Case C-346/02: Action brought on 30 September 2002 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2002-11-23
Institutions: Court of Justice
Subjects: Luxembourg, action for failure to fulfil an obligation, consumer protection, fixing of prices, insurance company, insurance contract, motor car, provision of services

C 289/14

EN

Official Journal of the European Communities

23.11.2002

(4) Does it follow from the grounds of the judgment in Case
C-39/94 SFEI v La Poste [1996] ECR I-3547, for the
purposes of the practical effect of Article 93(3), that the
national court must annul both the bye-laws and the levy
decisions imposed under those bye-laws and that that
court must order the public body to repay the levies,
even if that is precluded by the rule developed in the
Netherlands case-law concerning the formal legal force of
the levy decisions? Is it relevant
in that regard that
repayment of the levies does not in practice eliminate the
advantage which the field of activity and the individual
undertakings in the branch obtained through the collec-
tive advertising campaigns? Does Community law allow
repayment of the earmarked levy not to take place, either
wholly or in part, if, in the opinion of the national court,
the field of activity or the individual undertakings would
be placed at an unfair advantage in connection with the
circumstance that the advantage obtained as a result of
the advertising campaigns cannot be returned in kind?

(5)

In case of failure to notify an aid as laid down in
Article 93(3), can a public body rely, in order to avoid an
obligation to refund the aid, on the abovementioned rule
of formal legal force of the levy decision if the person to
whom that decision was addressed was not aware, at the
time of the adoption of that decision and during the
period within which it could have been challenged in
administrative proceedings, that the aid of which the levy
forms part had not been notified? May an individual
the authorities have
assume in this connection that
fulfilled their obligations to notify aid under Article 93(3)
of the EC Treaty?

Action brought on 30 September 2002 by the Com-
mission of the European Communities against the Grand
Duchy of Luxembourg

(Case C-346/02)

(2002/C 289/23)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 30 September 2002 by the Commission of
the
European Communities, represented by C. Tufvesson and
J.-F. Pasquier, acting as Agents, with an address for service in
Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that, by introducing and maintaining in force a
system of bonuses and penalties having automatic and
compulsory repercussions on premium rates and apply-
insurance contracts concluded on
ing to all motor
Luxembourg territory by natural persons, without any
distinction being drawn between insurance companies
based in the Grand Duchy of Luxembourg and insurance
undertakings operating there through a branch or by the
provision of services, contrary to the principle of freedom
to set premium rates and elimination of prior or system-
atic controls on premium scales and contracts, as estab-
lished by Articles 6(3), 29 and 39 of Directive 92/49/
EEC (1), the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission does not deny that it is open to Member
States to establish a scale taking into account the claims record
of insured persons or even a uniform system of bonuses and
penalties, but it does oppose any scale or system accompanied
by tariff elements which has automatic and compulsory
repercussions on premium rates, contrary to the principle of
freedom to set rates. That is the position with the Luxembourg
system as regards policyholders who are natural persons.
Whilst the reference premium may be freely fixed by the
parties to the contract of insurance, the Luxembourg rules
attach to certain events affecting the life of the contract
consequences having a compulsory and automatic effect on
the amount of
that
price competition does not come into play as regards the
consequences of those events. Similarly, insurers operating on
the territory of the Grand Duchy of Luxembourg do not have
the right to place the insured person, at the time of entering
into the system, on another level of the scale or to choose
other methods involving the application of other criteria for
reducing or increasing premiums or some other scale reflecting
the accidents occurring over the course of a year or over some
other period of time.

the premium rates, with the result

It is for the Member State imposing the restriction to show
that the measure is justified by the public interest, objectively
necessary, appropriate and proportionate to the objective
pursued, and that it does not needlessly duplicate the rules
applying in the Member State where the service provider is
established. The Luxembourg Government has not shown this.
In any event, as regards consumer protection, there are other
systems which produce the same result without impinging on
rate-setting policy, in particular the organisation of a scheme
involving the systematic publication of the rate-setting policies
pursued by the undertakings concerned in accordance with a
common scale of accident claims. Moreover, it is not apparent

23.11.2002

EN

Official Journal of the European Communities

C 289/15

that the system has the influence which it is alleged to have on
the prevention of accidents; rather, it tends to encourage the
amicable settlement of small-scale damage claims.

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

Pleas in law and main arguments

The pleas in law and main arguments are similar to those in
Case C-346/02 (2).

(1) 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 L 228 of 11.8.1992, p. 1).
(2) See p. 14 of this Official Journal.

Action brought on 28 September 2002 against the Italian
Republic by the Commission of the European Communi-
ties

Action brought on 30 September 2002 by the Com-
mission of the European Communities against the French
Republic

(Case C-348/02)

(2002/C 289/25)

(Case C-347/02)

(2002/C 289/24)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 30 Septem-
ber 2002 by the Commission of the European Communities,
represented by C. Tufvesson and J.-F. Pasquier, acting as
Agents, with an address for service in Luxembourg.

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 28 Septem-
ber 2002 by the Commission of the European Communities,
represented by G. Valero Jordana and R. Amorosi, acting as
Agents.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/13/EC (1) of 11 March 1999 on
the limitation of emissions of volatile organic compounds
due to the use of organic solvents in certain activities and
installations, the Italian Republic has failed to fulfil its
obligations under Article 15 of that directive;

The Commission of the European Communities claims that
the Court should:

— order the Italian Republic to pay the costs.

— declare that, by introducing and maintaining in force a
system of bonuses and penalties having automatic and
compulsory repercussions on premium rates and apply-
ing to all motor insurance contracts concluded on French
territory, without any distinction being drawn between
insurance companies based in France and insurance
undertakings operating there through a branch or by the
provision of services, contrary to the principle of freedom
to set premium rates and elimination of prior or system-
atic controls on premium scales and contracts, as laid
down by Articles 6(3), 29 and 39 of Directive 92/49/
EEC (1),
its
obligations under that directive;

the French Republic has failed to fulfil

— order the French Republic to pay the costs.

Pleas in law and main arguments

Article 249 EC, according to which a directive is to be binding,
as to the result to be achieved, upon each Member State to
which it is addressed, means that Member States are obliged to
comply with time-limits for transposition laid down by
directives. Although the time-limit expired on 1 April 2001,
the Italian Republic had not enacted the provisions necessary
to comply with the directive referred to in the Commission’s
claim.

(1) OJ L 85 of 29.3.1999, p. 1.