Opinion of the Advocate General — ECLI:EU:C:2015:95
Date: 2015-02-12
Language of the case: Dutch
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fourth Chamber), 25 June 2015 1. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Direct insurance other than life insurance — Directive 92/49 — Prudential assessment of acquisitions and increases in a qualifying holding in insurance companies — Possibility for the competent national authority to attach a restriction or requirement to the approval of a proposal — Lawfulness — Condition (European Parliament and Council Directive 2007/44, Recital 3; Council Directive 92/81, Art. 15(2)) 2. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Direct insurance other than life insurance — Directive 92/49 — Prudential assessment of acquisitions and increases in a qualifying holding in insurance companies — No obligation for the competent national authority to subject a proposed acquisition to restrictions or requirements before it can oppose the proposal — Limited set of criteria applicable to those restrictions or requirements (Council Directive 92/49, Art. 15(1)) 3. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Direct insurance other than life insurance — Directive 92/49 — Prudential assessment of acquisitions and increases in a qualifying holding in insurance undertakings — Possibility for the competent national authority to attach a restriction or requirement to the approval of a proposal — Lawfulness — Condition — Observance of the principle of proportionality — Verification a matter for the national court (Council Directive 92/49, Art. 15(1)) 1. Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non-life insurance Directive), as amended by Directive 2007/44, must be interpreted as not precluding a Member State, in a situation in which the competent national authority could validly oppose a proposed acquisition pursuant to Article 15b(2) thereof, from authorising that authority from attaching restrictions or requirements to the approval of the proposed acquisition, provided that the rights of the proposed acquirer under that directive are not adversely affected. (see para. 34, operative part 1) 2. Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non-life insurance Directive), as amended by Directive 2007/44, must be interpreted as meaning that the competent national authority is not required to impose restrictions or requirements on the proposed acquirer before it can oppose the proposed acquisition. If that authority decides to attach restrictions or requirements to the approval of a proposed acquisition, those restrictions cannot be based on a criterion which is not among those set out in Article 15b(1) of that directive, nor can they go beyond what is necessary in order for the acquisition to satisfy those criteria. (see para. 46, operative part 2) 3. Article 15b(1) of Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non-life insurance Directive), as amended by Directive 2007/44, must be interpreted as not precluding in principle, the competent national authority from imposing a requirement relating to corporate governance concerning the composition of the supervisory boards of the insurance companies concerned by the proposed acquisition. It follows from Article 15b(1)(d) of Directive 92/49 that the competent national authorities may oppose the proposed acquisition for a reason relating to the ability of the insurance undertaking in question, if the acquisition were to take place, to comply and continue to comply with the prudential requirements based inter alia on that directive, given that, according to that provision, the ability of an insurance undertaking to comply and continue to comply with the prudential obligations requires that the group of which it will become a part has a structure that makes it possible for the competent national authority to exercise effective supervision. It may legitimately be considered that a requirement aiming to guarantee the independence of the supervisory body of a company may contribute to the quality and reliability of the prudential information that it must provide, that being information which is necessary in order for the competent national authority to exercise effective supervision over that company. Therefore, such a requirement may be considered, in principle, as one which is based on one of the criteria listed in Article 15b(1) of Directive 92/49. However, it is for the national court to determine, by taking account of all the circumstances in the main proceedings, whether that requirement is necessary to enable the acquisitions at issue in the main proceedings to satisfy the criteria laid down in that provision. (see paras 48, 52, 53, 56, operative part 3)