WRITTEN QUESTION P-1717/98

by Carl Lang (NI) to the Commission

(19 May 1998)

Subject: Supplementary social protection schemes

It appears that, in terms of the directives relating to insurance other than life assurance, the situation of supplementary social protection schemes is not entirely clear.

In view of the fact that some Member States have made certain schemes compulsory, can the Commission say whether the latter are included in or excluded from the scope of the directives relating to insurance other than life assurance? Can they be regarded as legal schemes or not?

Does the Commmission believe the way in which such schemes currently operate and the existing legal status thereof to be compatible with the free movement of persons?

Answer given by Mr Flynn on behalf of the Commission

(10 June 1998)

The Commission would like to draw the Honourable Member's attention to the case law of the Court of Justice concerning the possible implications 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)(1).

In its judgment(2) of 26 March 1996, the Court emphasised that this Directive could not be applied to the field of social security, which is covered by various provisions of Community law.

The scope of the judgment of 26 March 1996 should be regarded as being limited to situations similar to the case in question. The limiting of the application of the insurance directives concerns only the activity of the social security institutions involved in the case in question and participating in the management of the national social security scheme, which fulfils a social objective and complies with the principle of solidarity. In these specific cases, the activity of these institutions could not be regarded as being of an economic nature or, therefore, as a business activity within the meaning of the EC Treaty.

However, insurance activities exercised by insurance companies covered by the insurance directives are not excluded on the grounds that they are part of the national compulsory social security system. Private insurance companies practising these activities at their own risk come under the scope of the insurance directives and are subject to the system of authorisation and financial control by the Member State of origin.

The problems posed by supplementary pension schemes in connection with the free movement of persons have been examined in the Commission's Green Paper on supplementary pensions in the single market(3). As a first step towards overcoming the obstacles to free movement associated with supplementary pensions, the Commission has recently tabled a proposal for a Directive on safeguarding the supplementary pension rights of employed and self-employed persons moving within the European Union(4). This proposal is currently before the Council; Parliament and the Economic and Social Committee have already expressed favourable opinions.

(1) OJ L 228, 11.8.1992.

(2) Judgment of 26 March 1996, case C-238/94, Garcia, ECR 1996 p. 1-1673.

(3) COM(97) 283.

(4) OJ C 5, 9.1.1998.