Opinion of the Advocate General — ECLI:EU:C:2004:367
Date: 2004-06-10
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the Judgment Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance – Directives 73/239 and 79/267 – Obligation on insurance undertakings to establish sufficient technical provisions and an adequate solvency margin for their entire business – National legislation granting salary claims a priority in respect of assets representing technical provisions which takes precedence over the priority of insurance claims – Compatibility with Community rules (Council Directives 73/239, Arts 15 and 16, and 79/267, Arts 17 and 18) Articles 15 and 16 of First Directive 73/239 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance and Articles 17 and 18 of First Directive 79/267 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance, which oblige insurance undertakings to establish sufficient technical provisions and an adequate solvency margin for their entire insurance business, do not preclude national legislation under which, if an insurance company is the subject of insolvency proceedings, is put into liquidation or is otherwise in a state of insolvency, the assets representing the technical provisions may be allocated to payment of salary claims before payment of insurance claims, where that legislation accords to insurance claims a priority whose scope encompasses in any event, in addition to the assets representing the technical provisions, other assets of the undertaking and may, by virtue of a ministerial decision, have been extended to all the available assets of the undertaking. While the coordination of national provisions relating to the financial guarantees required of insurance undertakings that is achieved, in particular, by the Community provisions referred to above is intended to ensure adequate protection for policyholders and third-party beneficiaries in every Member State of the Community, the Community provisions in question none the less cannot be interpreted as signifying that the Community legislature meant that, in the event of liquidation of an insurance undertaking, the assets representing technical provisions must, in all circumstances, be allocated by way of absolute priority to the payment of insurance claims. (see paras 24-26, 28, operative part)