has gone more to try to regulate the insurance sector at enterprise level that to obtaining a true protection of the European consumer, and in this way, we found that one of the most characteristic elements of the European norm resides indeed in the incidence of norms of Public Right (those that regulate the control of the insuring activity), in which really supposes rather a relation of Private Right between the contractors. In this way we reach the conclusion that the consideration of most of the problems provoked for the European consumer in relation to the insurance contract, are directly linked to the understanding of the process of communitarian liberalization of the activities related to the insurance.

It is sure that the European norm has established rules of common minimums for the protection of the consumer, but has done it in a way of merely orientation, that are really the States members those that in greater measurement define the final degree of protection to the consumer, specially in the matter of publicity and commercialization of contracts.

For all these reasons, we are going to analyze, among other questions, mainly the problematic ones to which in this insuring scope it comes facing the consumer, to develop simultaneously several proposals of normative evolution to, in a future, reach a greater homogenization and improvement of the communitarian legislation agreed with the reality and, most beneficial possible for the European consumer.

II. - ANALYSIS

As we have pointed previously, the present situation of the European legislation in the matter of insurance counts with important deficiencies in relation to the consumer protection, among other reasons mainly with the occasion of having focused more in provided a regulation from the point of view of the enterprise, that in looking for an effective protection of the European consumer, reason by which exists a urgent necessity to carry out a legislative reform that corrects such deficiencies.

Normative regulation. – The present normative situation of the insurance sector comes characterized by its excessive complexity, caused by successive proliferation of norms that in a progressive and fragmented way has been dictating at all levels, and which motivates the urgent necessity of a reorganization and update, so that finally we can find one or two texts only, to which it’s possible to go without a need of returning to previous norms that although partially are being countermanded, subsist for certain aspects. In this sense already a first step is given with the elaboration of a adapt Text with respect to the regulation of life insurances.

Mainly the European regulation in the matter of insurances has been carried out instrumentally through a series of successive Directives characterized mainly for establish solely rules of minimums that have left into the hands of the States members the option of regulating with bigger amplitude great part of the questions, between which are great part of which specifically talk about consumer protection. Such Directives have been very criticised by the majority legal doctrine, that understands these, as norms not directly applicable, theoretically they forced the legislator to establish clear and precise criterions. However, it doesn’t seem that this imperative of clarity and simplicity guided the aims of the authors of the Directives, pawned in a difficult synthesis between totally different models. Essential synthesis even to make effective the free benefit of services. Thus for example, one of the main problems that the harmonized norms raise consists in the determination of which are the regulated contracts of insurance. Problem that, as well, is transferred to the national norms of incorporation of the dispositions of the Directives.

On the other side, we find that the Directives are only applied to insuring authorized in a Member State. In this way the Directives present an emptiness that urgently must be covered as far as the regulation of the insurance contracts which cover risks located in the Community celebrated with insuring excluded from the scope of application of the Directives or with insuring of third States, not established in a State member. Emptiness that if it is not corrected properly at the level of the European Union, can and must be overwhelmed when incorporating the harmonized solutions, which partially has made already some State member (for example Germany).

In which specifically talks about the protection of the consumer, a lack of specific protection is detected before diverse practices of the insurers, on which, in spite of being known, never direct legislative measures have been taken, as are for example the derived ones of the different agreements subscribed internally between the companies, by which is the own insuring who, in case of happening a wreck, pays the indemnification that would have to pay the insurance of the opposite vehicle cause of the damage, as long as it doesn’t exceed certain agreed quantity. The experience of the Consumer Associations is that these agreements cause malaise, distrust and great number of claims between the consumers, because although the companies insist on that the referred system of agreements makes agile proceedings and shortens terms (CIDE, ASCIDE, etc.), is sure that it has provocated that, happened a wreck, the own insurer of the user is part interested in the conflict and as so obviously cannot defend with guarantees and impartiality the rights of its insured (it offers a smaller indemnification to him than it would correspond to him, it shows to him lack of inviability of a possible claim, reduces to him advantages, influence the supposed impartiality of the action of the experts of the own companies, etc).

Two possible measures to save the conflicts that this habitual practice will entail are, by a side demanding the publicity of such agreements, and on the other hand, to give a greater publicity to the freedom of election of the insured defense, because it is evident that the professionals freely chosen by the own insured will have the biggest freedom in the technical direction of the entrusted subjects, without depending on the instructions of the Insurer, but as complement to it, it is important that the Courts of Justice consider in an unanimous form that the mere existence of an agreement between the insuring companies of the vehicles implied in an accident estimates a clear conflict of interests that qualifies the insured to carry out the mentioned free election of professionals paid by the own insurance.

Another aspect that we considerate fundamental by the judicial and theoretical controversies that provocates, but that nevertheless has not either been regulated with clarity and forcefulness, it is the relative one to the form of compensation of the caused damage. On which once and for all it would have to establish the preference of the value of reparation of the damages on the venal value of the vehicle (theoretical value of the market of the vehicle given based on its mark - model - version and date of matriculation), for responding the first one to the purpose of reestablishing the economic and patrimonial situation of the harmed one, because is known that the venal value is not equivalent to the value of use (nor still adding to it an extra of a theoretical increase for "affection value" of the vehicle), and the opposite situation would be equivalent to break the patrimony of that, because it is obvious that the only way to obtain the "restitutio in natura" of the damage is the reparation of the vehicle, and thus it must obligatorily to proceed, even though will be superior its cost to the hypothetical value from sale of the vehicle, unless the own harmed, in the concrete case specifically accepts an agreement in the opposite sense or it is clear the impossibility of reparation.

Concurrence and legislation applicable to the Insurance Contract. - The norms of concurrence in the matter of insurances conform a complex system between concurrent and exclusive competences, by which, although in a limited way, the plaintiff has the possibility of choosing between the Courts of different States, because it does not exist an unique competence and in addition it is possible that the own parts, in certain cases and fulfilling conditions very strict that guarantee the interests of the insured, can through the explicit submission prorogue the judicial concurrence of a certain Court. In certain way one has been looking for a system that lent special protection to the contracting part considered weaker before the abuses that could exert through the mechanism of the unilateral predetermination of the content of the contract through the general conditions of these (adhesion contracts), although, without showing preference for the option of establishing an exclusive competition in favour of the forum of the address of the insured, but who has settled down a complicated system of judicial concurrence whose rules change according to the position that the part typically considered weaker occupies in the process, to that as compensation is created the possibility to him of to choose to demand the insurer among several jurisdictions. And even though this necessity of protection of the insured as weaker contractor even has been reaffirmed by the TJCE in Sentences like the one of 14 Julio 1983.

In this way, the demands against the insurer can be raised by him before the courts of the address of this one or before the address of the insurance holder or subscriber of the policy and it will be an insurer before the Courts of the State that knows the action against the first signer. General norms that are complemented with certain special norms for certain branches of the insurance, for which options are extended. Thus for example, in the insurances relative to buildings, coherently it is allowed to demand the insurer before the Court of the place where the harmful fact had taken place.

With respect to the right to apply, in the matter of insurances, at its moment the European legislator considered its exclusion of the general regime of applicable law marked by the Treatment of Rome more advisable and to dictate special dispositions that, except for certain exceptions indicated there, regulated them, and in whose virtue, in general, we were whereupon it corresponds to be applied to the contract the law of the State of the insured or in the case of the insurances of damages, the one of the State where he is located the risk, thus for example, like general norm (unless certain exceptions concur), the applicable Law before damages to people happened as a result of traffic accident it will be the one of the State in whose territory it has happened.

Such formulation criteria of the Law applicable to the insurance contract, we considered them, in certain way, logical. Nevertheless, it happens that once again has been committed the failure of leaving too many doors to the States members open so that they can vary such options, and is that in the Directives regulations are contained that qualify the States to extend the possibilities of election of the Law applicable to the contract. This possibility entails that the conflictual system of the Directives is an open system, allowing the national legislator to have a greater margin of performance so that the parts choose the law applicable to the contract. In this way, respecting the minimum established for the cases in which the elements of the contract are dispersed in several legal orderings, each State member will be able, when incorporating the Directive, to decide how to form the autonomy of the will. Decision that should be respected by the other States members. Thus concretely, for example, we were whereupon in Directive 2002/83/CE of the European Parliament and the Council of 5 November 2002 on the life insurance, in spite of initially expressing clearly that the applicable legislation it will be the legislation of the State member of the commitment, next opens the options when indicating that, however, when the Right of this State member allows it, the parts will be able to choose the legislation of other country.

Publicity, sale and information to the Consumer. - One of the circumstances that characterize unfortunately more the insuring sector is the great aggressiveness of its systems of sales, sustained through intense advertising campaigns, culminated through ruthless brokers, in most of the cases barely formed or semiprofessional, that use all type of deceits managing to sell a policy and to obtain for himself the corresponding commission.

These techniques of sale usually go accompanied of a total lack of information to the user, or even if it is possible to be said, in many cases of deceptive information, because multitude of promises are made that soon are not fulfilled, but that the user never will be able to demonstrate that they were made by lack of any written document that credits it. Few contracts are made solely after the consumer has been able really to know which type of insurance is more advisable to him and among these, to have been able comparatively to analyze the prices of the different companies.

And all it in a contractual business with more than evident complexities and difficulties of understanding for user, that it is formalized through a contract of adhesion prevailed by complicated clauses of difficult understanding, that offer variety of guarantees and covers often so ample, that soon, during the life of the policy, many insured, by simple ignorance of the small letter, do not protest to which they have right, with the consequent damage for their pocket or in other cases will fall without noticing in situations of sub-insurance or over-insurance. But the lack of information in the matter of insurances is not limited solely to the reach of the covers, but that even great part of the holders of an insurance even ignores the exclusions and limitations that impose the clauses of their contract.

With respect to the publicity, it is enough to say; that basically the insuring companies can carry out the publicity of their products in all the scope of the European Union with normality. However, the States members can demand that they respect those rules that regulates the form and the content of such publicity and that they are derived or from the communitarian acts adopted in the matter of publicity, or of the regulations adopted by the States members by reasons of general interest.

In which is referred to the information to the consumer, related to "life insurance", we must praise that finally the Directive 2002/83/CE of the European Parliament and the Council of 5 November 2002, it has established, with a debatable greater or smaller clarity, the minimums of information that must receive the holder of the policy, as much before the celebration of the contract like throughout its period of use.

Nevertheless, it cannot be said the same in relation to the "nonlife insurances", where although it has anticipated the obligation of information to the consumer related to the law applicable to the contract and treatment of the claims, however, unfortunately the obligation has not taken shape to facilitate a detailed information on the content and the reach of the subscribed contract.

But the main problem, in this aspect is that once again we have been whereupon that the flexibility with has been written up the communitarian norms, has allowed that some States of the European Union, with clear kindness on the part of the own communitarian institutions, have created internal norms that have as only aim manage to draw astutely the measures of protection established by the communitarian legislation, as for example has happened in Germany through the figure of the "Policy Model", that mainly has replaced the wished European general criterion that provides all the relevant information of the insurance contract with previous character to its formalization, without as we say, nothing has done face this doubtful normative figure.

On the other hand, as concrete critics on the information facilitated to the consumer analyzed on the basis of the experience, we can indicate the little transparency and inadequate information about the possibility that all user have to retract itself of the insurance contract during the period of reflection, as well as the informative deficiencies about means of extrajudicial claim and on the annexed insurances to other financial products, that although in many occasions are very advisable and the consumers would should be better informed on the matter, the certain thing is that has been detected the bad practice that supposes in many cases tying life insurances and multirisk to other financial products as for example mortgage credits, without saying the user that these insurances are not really obligatory and in many occasions doing even depending a hiring on the other and, in any case, settling down normally the direct collection on the part of the financial organizations as beneficiaries of the policies instead of the contracting consumer in case of concurrence of the wreck.

Another important source of conflict arises related to the bad practice that in many occasions have the insurers of not facilitating a complete unit of the contract before the signature of the same one, as it had to be done, and to postpone its delivery to the signature, happening that in many occasions they exist substantial differences between that definitive contract and the initially agreed (in many cases solely in a verbal form), or in other many occasions even occurs the circumstance that never is sent to the user the copy of the agreed conditions, with the consequent defenselessness that it supposes, having the user only a mere copy of the particular conditions.

With the purpose of finishing once and for all with this type of abusive practices of the insuring sector, besides obvious to improve the always necessary information to the consumer and the obligations towards it of the supplier, we think that it would be good for harnessing a greater professionalissation of the sector and in this sense, we considerate more suitable for the consumer the form of performance of the "mediators of insurances" that the one of the mere agents of the companies, whom in addition it would be necessary to control in greater measurement, regulating also the access of these last ones to the profession with the purpose of avoiding the present proliferation of mere commercial without any formation in the matter. In this line a coordination of all the state norms is fundamental on the professional requirements and the registries of people who accede to the activity.

In this line, very positive would be also the publication of a "Code of Good Practices of the Insuring Sector", as well as on the other hand, fixing the obligation for the insuring organizations of making reference in contracts and in the own branches in which such contracts become serious, in a visible place, in a clear and unequivocal form, the procedural body to which can resort in case of discrepancy, the form and way to make the complaints, the place established for it, terms, proceedings and the possibility of going to other instances in case the resolution were not favourable.

This "Code of Good Practices" in addition would be used to protect the consumer in front of another series of practices of diverse nature, initially difficult to regulate with concretion, but which through the experience have been detected, as are the disproportional increases of premiums without previous consent of the holder (that to our understanding more than a renovation really supposes an authentic novation of the contract), the breach of payment of the minimum of the indemnification on the side of the insurer, the difficulties presented by the insurers at the time of obtaining the certificate of accidents to be able to change of company, etc.

Term of resignation. - In relation to the mentioned term of resignation the failure of coming with a so flexible regulation is committed again, that even allows specifically the possibility that in determined cases, quite ample by the way, the State member can by its own initiative vary or suppress it, creating important differences in the levels of protection from a State to another one and being able to cause serious situations of non protection for the consumer in those cases where the right of resignation is limited.

Thus for example, concretely in relation to life insurance, in the Directive 2002/83/CE, is included specifically the possibility that the States members can, freely, decide not to apply the dispositions to contracts of an equal or inferior duration to six months or when, in regard to the situation of the holder of the insurance or the conditions in which the contract is celebrated, the holder does not need to benefit from this special protection.

Green Card system. - The civil responsibility insurance for the circulation of vehicles initially was regulated through three directives that mainly had by solely mission trying the accomplishment of a single market in the scope of the insurance of the automobile, leaving to a side the other questions, whose aim introduced the obligation that all the vehicles of the Community were covered by the responsibility insurance with thirds (obligatory insurance of the automobile), fixed the minimum amounts for this cover of insurance, gave the insurance certificate a general validity in all the communitarian territory, wanted to assure the compensation the victims accidents caused by vehicles non identified or without insurance by means of the establishment of organisms of intervention (guarantee funds) in all the State members, etc. (Directives 72/166/CE, 84/5/CE and 90/232/CE).

In which is related to the resolution of the accident wrecks caused in a State member different from the habitual one for parking, these three first Directives were based on the system denominated "Green Card" or "Borders Insurance", which is not more than a document of international insurances standardized that credits the existence of a cover according to the criteria of the obligatory insurance of vehicles in the visited State and that allows to eliminate a wreck in the State of residence of the harmed one, even in the case that the other part comes from another European State.
Nevertheless, the green card system, to which on the other hand little publicity has been given, did not solve all the difficulties funded by the harmed one at the time of vindicating its rights in front of a person and an insurer whom has its address in another State (foreign right, foreign language, procedure of different liquidation, etc), due to the system of "green card" it solely covered the victims when they were in their countries of origin, and not the liquidation of the wrecks of the people who temporarily was in a state member different from the one of residence like mere "visitor", and which have suffered damages or injuries caused by a registered vehicle and insured in a State member different from the State of residence of the harmed one.

All these problems were tried to solve through the Directive 2000/26/CE of the European Parliament and the Council of 16 May 2000, that established a right of direct action of the harmed one against the company of insurances of the person responsible of the wreck, as well as the obligation to designate representatives for the liquidation of wrecks and to create indemnification and information organisms whose function is to facilitate the indemnification of the accidents victims happened outside the own state of residence.

But the certain thing is that in spite of these measures, this type of wrecks continues being of complicated resolution for the affected user, in a cross border traffic that goes in clear increase. In these circumstances, one has demonstrated that the rating of the mentioned direct action forehead to the company really does not have the tried utility, because the user find the barrier of having to go normally to a judicial competition and a right that are absolutely not known to him, to contract the professional services of professionals (lawyers and solicitors) of the State where the wreck was caused and to go to oral views in the Courts of that State, with the expenses and annoyances that it entails. The Fourth Directive in addition is only applied to the liquidation of wrecks happened outside the State member of residence of the victim.

To it is linked the fact that the financial or administrative sanctions theoretically anticipated to guarantee that in a term of three months from the date in which the harmed one has made its complaint of indemnification this it is satisfied, really are not being imposed by the States, as well as the difficulties created by the own insuring company of the vehicle affected in the accident as a result of so good agreements between companies.

On the other hand, it follows in addition the urgent necessity of harmonizing the covers of the automobile insurances when exist victims in all the territory of the European Union.

The own European Commission is conscious of great part of all this problematic, until the point, that it has even been pronounced in several occasions, on the necessity of reviewing and modernizing the Directives on the insurance of the automobile, in fact in 1999 began a period of consultation with the participation of national authorities, representing authorities of the sector, and representatives of the users and victims, that was completed with a Resolution of the Own European Parliament in 2001 that recommended the adoption of a fifth directive on the insurance of the automobile.

Nevertheless, we were whereupon in spite of such actions, the real thing is that at the moment the hoped fifth Director has not been dictated yet, which simplifies and updates the existing regulation and that once and for all allows the liquidation of all the accidents independently of the State of residence of the victim. In fact, the real thing is that the Proposal of the fifth published Directive, continues leaving important emptiness, as are continuing without contemplating the cases in which the responsibility has not been determined, that is to say, in which the insurer rejects its responsibility or the amount of the indemnification, aspect that although evidently as the European legislator says is competition of the ordinary courts, not avoid that communitarian mechanisms of extrajudicial resolution could be created that also solve this type of conflicts, and in this sense once again we think that the arbitration would be the better option.

Creation of a Registry of Life Insurances. - One of the main problems that affect the field of the life insurances is in fact so simple, because it consists on which the beneficiaries of such do not get to receive them to not know their existence.

Problematic, which would have easy solution by means of the creation of an European registry of life insurances in order to, in case of death, the beneficiaries could know the existence of these policies. Concretely this registry would reflect all life insurances that is titular a person, who are the beneficiaries, the quantities and the company with which has this insurance contracted, independently of the State of origin of the same ones.

This registry finds a clear precedent in which has been working for a long time in the European Union with respect to the securing of vehicles. At particular level in States members as the Spanish already is being raised his future creation.

In this way it would be avoided that the beneficiaries must discover by their own the existence of the insurances, and even would be obtained that the own user, the holder, has knowledge that certain products, mainly banking products, entail the subscription of a life insurance (cards of purchase on credit of great surfaces, the insurances to all risk and third of vehicles, certain special policies for workers, special labour contracts, consumer credits, trips, use of public transport, etc.). Then, even though some of these insurances only cover during a limited period of time, in other cases are insurances that continue while the holder of the main product is had.

The mentioned registry must be in direct connection with the civil registry of deaths, in order that do not have to be the heirs who communicate the deaths to the insuring organizations, but that is internally carried out from a registry to another one, and that after it is the own administration in charge of the registry the one that communicates it to the insurers of that the causant is holder of policies, and thus, occurring an opportune upset to the present reality, in addition the legal obligation would settle down of which they are the own Insuring Companies those that have the obligation of notifying to the possible beneficiaries the existence of the policies so that these can exercise their rights with respect to the capital assured for such contingency, and it , with the intrinsic legal determination that the terms of prescription of the actions to protest begin to count from such offer of actions becomes true.

Once demonstrated the effectiveness of this new system, it could even proceed to the extension of the registry to other financial products like the banking deposits, participation in investment funds, etc.

Solvency and liquidation of the Companies. - As much the solvency control of the companies as the measures of cleaning and the procedures of liquidation are aspects that appear regulated at European level by several communitarian Directives, but is absolutely necessary that the level of established control will be more homogenous and less flexible and it does not leave into the hands of the States so many questions, for example, we find that, although the cleaning and liquidation of the insuring companies is regulated through the Directive 2002/12/CE and Directive 2002/13/CE, in them is reserved the initiative of these measures and their procedures of liquidation to the authority of control of the State member of origin, which causes important differences from a State to another one, causing the existence of different levels of protection and big difficulties of understanding for the consumer who evidently cannot know how it is the regulation in each State member. In this sense, still against the opinion of the own European Commission, we understand that it is necessary to harmonize aspects such the different systems of privileged credits existing in the different States members and to protect the consumer front to others.

In another side, we find a legal emptiness of protection related to the communitarian branches of insurance agencies with social address in third countries and the resident creditors in the Community, since the communitarian Directors do not regulate the effects of the cleaning measures and procedures of liquidation in relation to third countries.

To obtain a great and better defense of the consumer, the creation of an European Registry on the side of the communitarian authorities related to the situation of solvency of the insuring organizations would be also interesting, which operates intracommunitarianly, that could be consulted freely for everybody and which simultaneously contributed to guarantee good practices on the side of the organizations. It would not only be beneficial for the user, but in addition it would avoid that false rumours on the solvency of an organization can harm this one.

Consumer participation. – Till now, the consumer participation in the scope of the insuring sector has been practically null, we think that this important deficit must be solved offering to the European consumer, through their Associations, the opportunity to participate as much in the administrative mechanisms of control as in the established systems of extrajudicial resolution. In this way, it is necessary to establish the participation of the Consumer Associations in the "European Committee of Insurance Supervisors and Retirement Pensions", as all the "Committees of Financial Services" operating at the moment.

Procedures of Extrajudicial Claim. - In the matter of insurances, the European legislation, as in the other fields of the financial consumer, it insists with good criterion on urging the European States to adopt procedures of extrajudicial resolution for all those conflicts that arise between consumer and supplier, but, once again, does it in a too ambiguous, non concrete and generic form. Without, in spite of having declared in repeated occasions timidly to its favour, once and for all it is made a mention expresses and determined in favour of the Consumer Arbitration System as the best and more effective means of extrajudicial resolution of conflicts, and even though when it is the only means of extrajudicial resolution of conflicts that really answers with guarantees to the principles of independence, transparency, contradiction, effectiveness, legality, freedom and representation, that the European Union recommends for all existing body or that can be created and that could give true guarantees and confidence to consumers.

With this so ambiguous regulation what it is happening it is that they are been considered as good all type of extrajudicial claim systems, whatever they are, and although in principle the existence of a diversity of mechanisms and forms of protection of the consumer seems acceptable, without for that reason they had to undergo the interests of these, whenever there was certain harmony in the levels of protection of the consumers and which made that these mechanisms exist in all the UE, that had a high degree of diffusion between the communitarian consumers and enough effectiveness to be used easily in the cross border conflicts, the certain thing is that it is stated that is necessary that common criteria more concrete exist to guarantee the effective defense of the consumer.

Seeing these undeniable critics of the present systems of extrajudicial defense of the insured that act rather as mediators or even as simple services of marketing, we think that it must take place a deep reform that once and for all establishes procedures and bodies that really contribute to the defense of the consumer. With this aim, and as has reiterated the European Commission in repeated occasions, greater transparency and participation of the consumers in the processes in which at the moment the controversies are dissolved (Ombudsman, Insured Defender...), for it would be advisable that in all the States of the European Union will obligatorily settle down as extrajudicial means of resolution of conflicts a system of bodies with the participation in its election of the three implied sectors: administration, enterprise and consumer, and without considering enough the simple establishment of a service or department of attention to the client.

And all it, because although they do not dare to ratify the arbitration system as only means of extrajudicial resolution, which cannot be admitted is that the European Commission compares all the systems of defense and admits, with its generic regulation as valid, systems of Defense which they are not such and that evidently they must be reformed.

And it is that related to the arbitration, historically the insuring organizations have refused to adhere totally to the Consumer Arbitration System. For example, in Spain, in which concerns the insuring sector, for some time has adhered to the system UNESPA, which although should supposed a great advance for the consumers in the sphere corresponding to its defense, nevertheless, given the mentioned freedom of the system for the insurers and since they must still adhere each one of them individually, the adhesion is being relative. In fact, in many occasions, mainly when important questions are explained, the insurers assigned to UNESPA individually are not accepting the adhesion to the arbitration done by this one. In the case of insuring the refusal to the adhesion it is in addition in our opinion in certain way contradictory, because while by a side they are opposing multiple objections to the complete adhesion to the arbitration system in the conflicts with the consumer, on the other hand we were whereupon, in the conflicts that happened among them they admit it without the inconvenient minor. In this sense, we remember that the great part of the Spanish insuring companies are assigned to so mentioned agreements that joint them to an own arbitration system of resolution of great part of the conflicts arisen among them. Thus we intuited that they do not adhere only by objections to the arbitration systems, but among other reasons, mainly because therefore many claims are avoided that in case of being adhered the consumer would not doubt in urging, but that they know that by the judicial way, with its high costs, slowness and complications, they are not going to do it.

In this aspect, to our understanding, Consumer Associations, as the own administrations we must fight for this adhesion of the financial organizations to the arbitration system, and we think that the best way to obtain that massive adhesion of the financial organizations, is causing that is carried out of in a progressive way, beginning with an adhesion limited in the quantities and matters, that gradually is going to increase in number and importance of the questions to solve.

Finally, with respect to the administrative services of supervision and claim management (Main Directorate of Insurances in Spain, German Federal Agency of Financial Supervision, etc.), to ours to understand, by the developed experience, these beings are not the more suitable system of conflicts resolution, among other things because the conception of these bodies separates of the so repeated concept of collective and participative body that the own European Commission even considers as more effective and suitable, lacking consequently of any active participation of the consumer in them.

In conclusion, it is sure that a policy of consumers in the European scope must be the prolongation of the inner market, because is evident that if the single market works well it will stimulate the confidence of the consumers, for that reason is positive the intense regulation that from the enterprise point of view has been given of the insurance sector, nevertheless, not for that reason we can forget, as it has done, that a specific legislative policy of protection of the consumers is necessary also, that in addition should be the most homogenous possible in all the States, till obtaining an uniform system in all the communitarian territory that guarantee identical protection to the consumer independently of the state legislation that is applied to it.

That protective norm of the consumer must be something more than simple rules of common minimums of merely orientation character that leaves practically everything into the hands of the State members, but must be a clear and concrete norm, that it delimits with exactitude the margins of protection of the consumer without opening to the States possible ways of escape at the time of its application.