Case C-298/01: Action brought on 26 July 2001 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2001-10-13
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, freedom to provide services, insurance, right of establishment

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