Case C-299/01: Action brought on 26 July 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2001-10-13
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, free movement of workers, residence, subsistence level income

C 289/14

EN

Official Journal of the European Communities

13.10.2001

Action brought on 26 July 2001 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-298/01)

(2001/C 289/27)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 26 July 2001 by the Commission of the European
Communities, represented by Gerald Braun, of its Legal Service,
and Christina Tufvesson, Commission Legal Adviser, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, of its Legal Service, Wagner Centre, Kirchberg.

The applicant claims that the Court should:

1.

by

and

that,

retaining

adopting

declare
Para-
graph 257(2a)(5) of the Fifth Book of the Sozialgesetz-
buch (Code of Social Law), in the version at BGBl (Federal
Official Journal) 1999 I, p. 2626, the Federal Republic of
Germany is failing to fulfil its obligations under the EC
Treaty and Council Directive 92/49/EEC (1) 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), in particular Articles 5, 9(1) and (2) and 54(1)
and (2);

2.

order the defendant to pay the costs.

Pleas in law and main arguments

In the Commission’s view, the system chosen by the Federal
Republic of Germany under which an employer’s subsidy
towards certain employees’ private health insurance is made
conditional on the insurance undertaking (i) not engaging in
health insurance together with other classes of insurance or
(ii) using the part of the premiums in respect of which
employees receive a subsidy for health insurance only is
contrary to the requirement of mutual recognition of con-
ditions of access and to the system of supervision introduced
by Directive 92/49/EEC. The
in Para-
graph 257(2a)(5) of the Fifth Book of the Code of Social Law
are designed to replace actual control, under which health
insurance and other classes of
insurance were previously
separated, with a provision which in essence retains the
former rule, thus has the same practical consequences and,
furthermore,
is contrary to the Third Non-Life Insurance
Directive.

requirements

The financial supervision of an insurance undertaking pursuant
to Article 13(1), as amended by Article 9 of Directive
92/49/EEC, including that of the business it carries on either
through branches or under the freedom to provide services, is
the sole responsibility of the home Member State. Conse-
quently, the host Member State (in this case Germany) is in
particular not entitled to subject
insurance undertakings
operating under the freedom to provide services or through
branches to requirements which go beyond those linked to the
authorisation by the home Member State and encroach
upon the competence of that State with regard to financial
supervision, for example the requirement to use premiums or
parts thereof in a quite specific way.

(1) OJ L 228, 11.8.1992, p. 1.

Action brought on 26 July 2001 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-299/01)

(2001/C 289/28)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 26 July 2001 by the Commission of the European
Communities, represented by H. Michard, acting as Agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by maintaining a condition relating to
duration of residence in Luxembourg for the granting of
a guaranteed minimum income, the Grand Duchy of
Luxembourg has failed to fulfil
its obligations under
Article 7(2) of Regulation (EEC) No 1612/68 of the
Council of 15 October 1968 on freedom of movement
for workers within the Community (1) and Article 43 of
the EC Treaty; and

— Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission takes the view that entitlement to a guaran-
teed minimum income constitutes a social advantage within
the meaning of Article 7(2) of Regulation (EEC) No 1612/68

13.10.2001

EN

Official Journal of the European Communities

C 289/15

and that Article 43 EC prohibits any discrimination on the
basis of nationality which hinders access to or pursuit of self-
the imposition of a condition
employment. Accordingly,
relating to duration of residence in the Grand Duchy (be it the
10 years required by the Law of July 1986 or the 5 years by
the new law of April 1999) for the granting of a guaranteed
minimum income to nationals of the other Member States is
contrary to the principle of equal treatment, as enshrined in
Article 7(2) of Regulation No 1612/68 on freedom of move-
ment for workers as well as in Article 43 of the EC Treaty with
regard to self-employed workers.

(1) Official Journal, English Special Edition 1968 (II), p. 475.

down in Article 37 EC. In the present case, the Com-
mission has taken six months to adopt measures, which
were purportedly urgent, in order to palliate a serious
and unforeseen situation, which shows that the measures
were not urgent at all and, in those six months, the
Council could have adopted the necessary conservation
measures without it being necessary for the Commission
to use a legislative power whose scope is very restricted
and pre-determined. Moreover, there are measures in the
contested provision which are not strictly urgent and
exceptional, such as the increase in mesh sizes provided
for in Article 2 and the designation of ports for landing
catches, provided for by Article 12. Furthermore, the
contested regulation contains no provision whatever
limiting its period of validity to less than six months, so
that its temporal application is unlimited and it must be
presumed to remain in force until a subsequent provision
should repeal it.

Action brought on 2 August 2001 by Kingdom of Spain
against Commission of the European Communities

(Case C-304/01)

(2001/C 289/29)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 2 August 2001 by Kingdom of Spain,
represented by Rosario Silva de Lapuerta, Abogado del Estado,
with an address for service in Luxembourg at the Spanish
Embassy, 4-6, boulevard E. Servais.

The applicant claims that the Court should:

— annul Commission Regulation (EC) No 1162/2001 (1) of
14 June 2001 establishing measures for the recovery of
the stock of hake in ICES sub-areas III, IV, V, VI and VII
and ICES divisions VIII a, b, d, c and associated conditions
for the control of activities of fishing vessels;

— order the defendant institution to pay the costs.

Pleas in law and main arguments

— Incorrect legal basis and lack of competence of the
Commission: The contested regulation has as its legal
basis Article 15(1) of Council Regulation 3760/92,
establishing a Community system for fisheries and aqua-
culture (2). That provision confers on the Commission
limited legislative power which that institution may use
only in such cases and under such conditions as provided
in that provision, whilst general powers to legislate reside
with the Council in accordance with the procedure laid

— Breach of the principle of non-discrimination: Article 2(2)
of the contested regulation provides for rules for vessels
of less than 12 metres in length overall which return to
port within 24 hours of their most recent departure, from
port which are different to those applied to other vessels.
That measure harms almost exclusively or, at least, to a
much greater extent, the Spanish fishing fleet which, in
those areas in which the urgent measures apply, consists
entirely of vessels of more than 12 metres in length,
which are at sea for more than a day, whereas the other
Member States do have in their fishing fleets vessels under
12 metres which are covered by the derogation. Such
discrimination against the Spanish fishing feet is not
objectively justified because there is no link between size
of mesh and length of vessel. Moreover, it just so happens
that small vessels, because they are at sea less time,
fish in areas close into shore where there are greater
concentrations of juveniles and, therefore, their fishing
activities can affect much more clearly and directly the
conservation of threatened fish stocks.

— Lack of a statement of reasons: There is nothing in the
contested regulation which makes it possible to know,
clearly and unequivocally, what reasons the Commission
had for establishing the derogation under Article 2(2).

(1) OJ L 159, 15.6.2001, p. 4.
(2) OJ L 389, 31.12.1992, p. 1.