# C_2005019EN.01001601.xml

| 22.1.2005 | EN | Official Journal of the European Union | C 19/16 |
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22.1.2005

EN

Official Journal of the European Union

C 19/16

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Action brought on 6 December 2004 by the Commission of the European Communities against the Kingdom of Spain

(Case C-501/04)

(2005/C 19/31)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 6 December 2004, by the Commission of the European Communities, represented by Enrico Traversa, Legal Adviser, and Ramón Vidal Puig, of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | declare that by giving policyholders the option of cancelling contracts in the event of transfer of its portfolio under the right of establishment or the freedom to provide services where the transferor and/or transferee is not an insurance undertaking with its head office in Spain, but not where the transfer is between Spanish undertakings, the Kingdom of Spain has failed to fulfil its obligations under






  — | Article 12(6) of Council Directive 92/49/EEC (1) of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC; |
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declare that by giving policyholders the option of cancelling contracts in the event of transfer of its portfolio under the right of establishment or the freedom to provide services where the transferor and/or transferee is not an insurance undertaking with its head office in Spain, but not where the transfer is between Spanish undertakings, the Kingdom of Spain has failed to fulfil its obligations under

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Article 12(6) of Council Directive 92/49/EEC (1) of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC;

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| — | Article 14(5) of Directive 2002/83/EC (2) of the European Parliament and of the Council of 5 November 2002 concerning life assurance; |
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Article 14(5) of Directive 2002/83/EC (2) of the European Parliament and of the Council of 5 November 2002 concerning life assurance;

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| — | order Kingdom of Spain to pay the costs. |
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order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Although Article 12(6) of Directive 92/49 and Article 14(5) of Directive 2002/83 give the Member States the authority to grant the option of cancelling contracts, a Member State breaches those provisions where, when granting that option, it discriminates, directly or indirectly, between insurance undertakings with their head office in the Member State in question and undertakings of other Member States which are operating in that Member State under the right of establishment or the freedom to provide services.

The Spanish legislation is discriminatory because it provides for different and more favourable treatment for Spanish insurance undertakings than for insurance undertakings from other Member States as regards the option of cancellation and that difference in treatment is not based on objective differences between the situations contemplated.

The difference in treatment is not justified by considerations relating to consumer protection.

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(1)  OJ L 228 of 11.8.1992.

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(2)  OJ L 345 of 19.12.2002.

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