TRANSPORT INSURANCE , THROUGH SALESMEN , REPRESENTATIVES , AGENTS OR OTHER INTERMEDIARIES , THEY MUST HAVE AN ESTABLISHMENT IN ITS TERRITORY ; HOWEVER , THAT FAILURE DOES NOT EXTEND TO COMPULSORY INSURANCE AND INSURANCE FOR WHICH THE INSURER EITHER MAINTAINS A PERMANENT PRESENCE EQUIVALENT TO AN AGENCY OR A BRANCH OR DIRECTS HIS BUSINESS ENTIRELY OR PRINCIPALLY TOWARDS THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY .
B - THE COMMISSION ' S SECOND HEAD OF CLAIM
58 IN ITS SECOND HEAD OF CLAIM THE COMMISSION SEEKS A DECLARATION THAT THE FEDERAL REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS NOT ONLY UNDER ARTICLES 59 AND 60 OF THE TREATY BUT ALSO UNDER DIRECTIVE 78/473 ON COMMUNITY CO-INSURANCE . HOWEVER , THAT HEAD OF CLAIM , LIKE THE FIRST , IS BASED ON THE PROPOSITION THAT THE REQUIREMENTS OF AUTHORIZATION AND ESTABLISHMENT ARE CONTRARY TO ARTICLES 59 AND 60 OF THE TREATY WITH REGARD TO ALL INSURANCE BUSINESS . IN THE COMMISSION ' S VIEW THERE ARE THEREFORE NO GROUNDS FOR DISTINGUISHING IN THAT RESPECT BETWEEN THE POSITION OF THE INSURER IN GENERAL AND THAT OF THE LEADING INSURER IN PARTICULAR . THUS , ACCORDING TO THE COMMISSION , THE FEDERAL REPUBLIC OF GERMANY INFRINGED THOSE ARTICLES WHEN , IN TRANSPOSING DIRECTIVE 78/473 INTO NATIONAL LAW , IT EXEMPTED ONLY THE OTHER CO-INSURERS , AND NOT THE LEADING INSURER , FROM THOSE REQUIREMENTS .
59 THE COMMISSION ADMITS THAT THE DIRECTIVE IS AMBIGUOUS ON THAT POINT BUT IT CLAIMS THAT IT MUST BE INTERPRETED IN A MANNER CONSISTENT WITH THE TREATY . THAT WAS ACKNOWLEDGED BY THE MEMBER STATES IN THEIR JOINT STATEMENT IN THE MINUTES OF THE COUNCIL MEETING OF 23 MAY 1978 . CONSEQUENTLY , THE DIRECTIVE CAN IN THE COMMISSION ' S VIEW IN NO WAY BE REGARDED AS REQUIRING THE LEADING INSURER TO BE AUTHORIZED AND TO BE ESTABLISHED IN THE MEMBER STATE IN WHICH THE RISK IS SITUATED .
60 FOR ITS PART , THE GERMAN GOVERNMENT REFERS TO THE DISTINCTION MADE IN DIRECTIVE 78/473 BETWEEN THE LEADING INSURER AND THE OTHER CO-INSURERS . THE PROVISIONS OF THAT DIRECTIVE REGARDING THE LEADING INSURER , AND IN PARTICULAR ARTICLE 2 ( 1 ) ( C ) THEREOF INASMUCH AS IT REFERS TO DIRECTIVE 73/239 , SHOW THAT THE COUNTRY OF THE RISK MAY REQUIRE THAT THE LEADING INSURER BE ESTABLISHED AND AUTHORIZED IN ITS TERRITORY SO THAT HE IS IN A POSITION TO COVER THE WHOLE RISK AS SOLE INSURER . IN THE GERMAN GOVERNMENT ' S VIEW , THEREFORE , THE GERMAN LEGISLATION DOES NOT INFRINGE DIRECTIVE 78/473 OR ARTICLES 59 AND 60 OF THE EEC TREATY .
61 IT IS TRUE THAT THE AFORESAID PROVISION OF THE DIRECTIVE PROVIDES THAT ' THE LEADING INSURER IS AUTHORIZED IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN THE FIRST COORDINATION DIRECTIVE , I.E . HE IS TREATED AS IF HE WERE THE INSURER COVERING THE WHOLE RISK ' . THE DIRECTIVE DOES NOT , HOWEVER , INDICATE IN