Keywords

Summary



Keywords

1 . ACTION FOR DECLARATION OF FAILURE BY MEMBER STATES TO FULFIL OBLIGATIONS - COMMISSION ' S RIGHT OF ACTION - PROPOSAL WHOSE ADOPTION WOULD TERMINATE THE INFRINGEMENT PENDING BEFORE THE COUNCIL - NO EFFECT

( EEC TREATY , ARTS 155 AND 169 )

2 . COMMUNITY LAW - INTERPRETATION - METHODS

3 . FREEDOM TO PROVIDE SERVICES - RESTRICTIONS - PROHIBITION - DIRECT EFFECT

( EEC TREATY , ARTS 59 AND 60 )

4 . FREEDOM TO PROVIDE SERVICES - RESTRICTIONS JUSTIFIED IN THE PUBLIC INTEREST - PERMISSIBILITY - CONDITIONS

( EEC TREATY , ARTS 59 AND 60 )

5 . FREEDOM TO PROVIDE SERVICES - INSURANCE UNDERTAKINGS - REQUIREMENT OF AN AUTHORIZATION - LAWFULNESS - REQUIREMENT OF A PERMANENT ESTABLISHMENT - UNLAWFULNESS - CO-INSURANCE - LEADING INSURER - REQUIREMENT OF A PERMANENT ESTABLISHMENT - UNLAWFULNESS - REQUIREMENT OF AN AUTHORIZATION - UNLAWFULNESS

( EEC TREATY , ARTS 59 AND 60 ; COUNCIL DIRECTIVE 78/483 )

Summary

1 . IN CARRYING OUT THE TASK , CONFERRED ON IT BY ARTICLE 155 OF THE TREATY , TO ENSURE THAT THE PROVISIONS OF THE TREATY ARE APPLIED , IT IS OPEN TO THE COMMISSION TO BRING AN ACTION UNDER ARTICLE 169 IF IT CONSIDERS THAT A MEMBER STATE HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY . THE MERE FACT THAT A PROPOSAL FOR A LEGISLATIVE MEASURE , WHICH IF ADOPTED AND TRANSPOSED INTO NATIONAL LAW WOULD TERMINATE THE INFRINGEMENTS ALLEGED BY THE COMMISSION , HAS ALREADY BEEN SUBMITTED TO THE COUNCIL DOES NOT PREVENT THE COMMISSION FROM BRINGING SUCH AN ACTION .

2 . WHEN THE WORDING OF SECONDARY COMMUNITY LAW IS OPEN TO MORE THAN ONE INTERPRETATION , PREFERENCE SHOULD BE GIVEN TO THE INTERPRETATION WHICH RENDERS THE PROVISION CONSISTENT WITH THE TREATY RATHER THAN THE INTERPRETATION WHICH LEADS TO ITS BEING INCOMPATIBLE WITH THE TREATY .

3 . ARTICLES 59 AND 60 OF THE TREATY BECAME DIRECTLY APPLICABLE ON THE EXPIRY OF THE TRANSITIONAL PERIOD , AND THEIR APPLICABILITY WAS NOT CONDITIONAL ON THE HARMONIZATION OR THE COORDINATION OF THE LAWS OF THE MEMBER STATES . THOSE ARTICLES REQUIRE THE REMOVAL NOT ONLY OF ALL DISCRIMINATION AGAINST A PROVIDER OF A SERVICE ON THE GROUNDS OF HIS NATIONALITY BUT ALSO ALL RESTRICTIONS ON HIS FREEDOM TO PROVIDE SERVICES IMPOSED BY REASON OF THE FACT THAT HE IS ESTABLISHED IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED .

4 . THE FREEDOM TO PROVIDE SERVICES , AS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY , MAY BE RESTRICTED ONLY BY PROVISIONS WHICH ARE JUSTIFIED BY THE GENERAL GOOD AND WHICH ARE APPLIED TO ALL PERSONS OR UNDERTAKINGS OPERATING WITHIN THE TERRITORY OF THE STATE IN WHICH THE SERVICE IS PROVIDED IN SO FAR AS THAT INTEREST IS NOT SAFEGUARDED BY THE PROVISIONS TO WHICH THE PROVIDER OF A SERVICE IS SUBJECT IN THE MEMBER STATE OF HIS ESTABLISHMENT . IN ADDITION , SUCH REQUIREMENTS MUST BE OBJECTIVELY JUSTIFIED BY THE NEED TO ENSURE THAT PROFESSIONAL RULES OF CONDUCT ARE COMPLIED WITH AND THAT THE INTERESTS WHICH SUCH RULES ARE DESIGNED TO SAFEGUARD ARE PROTECTED .

5 . IN THE INSURANCE SECTOR IN GENERAL THERE ARE IMPERATIVE REASONS RELATING TO THE PROTECTION OF THE CONSUMER BOTH AS A POLICY-HOLDER AND AS AN INSURED PERSON WHICH MAY JUSTIFY RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES . IN THE PRESENT STATE OF COMMUNITY LAW , IN PARTICULAR WITH REGARD TO THE COORDINATION OF THE RELEVANT NATIONAL RULES , THE PROTECTION OF THAT INTEREST IS NOT NECESSARILY GUARANTEED BY THE RULES OF THE STATE OF ESTABLISHMENT . IT FOLLOWS THAT , AS REGARDS THE SECTOR OF DIRECT INSURANCE IN GENERAL , THE REQUIREMENT OF A SEPARATE AUTHORIZATION GRANTED BY THE AUTHORITIES OF THE STATE IN WHICH THE SERVICE IS PROVIDED REMAINS JUSTIFIED SUBJECT TO CERTAIN CONDITIONS . ON THE OTHER HAND , THE REQUIREMENT OF AN ESTABLISHMENT , WHICH REPRESENTS THE VERY NEGATION OF THE FREEDOM TO PROVIDE SERVICES , EXCEEDS WHAT IS NECESSARY TO ATTAIN THE OBJECTIVE PURSUED AND , ACCORDINGLY , THAT REQUIREMENT IS CONTRARY TO ARTICLES 59 AND 60 OF THE TREATY .

AS REGARDS MORE SPECIFICALLY CO- INSURANCE , THE POSITION OF THE LEADING INSURER REFERRED TO IN DIRECTIVE 78/473 CAN BE CLEARLY DISTINGUISHED FROM THAT OF INSURERS IN GENERAL AND , CONSEQUENTLY , NEITHER THE REQUIREMENT OF AN ESTABLISHMENT , NOR EVEN THAT OF AN AUTHORIZATION , IN THE STATE IN WHICH THE SERVICE IS PROVIDED MAY BE REGARDED AS COMPATIBLE WITH ARTICLES 59 AND 60 OF THE EEC TREATY .