STATE IN WHICH THE SERVICE IS PROVIDED IS NOT JUSTIFIED WHERE THE UNDERTAKING PROVIDING THE SERVICES ALREADY SATISFIES EQUIVALENT CONDITIONS IN THE MEMBER STATE IN WHICH IT IS ESTABLISHED AND WHERE THERE EXISTS A SYSTEM OF COOPERATION BETWEEN THE SUPERVISORY AUTHORITIES OF THE MEMBER STATES CONCERNED ENSURING EFFECTIVE SUPERVISION OF COMPLIANCE WITH SUCH CONDITIONS ALSO AS REGARDS THE PROVISION OF SERVICES . ACCORDING TO THE PREAMBLE TO DIRECTIVE 78/473 , THE DIRECTIVE IS INTENDED TO ESTABLISH THE MINIMUM COORDINATION NECESSARY TO FACILITATE THE EFFECTIVE PURSUIT OF COMMUNITY CO-INSURANCE BUSINESS AND TO ORGANIZE SPECIAL COOPERATION BETWEEN THE SUPERVISORY AUTHORITIES OF THE MEMBER STATES AND BETWEEN THOSE AUTHORITIES AND THE COMMISSION WHICH , FOR THE PROVISION OF SERVICES IN THE INSURANCE BUSINESS IN GENERAL , IS PROVIDED FOR ONLY IN THE PROPOSAL FOR A SECOND DIRECTIVE .
66 MOREOVER , A DIFFERENCE OF TREATMENT IN THAT RESPECT BETWEEN THE LEADING INSURER AND OTHER CO-INSURERS DOES NOT APPEAR OBJECTIVELY JUSTIFIED . ALTHOUGH IT IS FOR THE LEADING INSURER TO NEGOTIATE THE CONTRACT AND TO ENSURE ITS PERFORMANCE , THERE IS NOTHING TO PREVENT HIM FROM COVERING A MUCH SMALLER PART OF THE RISK THAN THAT COVERED BY THE OTHER CO-INSURERS .
67 IN THOSE CIRCUMSTANCES AND IN THE CASE OF THE INSURANCE TO WHICH DIRECTIVE 78/473 ON CO-INSURANCE APPLIES , NOT ONLY THE REQUIREMENT THAT THE LEADING INSURER BE ESTABLISHED BUT ALSO THE REQUIREMENT THAT HE BE AUTHORIZED , WHICH ARE LAID DOWN IN THE INSURANCE SUPERVISION LAW , ARE CONTRARY TO ARTICLES 59 AND 60 OF THE TREATY AND THEREFORE ALSO TO THE DIRECTIVE .
68 IT MUST THEREFORE BE HELD THAT THE FEDERAL REPUBLIC OF GERMANY HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 59 AND 60 OF THE EEC TREATY AND UNDER COUNCIL DIRECTIVE 78/473 IN SO FAR AS THE PROVISIONS OF ITS LEGISLATION REQUIRE , WITH REGARD TO COMMUNITY CO-INSURANCE , THAT WHERE THE RISKS ARE SITUATED IN THE FEDERAL REPUBLIC OF GERMANY THE LEADING INSURER MUST BE ESTABLISHED AND AUTHORIZED THERE .
C - THE COMMISSION ' S THIRD HEAD OF CLAIM
69 THE THIRD HEAD OF CLAIM , AS WORDED , CONCERNS THE LEVEL OF THE THRESHOLDS FIXED IN THE FEDERAL REPUBLIC OF GERMANY FOR CERTAIN RISKS WHICH ARE THE SUBJECT OF COMMUNITY CO-INSURANCE . HOWEVER , IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT , THE COMMISSION STATED THAT THAT HEAD OF CLAIM IS IN REALITY DIRECTED AGAINST THE VERY EXISTENCE OF SUCH THRESHOLDS .
70 IT MUST HOWEVER BE OBSERVED THAT THIS IS A HEAD OF CLAIM WHICH DIFFERS FROM AND IS WIDER IN SCOPE THAN THAT FORMULATED IN THE CONCLUSIONS SET OUT IN THE APPLICATION . IT CANNOT THEREFORE BE ADMISSIBLE . AS REGARDS THE INITIAL HEAD OF CLAIM , THE COMMISSION HAS PRESENTED NO ARGUMENT TO SHOW THAT THE LEVEL OF THE THRESHOLDS FIXED BY THE GERMAN LEGISLATION IS TOO HIGH .
71 IT FOLLOWS THAT THE COMMISSION ' S THIRD HEAD OF CLAIM MUST FAIL .
Decision on costs
III -