EN Official Journal of the European Union C 123/5

Judgment of the Court (Fourth Chamber) of 7 March 2013 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — DKV Belgium v Association belge des consommateurs Test-Achats ASBL

(Case C-577/11) (1)

(Freedom to provide services - Freedom of establishment - Directives 73/239/EEC and 92/49/EEC - Direct insurance other than life assurance - Freedom to set rates - Health insurance contracts not linked to professional activity - Restrictions - Overriding reasons in the public interest)

2013/C 123/07

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Applicant: DKV Belgium SA

Defendant: Association belge des consommateurs Test-Achats ASBL

Re:

Request for a preliminary ruling — Cour d’appel de Bruxelles — Interpretation of Article 49 and 56 TFEU, of the second paragraph of Article 29 and Article 39(3) of 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) (OJ 1992 L 228, p. 1) and of Article 8(3) of Council Directive 73/239/EEC of 24 July 1973 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 (OJ 1973 L 228, p. 3) — National legislation providing, with regard to health insurance contracts not linked to professional activity, provisions under which the premium, the excess payable and the benefit can be adapted, on the annual date of the premium, only on the basis of specific criteria — System of prior approval of rates — Restriction on the principles of the freedom of establishment and the freedom to provide services — Overriding reasons in the general interest

Operative part of the judgment

Articles 29 and 39(2) and (3) of 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 Article 8(3) of First Council Directive 73/239/EEC of 24 July 1973 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, as amended by Directive 92/49, must be interpreted as not precluding legislation of a Member State which provides, with regard to health insurance contracts not linked to professional activity, provisions under which the premium, the excess payable and the benefit can be adapted annually only:

— on the basis of the consumer price index, or

— on the basis of a so-called ‘medical index’, if and in so far as the changes in that index exceed that in the consumer price index, or

— after obtaining authorisation from an administrative authority responsible for the supervision of insurance undertakings, at the request of the insurance undertaking concerned, where that authority finds that the application of the premium rate of that undertaking, notwithstanding the adaptations calculated on the basis of those two types of indices, gives rise to, or is likely to give rise to losses.

Articles 49 TFEU and 56 TFEU must be interpreted as not precluding such legislation, provided that there are no less restrictive measures which might be used to achieve, under the same conditions, the objective of protecting consumers against sharp, unexpected increases in insurance premium rates, which it is for the national court to ascertain.

(1) OJ C 32, 4.2.2012.