The essentials on proving the duty to advise in insurance
- Since 31 December 2025, ACPR (Autorité de contrôle prudentiel et de résolution, the French banking and insurance supervisor) recommendation 2024-R-03 applies to all insurance products, and no longer only to life insurance. It requires the client's demands and needs to be collected through clear questions, the advice to be justified in writing and in a specific way, and all of this to be demonstrable for the whole term of the contract and beyond.
- The burden of proof rests on the distributor. It is for the distributor to show that it collected the client's needs and justified its advice, not for the client or the inspector to show the opposite.
- Oral exchanges are not enough. In its decision of 13 May 2026 against Société Générale, acting as an insurance intermediary (reprimand and €20 million), the ACPR Enforcement Committee (Commission des sanctions) writes that "the mere allegation that an oral exchange took place" is not sufficient to satisfy article L. 521-4.
- But the call is what brings the written record down. In the decisions against brokers selling at a distance, inspectors listened to 20 to 30 calls and compared them with the advice forms (fiches de conseil): needs rated on items that were never discussed, the most expensive option assigned without justification in 22 subscriptions out of 24.
- A defensible file comes down to four documents: the written demands-and-needs assessment, the justified advice provided before subscription, the unaltered recording of the call, and the record of your own internal control. The first three often exist. The fourth is almost always missing.
- Call analysis equips the fourth document, not the other three: checking on every call that what the written record says matches what was said, and keeping a record of each check.
Scope: insurance distribution in France. This article is intended for insurers and insurance intermediaries, brokers and agents, who distribute contracts in France, in particular by telephone. If you sell in another regulated sector, the obligations and the supervisory authorities are different; our article on sales compliance by sector gives an overview. What follows describes the framework applicable on 29 September 2026, based on the texts and decisions published by the ACPR. Quotations from French regulatory texts and decisions are our own translations. This article does not constitute legal advice. To assess a particular situation, consult your legal department or a lawyer specialising in insurance law.
What recommendation 2024-R-03 requires you to be able to prove
Recommendation 2024-R-03 of 21 November 2024 concerns the collection of client information for the performance of the duty to advise. Since 31 December 2025, it has replaced recommendation 2013-R-01, which only covered life insurance. It applies to all distributors, insurers and intermediaries alike, including those operating in France under the freedom to provide services, and to all individual or group insurance products, except large risks and compulsory group contracts.
It does not create the obligation to advise, which comes from article L. 521-4 of the French Insurance Code (Code des assurances), the provision that transposes the duty to advise of the EU Insurance Distribution Directive (IDD). It sets out how the ACPR expects that obligation to be carried out, and therefore what it will look at during an inspection. The expectations that produce documents can be summarised as follows.
| What the recommendation requires | The document that must result from it |
|---|---|
| Inform the client that the information is collected in their interest and that complete and truthful information is a condition for appropriate advice | A record of this information, in writing or in the call |
| Collect the information through clear, precise and understandable questions, for example by means of a decision tree | The questionnaire or tree used, and the client's answers |
| Collect the demands and needs, including the desired scope and level of cover, and the contracts already held | An assessment specific to the client, not a pre-filled form |
| Identify inconsistent or incomplete answers, including through automatic mechanisms when the collection is done at a distance | A record of how the inconsistency was handled |
| Check consistency with the product's target market before formalising the advice | The comparison between the profile and the target market |
| Set out in writing, on a durable medium and in a specific way, the reasons for the advice | The justified advice form, provided before subscription |
| Get back in touch during the life of the contract at an interval suited to the product | A record of the follow-up contacts and of the advice given on those occasions |
| Demonstrate the retention and accessibility of all of the above, for the whole term of the contract and beyond | Retrievable archiving, contract by contract |
The last point is the one from which everything else follows. The ACPR "reminds" distributors that they should be able to "demonstrate the retention of the information collected and its accessibility, and the provision to the policyholder or member of the advice given and the reasons for it", and to record these elements "for the whole term of the contract and beyond, in accordance with the rules on limitation periods". The verb "remind" is not incidental: it signals an obligation that already exists, not a new good practice.
The recommendation, however, says nothing about the telephone call itself, listening back to it, or internal control. These points come from elsewhere, and that is where distance selling is decided.
Oral exchanges are not enough: what the May 2026 decision settled
On 13 May 2026, the ACPR Enforcement Committee issued a reprimand and a €20 million penalty, published by name for five years, against Société Générale, acting as an insurance intermediary. The on-site inspection had lasted almost eight months, from October 2023 to May 2024. The decision came two years later.
The complaints all concern proof. The tool used by the advisors made no provision for collecting demands and needs. The advice document provided was "a standard, fully pre-filled document". Out of a sample of 30 contracts taken out by students in five branches, 24 had been taken out even though the product was not appropriate to their profile.
The defence argued that the advice was given through oral exchanges with the client. The Committee replied that the collection of needs and the justification of the advice "must necessarily be formalised in writing", and that the mere allegation of an oral exchange is not sufficient. It added that standardised wording, not supplemented by information specific to the client, does not make it possible to assess suitability.
Two practical consequences follow. First, a telephone conversation, even a recorded one, does not replace the advice form. Second, a form filled with generic wording is hardly better than no form at all. Proof of advice is a written record specific to that particular client.
What inspectors do with recordings
If the written record is the proof, what is the recording for? The decisions against brokers selling at a distance answer unambiguously: it is used to check that the written record is true.
In the decision of 28 February 2020 (procedure 2019-05), the inspection team listened to around twenty recordings of telephone canvassing. In 22 of the 24 subscriptions analysed, the most expensive option of the contract had been assigned to the client, without the reasons for that choice having been mentioned during the call. The information and advice form was only sent after subscription. The company argued that the sample was too small to be conclusive. The Committee replied that this sample, "although small, nonetheless illustrates the methods and practices of this intermediary".
The same broker was inspected a second time. In the decision of 17 October 2022 against Résurgence Assurances, formerly Viva Conseil, the team listened to the recordings of 30 sales. In 53% of them, no information on demands and needs had been formalised. Above all, several advice forms showed a needs rating on a health cover item even though the prospect had not been asked about that item during the call. The written record existed. Listening showed that it corresponded to nothing.
This second decision contains another lesson. After the first penalty, the company had taken corrective measures, including a "report on call recordings" and a training programme for telesales staff. The Committee found that the breaches had "for the most part, persisted", even though the necessary measures "did not require particularly significant investment". The company was banned from intermediation for seven years, and its two executives were penalised personally.
The ACPR had in fact made its position clear. In its March 2022 Review of telephone canvassing, it wrote that professionals need to include in their sales monitoring arrangements "listening back to and analysing recordings of telephone calls relating to subscriptions".
The situation is therefore asymmetrical. The inspector listens to 20 or 30 calls of their own choosing, and that is enough to establish a breach. The distributor, for its part, holds two years of mandatory recordings, the vast majority of which nobody has ever listened to.
The four documents of a defensible file
What is called a defensible file is not a single document. It is a set of documents which, for a given contract, are consistent with one another. An inspector who pulls one must be able to find the other three, and they must tell the same story.
1. The demands-and-needs assessment, written and specific
This is the document that the May 2026 decision places at the centre. It must contain that particular client's answers to the questions asked, not a pre-filled profile. If a decision tree is used, the path it followed for that client must be retrievable. If the collection is done by telephone, what the advisor enters must match what the client answered.
2. The justified advice, provided before subscription
The advice form sets out how the contract, the cover and the level of cover meet the client's situation. The recommendation specifies that this explanation must be "specific". The date it is provided matters as much as its content: a form sent after subscription was upheld as a complaint in 2020.
3. The unaltered recording of the call
In distance selling, article L. 112-2-2 of the French Insurance Code requires all telephone communications taking place before the contract is concluded to be recorded in full, kept for two years and made traceable, with the client informed of the recording. Its implementing rules require the recordings to be kept under conditions that guarantee their integrity, to be available for listening and export without the original being alterable, and to be provided to the ACPR on request. The same article places the burden of proving compliance with its information requirements on the insurer or intermediary. Our article on the law of 11 August 2026 explains how this regime fits with the new consent to canvassing.
Three retention periods coexist, and they must not be confused. Two years for the recording of canvassing calls. The term of the contract plus the limitation period for the duty-to-advise documents, the ordinary limitation period being five years, as the CNIL points out. And a much shorter period for recordings used for training or evaluation purposes. The CNIL also recommends separating, physically or logically, the database used as evidence from the one used for quality.
4. The record of your own internal control
This is the document that is almost always missing, and it is the one that the 2020 and 2022 decisions make decisive. It answers three questions: which calls did you listen back to, what did you find, and what did you do about the discrepancies? A control system that exists on paper but leaves no trace of being carried out cannot be told apart, during an inspection, from a system that does not exist.
A credible control record contains, for each call checked: the evaluation grid applied, the finding criterion by criterion, the passage of the call on which each finding is based, the author and date of each correction made by a human, and the follow-up given. It must also show that the calls checked were not selected to be favourable.
The test that matters: does the written record say what the call shows?
Since the recording is used to compare the written record with what was said, the useful internal control is a consistency check. It does not consist in judging whether the advisor was convincing, but in checking facts that can be observed in the call and comparing them with the form.
| What is checked in the call | The discrepancy that constitutes a risk |
|---|---|
| Did the advisor ask a question about each item rated in the form? | A rating on an item never discussed, a complaint upheld in 2022 |
| Did the client express a need that justifies the option proposed? | The top option assigned without justification, a complaint upheld in 2020 |
| Did the advisor ask which contracts the client already holds? | A risk of overlapping insurance left unaddressed |
| Were the reasons for the advice expressed using elements specific to the client? | Standard justification, criticised in 2026 |
| Was the client informed of the recording and of the commercial nature of the call? | An information breach from the opening of the call |
| Was a contradictory answer from the client noted and clarified? | An inconsistency left as it was in the assessment |
| Did the client express a refusal or a hesitation followed by further pressing? | A questionable commercial practice |
Each row of this table is phrased in terms of what was said or done during the exchange. None requires guessing what the client was thinking. This is a condition for the control to be verifiable by a third party, and therefore defensible: an inspector who listens back to the passage must reach the same finding.
Three months later, in front of the inspector
The conduct of an on-site inspection is governed by the ACPR's charter for the conduct of an inspection mission. Inspectors can require any documents to be provided, whatever the medium, obtain a usable electronic copy, access IT tools and data, and interview any member of staff. The report is adversarial: the entity has, in principle, at least fifteen days to respond to the draft.
In practice, the team draws a sample of contracts and asks, for each one, for the related documents. For each contract in the sample, a well-prepared distributor should be able to produce within a few hours:
- the dated demands-and-needs assessment;
- the justified advice form and proof of the date it was provided;
- the unaltered recording of the pre-contractual calls;
- the result of the internal control on that call if it was checked, with any corrections and their justification;
- proof of the coverage of the internal control: what share of the calls in the period was checked, and how the calls not checked were excluded.
The fifth point is what makes the difference between a credible internal control and token listening. A control plan that listens to three calls per advisor per month, chosen by the manager, says nothing about the remaining 97%. The inspector, for their part, may well draw precisely from that 97%.
How Raisetalk equips the fourth document
Raisetalk analyses recorded calls and evaluates them against a grid that you define. Applied to the duty to advise, this supports the consistency check described above, on every call rather than on a sample.
Every call goes through the same grid. The criteria of your consistency check become the criteria of an evaluation grid. Every imported call is evaluated on all the criteria, with a justification for each. Good practice is to test and tune the grid on a batch of calls you already know before deploying it: this is the subject of our article on tuning an evaluation grid.
Every finding points back to the passage of the call. The analysis links each criterion to the periods of the recording on which it is based, which can be replayed directly from the evaluation. An internal controller can thus check a finding in a few seconds, without listening to the whole call again.
The automatic reading remains, the human decision is added. When a manager or controller corrects a criterion, the value produced by the analysis is kept in the database, the correction requires a comment, and the author, their role and the date are recorded. The complete state of the evaluation before each intervention is kept in a version history that can be consulted. The details are in our article on modifying an evaluation.
The advisor can contest, and the arbitration leaves a record. An advisor can contest a criterion by proposing another value and giving reasons for it. The manager approves or rejects, and a rejection requires a comment. See the advisor's right of reply.
Nothing is excluded without a reason. An evaluation that should not count, for example a call that is not a sale, can be deactivated with a mandatory reason, then restored; each step is versioned. See deactivating an evaluation without losing it. Likewise, with the telephony connectors, calls excluded at import, for example because they are too short or have no recording, are logged with their reason. This is what makes it possible to answer the inspector's fifth point: what was not checked, and why.
A new grid does not rewrite the past. If the grid changes, a call can be re-evaluated with the new version without the original evaluation being modified: the two coexist, and you know which one was used on which date.
Discrepancies surface without waiting for the next committee. An alert rule can be triggered when a sensitive criterion fails, for example a needs rating with no question asked, and its history kept in the alert journal.
The models used are known. For each conversation, Raisetalk records the transcription model and the analysis model that were used. If the question "with which tool was this finding produced?" arises, the answer exists.
What Raisetalk does not do for you
A call analysis tool is not a compliance file, and presenting it as one would expose precisely those who use it. Here is what you need to know before integrating it into your arrangements.
It produces neither the demands-and-needs assessment nor the advice form. These two documents remain those of your subscription tool. Call analysis checks that they are consistent with the exchange; it does not replace them, and the May 2026 decision in any case rules out relying on what was said orally.
It is not your reference archive of recordings. The unaltered original required in distance selling remains the one held by your recording system or your telephony provider. Raisetalk makes a working copy of it, whose retention period you set yourself, separately for the audio and for the transcription. This is also what makes it possible to respect the separation between the evidence database and the quality database recommended by the CNIL.
It does not yet assemble the file in one click. The elements exist and can be consulted in the application: evaluation, justifications, replayable passages, version history, contestations. The PDF export of a conversation is in beta and does not include the modification history. For an inspection, this gathering is therefore done today from the application, not from a single export.
It does not provide a ready-to-use "duty to advise" grid. Each distributor has its own products, target market and forms. The grid is built from your own documents, ideally with your compliance team, then tuned on your calls before being deployed.
It does not make legal judgements. A failed criterion signals a discrepancy to be examined, not an established breach. The legal assessment remains that of your compliance function, which is why every automatic finding can be corrected, commented on and contested.
Start with the consistency test on one month of calls. Take the three or four rows of the consistency table that are most exposed for your products, phrase them as observable criteria, and apply them to all the subscription calls of one month. You will then know what an inspector would find by drawing thirty calls at random, before they do.
Key terms
- Duty to advise: the obligation of the insurance distributor, laid down in article L. 521-4 of the French Insurance Code, to specify in writing the client's demands and needs and to advise them on a consistent contract, giving reasons for that advice
- Recommendation 2024-R-03: ACPR text of 21 November 2024, applicable since 31 December 2025, which sets out good practice for collecting information and formalising advice for all insurance products
- Advice form: a document provided to the client before subscription, setting out in a specific way the reasons for the advice given
- Defensible file: a set of mutually consistent documents that a distributor can produce to demonstrate, contract by contract, that it has fulfilled its duty to advise
- Consistency check: verification that what the demands-and-needs assessment and the advice form say matches what was actually said during the call
- Burden of proof: the obligation, for the party that bears it, to demonstrate a fact; in matters of duty to advise, it rests on the distributor
Frequently asked questions
How do you prove the duty to advise when it is delivered by telephone?
In writing. The ACPR Enforcement Committee ruled in May 2026 that the collection of needs and the justification of the advice must necessarily be formalised in writing, and that an alleged oral exchange is not sufficient. The call recording does not replace this written record: it makes it possible to check that the written record matches what was said, which is what ACPR inspectors do when they listen back to calls.
What does ACPR recommendation 2024-R-03 change for brokers?
It extends to all insurance products, except large risks and compulsory group contracts, collection and formalisation requirements that previously applied only to life insurance. It stresses an assessment specific to the client, written and specific justification of the advice, advice that continues during the life of the contract, and the ability to demonstrate all of this until the end of the limitation period.
How long must call recordings be kept in insurance?
In distance selling, two years for pre-contractual telephone communications, under article L. 112-2-2 of the French Insurance Code. The duty-to-advise documents, on the other hand, are kept for the whole term of the contract and beyond, according to the rules on limitation periods. These two periods are distinct, and the CNIL recommends separating the evidence database from the one used for quality and training.
How many calls does the ACPR listen to during an inspection?
The published decisions mention samples of 20 to 30 calls or contracts. The Enforcement Committee has ruled that a sample, even a small one, is enough to illustrate the methods and practices of an intermediary. A distributor therefore cannot rely on the size of the sample to challenge the findings.
Is automatic call analysis admissible proof?
It is not proof of the advice, which remains the written record provided to the client. It does, however, constitute a record that the internal control was carried out, provided that each finding is linked to a verifiable passage of the call, that human corrections are dated and justified, and that the calls not checked are accounted for. This is what makes it possible to show that a listening-back process actually worked.
Getting started
Your call recordings already exist, and they will be one of the first things an inspector asks for. The question is who will listen to them first. To see how Raisetalk applies a control grid to your own subscription calls, discover our approach to sales compliance or let's talk.