CELEX: C2001/289/28
Language: en
Date: 2001-10-13 00:00:00
Title: Case C-299/01: Action brought on 26 July 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg

C 289/14               EN                     Official Journal of the European Communities                                  13.10.2001
Action brought on 26 July 2001 by the Commission of                      The financial supervision of an insurance undertaking pursuant
the European Communities against the Federal Republic                    to Article 13(1), as amended by Article 9 of Directive
                           of Germany                                    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-
                         (Case C-298/01)                                 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
                         (2001/C 289/27)                                 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
An action against the Federal Republic of Germany was                    parts thereof in a quite specific way.
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,          (1) OJ L 228, 11.8.1992, p. 1.
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.    declare that, by adopting and retaining Para-                      Action brought on 26 July 2001 by the Commission of
      graph 257(2a)(5) of the Fifth Book of the Sozialgesetz-            the European Communities against the Grand Duchy of
      buch (Code of Social Law), in the version at BGBl (Federal                                   Luxembourg
      Official Journal) 1999 I, p. 2626, the Federal Republic of
      Germany is failing to fulfil its obligations under the EC                                  (Case C-299/01)
      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                                     (2001/C 289/28)
      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)       An action against the Grand Duchy of Luxembourg was
      and (2);                                                           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,
2.    order the defendant to pay the costs.
                                                                         with an address for service in Luxembourg.
                                                                         The applicant claims that the Court should:
Pleas in law and main arguments
                                                                         —     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
In the Commission’s view, the system chosen by the Federal                     Luxembourg has failed to fulfil its obligations under
Republic of Germany under which an employer’s subsidy                          Article 7(2) of Regulation (EEC) No 1612/68 of the
towards certain employees’ private health insurance is made                    Council of 15 October 1968 on freedom of movement
conditional on the insurance undertaking (i) not engaging in                   for workers within the Community (1) and Article 43 of
health insurance together with other classes of insurance or                   the EC Treaty; and
(ii) using the part of the premiums in respect of which
employees receive a subsidy for health insurance only is                 —     Order the Grand Duchy of Luxembourg to pay the costs.
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 requirements 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               Pleas in law and main arguments
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,               The Commission takes the view that entitlement to a guaran-
furthermore, is contrary to the Third Non-Life Insurance                 teed minimum income constitutes a social advantage within
Directive.                                                               the meaning of Article 7(2) of Regulation (EEC) No 1612/68
 ---pagebreak--- 13.10.2001              EN                       Official Journal of the European Communities                                      C 289/15
and that Article 43 EC prohibits any discrimination on the                       down in Article 37 EC. In the present case, the Com-
basis of nationality which hinders access to or pursuit of self-                 mission has taken six months to adopt measures, which
employment. Accordingly, the imposition of a condition                           were purportedly urgent, in order to palliate a serious
relating to duration of residence in the Grand Duchy (be it the                  and unforeseen situation, which shows that the measures
10 years required by the Law of July 1986 or the 5 years by                      were not urgent at all and, in those six months, the
the new law of April 1999) for the granting of a guaranteed                      Council could have adopted the necessary conservation
minimum income to nationals of the other Member States is                        measures without it being necessary for the Commission
contrary to the principle of equal treatment, as enshrined in                    to use a legislative power whose scope is very restricted
Article 7(2) of Regulation No 1612/68 on freedom of move-                        and pre-determined. Moreover, there are measures in the
ment for workers as well as in Article 43 of the EC Treaty with                  contested provision which are not strictly urgent and
regard to self-employed workers.                                                 exceptional, such as the increase in mesh sizes provided
                                                                                 for in Article 2 and the designation of ports for landing
                                                                                 catches, provided for by Article 12. Furthermore, the
                                                                                 contested regulation contains no provision whatever
(1) Official Journal, English Special Edition 1968 (II), p. 475.
                                                                                 limiting its period of validity to less than six months, so
                                                                                 that its temporal application is unlimited and it must be
                                                                                 presumed to remain in force until a subsequent provision
                                                                                 should repeal it.
Action brought on 2 August 2001 by Kingdom of Spain
    against Commission of the European Communities
                                                                            —    Breach of the principle of non-discrimination: Article 2(2)
                                                                                 of the contested regulation provides for rules for vessels
                           (Case C-304/01)                                       of less than 12 metres in length overall which return to
                                                                                 port within 24 hours of their most recent departure, from
                                                                                 port which are different to those applied to other vessels.
                           (2001/C 289/29)                                       That measure harms almost exclusively or, at least, to a
                                                                                 much greater extent, the Spanish fishing fleet which, in
                                                                                 those areas in which the urgent measures apply, consists
An action against the Commission of the European Communi-                        entirely of vessels of more than 12 metres in length,
ties was brought before the Court of Justice of the European                     which are at sea for more than a day, whereas the other
Communities on 2 August 2001 by Kingdom of Spain,                                Member States do have in their fishing fleets vessels under
represented by Rosario Silva de Lapuerta, Abogado del Estado,                    12 metres which are covered by the derogation. Such
with an address for service in Luxembourg at the Spanish                         discrimination against the Spanish fishing feet is not
Embassy, 4-6, boulevard E. Servais.                                              objectively justified because there is no link between size
                                                                                 of mesh and length of vessel. Moreover, it just so happens
                                                                                 that small vessels, because they are at sea less time,
The applicant claims that the Court should:                                      fish in areas close into shore where there are greater
                                                                                 concentrations of juveniles and, therefore, their fishing
                                                                                 activities can affect much more clearly and directly the
—     annul Commission Regulation (EC) No 1162/2001 (1) of                       conservation of threatened fish stocks.
      14 June 2001 establishing measures for the recovery of
      the stock of hake in ICES sub-areas III, IV, V, VI and VII
      and ICES divisions VIII a, b, d, c and associated conditions
      for the control of activities of fishing vessels;
—     order the defendant institution to pay the costs.
                                                                            —    Lack of a statement of reasons: There is nothing in the
                                                                                 contested regulation which makes it possible to know,
                                                                                 clearly and unequivocally, what reasons the Commission
                                                                                 had for establishing the derogation under Article 2(2).
Pleas in law and main arguments
—     Incorrect legal basis and lack of competence of the
      Commission: The contested regulation has as its legal
      basis Article 15(1) of Council Regulation 3760/92,                    (1) OJ L 159, 15.6.2001, p. 4.
      establishing a Community system for fisheries and aqua-               (2) OJ L 389, 31.12.1992, p. 1.
      culture (2). That provision confers on the Commission
      limited legislative power which that institution may use
      only in such cases and under such conditions as provided
      in that provision, whilst general powers to legislate reside
      with the Council in accordance with the procedure laid