Abstract: The placement of so-called “pure” unit linked policies among financial products and the consequent application of articles 21 and 23 TUF (consolidated law on finance), depends on the absence of the insurance nature of the contract. Therefore, whenever the Insurance Company does not guarantee the restitution or reimbursement of the invested premiums upon the death of insured, these policies are financial and not insurance products. This is because the amount of the premium is not certain and depends on the outcome of the Fund’s investments.
The Court of Rome is again concerned with the question of the insurance or financial nature of unit linked policies and, in upholding the request for nullity of insurance contracts underwritten by the claimant, has noted that – regardless of the insurance or financial nature of the intermediary – both articles 21 and 23 TUF are applicable whenever there is no guarantee of the capital being refunded upon the occurrence of the insured event.
In other words, the Court has held that the insurance function of policies is excluded when the performance of the product does not depend on – as in the case of “pure” unit linked policies – the time factor but rather on market dynamics and the performance of investments. In short, the distinction between insurance and financial products would not appear to depend on the nature of the intermediary but, on the placement of risk borne by one or other of the contractual parties.
From the financial and non-insurance nature of the so-called “pure” unit linked policies, there follows the need for a framework contract (contratto quadro) to regulate the placement of financial products with the underwriting client. In the absence of such contract, any investment transactions carried out on the basis of the “pure” unit linked policies will be deemed void.
In the case of policies considered null and void, there is no justification for a premium payment upon subscription. Consequently, under article 2033 civil code, the policyholder is entitled to the full repayment of any premiums paid.
Link to the article published in the magazine “Diritto del Risparmio” (Italian only): https://www.dirittodelrisparmio.it/2025/01/09/nullita-delle-polizze-unit-linked-per-violazione-degli-artt-art-21-e-23-tuf/