Opinion of the Advocate General — ECLI:EU:C:2016:844
Date: 2016-11-09
Language of the case: Italian
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Third Chamber), 27 April 2017 1. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Direct insurance other than life insurance — Directive 92/49 — Prior official authorisation — Conditions for granting — Good repute of the directors of the undertaking concerned — Verification of that condition by the competent authorities of the home Member State only (Council Directive 92/49, Recitals 1, 5 and 6 and Arts 4, 6 and 14) 2. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Direct insurance other than life insurance — Directive 92/49 — Emergency power of Member States to take appropriate measures to prevent irregularities within their territories — Authority of a Member State taking emergency measure, as against an undertaking providing direct insurance operating in its territory, prohibiting the conclusion of new contracts in that territory — Measure based on failure to comply with a subjective precondition laid down for the purpose of the issue of authorisation to engage in insurance business — Not permissible — Adoption of such a measure on the basis of a real and imminent danger that irregularities will occur to the detriment of the interests of the insured persons or other persons who may benefit from the insurance cover taken out — Lawfulness (Council Directive 92/49, Art. 40(6)) 1. In that regard, it is clear, in the first place, from recitals 1, 5 and 6 of that directive that the latter, which aims to complete the internal market in the sector of direct insurance other than life assurance, is based on two principles. Those principles are, first, the creation of a single authorisation which, once granted, allows insurance undertakings to carry on business throughout the European Union and, secondly, the principle of supervision of insurance undertakings by the home Member State. In pursuit of that objective, Directive 92/49 provides, first, in Article 4 thereof, that a single authorisation may be sought only from the authorities of the home Member State, Article 6 of that directive laying down the conditions for granting such authorisation, including that of the good repute of the directors of the undertaking concerned. Moreover, it is clear from Article 14 of that directive that it is also for the home Member State to withdraw the authorisation granted to an insurance undertaking which no longer fulfils the conditions for admission or fails seriously in its obligations under the regulations to which it is subject. It follows that only the competent authorities of the home Member State, excluding those of other Member States, can ascertain whether an insurance undertaking satisfies the requirement that its directors are of good repute. (see paras 42-44) 2. Council Directive 92/49/EEC 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 (third non-life insurance Directive) and, in particular, Article 40(6) thereof, must be interpreted as precluding the supervisory authorities of a Member State from taking emergency measures, as against an undertaking providing direct insurance other than life assurance operating in its territory under the freedom to provide services, in order to protect the interests of the insured persons and other persons who may benefit from the insurance cover taken out, such as prohibiting it from concluding new insurance contracts in that territory, on the grounds of the failure, whether pre-existing or otherwise, assessed discretionarily, to satisfy a subjective precondition laid down for the purpose of the issue of authorisation to engage in insurance business, such as the requirement of good repute. However, that directive does not preclude that Member State, in exercising the prerogatives it has in emergency situations, from establishing whether certain inadequacies or uncertainties relating to the insurance undertaking concerned present a real and imminent danger that irregularities will occur to the detriment of the interests of the insured persons or other persons who may benefit from the insurance cover taken out and, if so, from taking appropriate measures immediately, such as, where appropriate, prohibiting the conclusion of new contracts in its territory. However, to the extent that, as was found in paragraph 42 of this judgment, that directive gives primacy to the principle of supervision of insurance undertakings by the home Member State, the Member State of the provision of services may take, in an emergency, only protective measures. Those measures apply, therefore, only pending a decision by the competent authorities of the home Member State, drawing the conclusions, in the light of the conditions for granting the authorisation, in particular relating to good repute, from the evidence identified by the Member State of the provision of services, as required by the principle of legal certainty which forms part of the EU legal order. (see paras 52, 53, operative part)