ABLE TO OFFER, EVEN BY MEANS OF THEIR BRANCHES, A MORE COMPETITIVE SERVICE . CONSEQUENTLY, THE RECOMMENDATION TENDS TO MAKE ACCESS TO THE GERMAN MARKET MORE DIFFICULT .
51 IN THOSE CIRCUMSTANCES THE FIFTH SUBMISSION MUST FAIL .
SIXTH SUBMISSION : CONDITIONS FOR THE APPLICATION OF ARTICLE 85 ( 3 )
52 THE RECOMMENDATION WAS NOTIFIED TO THE COMMISSION ON 23 SEPTEMBER 1982 . THE DECISION FINDS THAT, AS A RESULT, BY VIRTUE OF ARTICLE 4 ( 1 ) OF REGULATION NO 17, NO EXEMPTION MAY BE GRANTED IN RESPECT OF THE PERIOD BETWEEN JUNE 1980 AND THE DATE OF NOTIFICATION . THE APPLICANT DID NOT DISPUTE THAT STATEMENT .
53 WITH REGARD TO THE PERIOD SUBSEQUENT TO THE DATE OF NOTIFICATION, THE APPLICANT DOES, HOWEVER, CONTEST THE DECISION AND CLAIMS THAT ALL THE CONDITIONS FOR THE GRANT OF EXEMPTION WERE MET . THE CONTESTED RECOMMENDATION WAS OBJECTIVELY NECESSARY TO RE-ESTABLISH THE PROFITABILITY OF INSURANCE COMPANIES WHILST SAFEGUARDING THE INTERESTS OF INSURED PERSONS . IN THAT CONNECTION, IT IS NOT WITHOUT INTEREST THAT THE BUNDESKARTELLAMT HAS DECIDED, IN RELATION TO THE APPLICATION OF GERMAN LAW, THAT THE RECOMMENDATION DOES NOT CONSTITUTE AN ABUSE .
54 THE DISPUTE BETWEEN THE PARTIES TURNS IN PARTICULAR ON THE QUESTION WHETHER THE RECOMMENDATION WAS CAPABLE OF CONTRIBUTING TO AN IMPROVEMENT IN THE PROVISION OF SERVICES IN THE INSURANCE SECTOR . IN THAT REGARD THE CONTESTED DECISION RECOGNIZES THAT ONE OF THE APPLICANT' S MAIN ARGUMENTS, NAMELY THAT THE STATISTICS OF THE INDIVIDUAL COMPANIES WITH REGARD TO CLAIMS ARE INSUFFICIENT TO ENABLE A PROPER CALCULATION TO BE MADE, IS CORRECT AS SUCH . THE COMMISSION ADDS, HOWEVER, THAT IT DOES NOT FOLLOW THAT A DECISION BY AN ASSOCIATION TO RECOMMEND PREMIUM INCREASES OF 10, 20 OR EVEN 30% CONSTITUTES A MEASURE CONTRIBUTING TO AN IMPROVEMENT IN THE PROVISION OF SERVICES IN THE INSURANCE INDUSTRY . LIKEWISE, THE FACT THAT THE PURPOSE OF INSURANCE AND THE RELEVANT LEGISLATIVE PROVISIONS REQUIRE THAT THE INSURER MUST AT ALL TIMES BE CAPABLE OF MEETING THE OBLIGATIONS ARISING FROM INSURANCE CONTRACTS WHILST KEEPING THE DIFFERENT CLASSES OF BUSINESS SEPARATE, DOES NOT MEAN THAT AN ACROSS-THE-BOARD INCREASE IN PREMIUMS IS CAPABLE OF IMPROVING INSURANCE SERVICES .
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
56 ACCORDING TO THE APPLICANT, THAT REASONING IS INCORRECT . IT POINTS OUT THAT THE RECOMMENDATION RELATES