CELEX: C2002/289/23
Language: en
Date: 2002-11-23 00:00:00
Title: Case C-346/02: Action brought on 30 September 2002 by the Commission of the European Communities against the Grand Duchy of Luxembourg

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               The Commission of the European Communities claims that
      C-39/94 SFEI v La Poste [1996] ECR I-3547, for the                  the Court should:
      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                —     declare that, by introducing and maintaining in force a
      court must order the public body to repay the levies,                     system of bonuses and penalties having automatic and
      even if that is precluded by the rule developed in the                    compulsory repercussions on premium rates and apply-
                                                                                ing to all motor insurance contracts concluded on
      Netherlands case-law concerning the formal legal force of
      the levy decisions? Is it relevant in that regard that                    Luxembourg territory by natural persons, without any
      repayment of the levies does not in practice eliminate the                distinction being drawn between insurance companies
                                                                                based in the Grand Duchy of Luxembourg and insurance
      advantage which the field of activity and the individual
      undertakings in the branch obtained through the collec-                   undertakings operating there through a branch or by the
      tive advertising campaigns? Does Community law allow                      provision of services, contrary to the principle of freedom
      repayment of the earmarked levy not to take place, either                 to set premium rates and elimination of prior or system-
      wholly or in part, if, in the opinion of the national court,              atic controls on premium scales and contracts, as estab-
                                                                                lished by Articles 6(3), 29 and 39 of Directive 92/49/
      the field of activity or the individual undertakings would
      be placed at an unfair advantage in connection with the                   EEC (1), the Grand Duchy of Luxembourg has failed to
      circumstance that the advantage obtained as a result of                   fulfil its obligations under that directive;
      the advertising campaigns cannot be returned in kind?
                                                                          —     order the French Republic to pay the costs.
(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
                                                                          Pleas in law and main arguments
      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          The Commission does not deny that it is open to Member
      forms part had not been notified? May an individual                 States to establish a scale taking into account the claims record
      assume in this connection that the authorities have                 of insured persons or even a uniform system of bonuses and
      fulfilled their obligations to notify aid under Article 93(3)       penalties, but it does oppose any scale or system accompanied
      of the EC Treaty?                                                   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 the premium rates, with the result 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
Action brought on 30 September 2002 by the Com-                           the right to place the insured person, at the time of entering
mission of the European Communities against the Grand                     into the system, on another level of the scale or to choose
                      Duchy of Luxembourg                                 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
                          (Case C-346/02)                                 other period of time.
                          (2002/C 289/23)                                 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.
An action against the Grand Duchy of Luxembourg was                       In any event, as regards consumer protection, there are other
brought before the Court of Justice of the European Communi-              systems which produce the same result without impinging on
ties on 30 September 2002 by the Commission of the                        rate-setting policy, in particular the organisation of a scheme
European Communities, represented by C. Tufvesson and                     involving the systematic publication of the rate-setting policies
J.-F. Pasquier, acting as Agents, with an address for service in          pursued by the undertakings concerned in accordance with a
Luxembourg.                                                               common scale of accident claims. Moreover, it is not apparent
 ---pagebreak--- 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             Pleas in law and main arguments
the prevention of accidents; rather, it tends to encourage the
amicable settlement of small-scale damage claims.
                                                                             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          (1 ) Council Directive 92/49/EEC of 18 June 1992 on the coordination
     direct insurance other than life assurance and amending Directives           of laws, regulations and administrative provisions relating to
     73/239/EEC and 88/357/EEC (third non-life insurance Directive)               direct insurance other than life assurance and amending Directives
     (OJ L 228 of 11.8.1992, p. 1).                                               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                                                   (Case C-348/02)
                               Republic
                                                                                                         (2002/C 289/25)
                           (Case C-347/02)
                                                                             An action against the Italian Republic was brought before the
                                                                             Court of Justice of the European Communities on 28 Septem-
                           (2002/C 289/24)                                   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:
An action against the French Republic was brought before the
                                                                             —      declare that, by failing to adopt the laws, regulations
Court of Justice of the European Communities on 30 Septem-
                                                                                    and administrative provisions necessary to comply with
ber 2002 by the Commission of the European Communities,
represented by C. Tufvesson and J.-F. Pasquier, acting as                           Council Directive 1999/13/EC (1) of 11 March 1999 on
                                                                                    the limitation of emissions of volatile organic compounds
Agents, with an address for service in Luxembourg.
                                                                                    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
                                                                             —      order the Italian Republic to pay the costs.
the Court should:
—      declare that, by introducing and maintaining in force a               Pleas in law and main arguments
       system of bonuses and penalties having automatic and
       compulsory repercussions on premium rates and apply-
       ing to all motor insurance contracts concluded on French              Article 249 EC, according to which a directive is to be binding,
       territory, without any distinction being drawn between                as to the result to be achieved, upon each Member State to
       insurance companies based in France and insurance                     which it is addressed, means that Member States are obliged to
       undertakings operating there through a branch or by the               comply with time-limits for transposition laid down by
       provision of services, contrary to the principle of freedom           directives. Although the time-limit expired on 1 April 2001,
       to set premium rates and elimination of prior or system-              the Italian Republic had not enacted the provisions necessary
       atic controls on premium scales and contracts, as laid                to comply with the directive referred to in the Commission’s
       down by Articles 6(3), 29 and 39 of Directive 92/49/                  claim.
       EEC (1), the French Republic has failed to fulfil its
       obligations under that directive;
                                                                             (1 ) OJ L 85 of 29.3.1999, p. 1.
—      order the French Republic to pay the costs.