The Milan Court has recently rejected a claim for damages in excess of Euro 14 million made by a group of investors against an insurance company and a Luxembourg investment fund manager, within the ambit of litigation related to unit-linked policies. 

Federico Banti and Francesco Berardi, acting for the Luxembourg investment fund manager, obtained the rejection of the claim basing the defence on the structure adopted for the investment itself. The investors had in fact made use of a trust company, through which they had established and implemented a contractual relationship. 

The Milan Court held that in such cases the fulfilment of the disclosure requirements is always to be assessed in relation to the trust and not also in relation to the trustees that, having granted a mandate without powers of representation to the trust, remain legally extraneous to the pre-contractual stage and to the conclusion of the contract.
The Court of Milan also excluded – accepting the line of defence prepared by Osborne Clarke – that the limits to investment of internal funds linked to unit-linked policies as provided by Italian law (which limits were relied upon by the plaintiffs in support of the claim of that the investment was null) were to be applied to a foreign  insurance company operating in Italy, owing to the principle of home country control; a Community principle enshrined in article 10 of Directive 2002/83/EC of the European Parliament concerning life assurance, according to which the financial supervision of insurance companies is exercised by the Member State in which the company has its registered office.

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