Abstract

Allocation fees applied by insurers in unit-linked life insurance contracts are very similar to liquidation fees as regards their purpose and effect. However, they are not collected upon premature termination of the contractual relationship by the consumer, but from the beginning of the contractual relationship, sometimes only during the first years of the contract. If contractual terms providing for such fees are qualified as unfair, it may be problematic for the consumer to pursue claims related to the collection of such fees as a period of time longer than the limitation period may elapse between the collection of these fees and the time when the consumer seeks their reimbursement. In its resolution of 13 January 2022, III CZP 61/22, the Supreme Court seeks to prevent such troubles by linking the commencement of the limitation period for consumer claims to the time when the consumer becomes aware, or reasonably could have become aware, of the unfair nature of the contractual terms. This position is in line with the requirements in CJEU case law for the commencement of the limitation period for consumer claims arising from the use of unfair terms in consumer contracts. However, the assumption that consumer claims arising from collection of allocation fees under unit-linked contracts are based on the provisions on undue performance is questionable. The mechanisms used by insurers to charge allocation fees seem to exclude such qualification.