CELEX: 61994CJ0238
Language: en
Date: 1996-03-26 00:00:00
Title: Judgment of the Court of 26 March 1996. # José García and others v Mutuelle de Prévoyance Sociale d'Aquitaine and others. # Reference for a preliminary ruling: Tribunal des affaires de sécurité sociale du Tarn-et-Garonne - France. # Non-life insurance - Council Directive 92/49/EEC - Scope. # Case C-238/94.

Case C-238/94 José García and OthersvMutuelle de Prévoyance Sociale d'Aquitaine and Others(Reference for a preliminary rulingfrom the Tribunal des Affaires de Sécurité Sociale du Tarn-et-Garonne)
         
            «(Non-life insurance – Council Directive 92/49/EEC – Scope)»
            
               
                  Opinion of Advocate General Tesauro delivered on 29 February 1996 
                     
                
               
            
                   
               
               
            
               
                  Judgment of the Court, 26 March 1996  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance other than life insurance – Directive 92/49 – Scope – Insurance forming part of a statutory system of social security – Excluded(Council Directive 92/49/EEC, Art. 2(2))Article 2(2) of Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct
         insurance other than life assurance and amending Directives 73/239 and 88/357 is to be interpreted as meaning that social
         security schemes such as the French statutory social security schemes providing health and maternity insurance for the self-employed
         in non-agricultural trades, old-age insurance for those in skilled manual trades and old-age insurance for those in industrial
         and commercial trades are excluded from the scope of Directive 92/49.  That provision quite clearly excludes from the scope
         of the directive not merely social security organizations but also the types of insurance and operations which they provide
         in that capacity.  Furthermore, the Member States retain their powers to organize their social security systems and thus to
         set up compulsory schemes based on the principle of solidarity, which would be unable to survive if the directive were to
         be applied to them, removing the obligation to contribute.
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT26 March 1996  (1)
         
         
            
         
               ((Non-life insurance – Council Directive 92/49/EEC – Scope))
               
            In Case C-238/94, 
            REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunal des Affaires de Sécurité Sociale for Tarn-et-Garonne,
            France, for a preliminary ruling in the proceedings pending before that tribunal between 
            
            
            
             José García and Others 
            
            
            and
            
             Mutuelle de Prévoyance Sociale d'Aquitaine and Others, 
            
            
            on the interpretation of Article 2(2) of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations
            and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and
            88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1),
            
            THE COURT,,
            
            composed of: G.C. Rodríguez Iglesias, President, D.A.O. Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), F.A. Schockweiler, J.C. Moitinho de Almeida (Rapporteur), P.J.G. Kapteyn, C. Gulmann, J.L. Murray, P. Jann and H. Ragnemalm, Judges, 
            
            Advocate General: G. Tesauro, Registrar: D. Louterman-Hubeau, Principal Administrator, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               José García and Others, by Richard Marcou, of the Montpellier Bar, 
               
               
               ─
               Mutuelle de Prévoyance Sociale d'Aquitaine and Others, by Régis Waquet, of the Hauts-de-Seine Bar, 
               
               
               ─
               the French Government, by Edwige Belliard, Deputy Director in the Legal Directorate of the Ministry of Foreign Affairs, and
               Claude Chavance, Foreign Affairs Secretary in the same ministry, acting as Agents, 
               
               
               ─
               the German Government, by Ernst Röder, Ministerialrat in the Federal Ministry of the Economy, and Bernd Kloke, Oberregierungsrat
               in the same ministry, acting as Agents, 
               
               
               ─
               the Spanish Government, by Alberto José Navarro González, Director-General for Community Legal and Institutional Coordination,
               and Gloria Calvo Díaz, Abogado del Estado, of the Legal Service for Community Affairs, acting as Agents, 
               
               
               ─
               the Netherlands Government, by Professor J.G. Lammers, Acting Legal Adviser in the Ministry of Foreign Affairs, acting as
               Agent, 
               
               
               ─
               the Finnish Government, by Ora Meres-Wuori, Head of Division, acting  Head of the Legal Service in the Ministry of Foreign
               Affairs, acting as Agent, and 
               
               
               ─
               the Commission of the European Communities, by Dimitrios Gouloussis, Legal Adviser, acting as Agent, 
               
               
            
            
            having regard to the Report for the Hearing,
            
            after hearing the oral observations of José García and Others, represented by Laurence Fourrier, of the Montpellier Bar, Mutuelle
               de Prévoyance Sociale d'Aquitaine and Others, represented by Régis Waquet, the French Government, represented by Claude Chavance,
               the Spanish Government, represented by Gloria Calvo Díaz, the Finnish Government, represented by Tuula Pynnä, Legislative
               Adviser, Head of the Court of Justice Division in the Legal Service, acting as Agent, and the Commission, represented by Dimitrios
               Gouloussis, at the hearing on 6 February 1996,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 29 February 1996, 
         gives the following
         
         
         Judgment
         1
            
         By judgment of 7 June 1994, received at the Court on 22 August 1994, the Tribunal des Affaires de Sécurité Sociale (Social
         Security Tribunal) for Tarn-et-Garonne, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty
         a question on the interpretation of Article 2(2) of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws,
         regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC
         and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1). 
         
         
         2
            
         That question was raised in various proceedings challenging final orders to settle unpaid contributions, served on the plaintiffs
         in the main proceedings by a number of social security organizations. 
         
         
         3
            
         The social security schemes involved cover health and maternity insurance for the self-employed in non-agricultural trades,
         old-age insurance for those in skilled manual trades and old-age insurance for those in industrial and commercial trades.
         
         
         
         4
            
         According to the plaintiffs, the monopoly established by French legislation in the field of social insurance is incompatible
         with Community rules, specifically with Directive 92/49/EEC. 
         
         
         5
            
         The national tribunal notes that under Article 2(2) of Directive 92/49/EEC that directive is to apply  
         neither to the types of insurance or operations, nor to undertakings or institutions to which Directive 73/239/EEC does not
         apply, nor to the bodies referred to in Article 4 of that Directive.  The First Council Directive of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating
         to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3) does not
         apply, under Article 2(1)(d) thereof, to  
         insurance forming part of a statutory system of social security. 
         
         
         6
            
         The national tribunal wonders none the less whether, in the light of certain recitals in the preamble to Directive 92/49/EEC,
         Article 2(2) thereof should not be interpreted as referring solely to the structures of social security schemes, whereas the
         content of those schemes ─ cover against the risks concerned (old-age, sickness and invalidity) ─ still falls within the scope
         of the directive and is thus excluded from the monopoly enshrined in the French legislation. 
         
         
         7
            
         The national tribunal refers to the first, third, tenth, fifteenth, twentieth, twenty-second and twenty-third recitals, which
         are worded as follows: 
         
         (1)
         ... it is necessary to complete the internal market in direct insurance other than life assurance from the point of view both
         of the right of establishment and of the freedom to provide services, to make it easier for insurance undertakings with head
         offices in the Community to cover risks situated within the Community; 
         
         
         (3)
         ... Directive 88/357/EEC therefore represents an important stage in the merging of national markets into an integrated market
         and that stage must be supplemented by other Community instruments with a view to enabling all policyholders, irrespective
         of their status, their size or the nature of the risks to be insured, to have recourse to any insurer with a head office in
         the Community who carries on business there, under the right of establishment or the freedom to provide services, while guaranteeing
         them adequate protection; 
         
         
         (10)
         ... the internal market comprises an area without internal frontiers and involves access to all insurance business other than
         life assurance throughout the Community and, hence, the possibility for any duly authorized insurer to cover any of the risks
         referred to in the Annex to Directive 73/239/EEC; ... to that end, the monopoly enjoyed by certain bodies in certain Member
         States in respect of the coverage of certain risks must be abolished; 
         
         
         (15)
         ... pending the adoption of a Directive on investment services harmonizing inter alia the definition of the concept of regulated
         market, for the purposes of this Directive and without prejudice to such future harmonization that concept must be defined
         provisionally; ... that definition will be replaced by that harmonized at Community level which will give the home Member
         State of the market the responsibilities for these matters which this Directive transitionally gives to the insurance undertaking's
         home Member State; 
         
         
         (20)
         ... the Member States must be able to ensure that the insurance products and contract documents used, under the right of establishment
         or the freedom to provide services, to cover risks situated within their territories comply with such specific legal provisions
         protecting the general good as are applicable; ... the systems of supervision to be employed must meet the requirements of
         an integrated market but their employment may not constitute a prior condition for carrying on insurance business; ... from
         this standpoint systems for the prior approval of policy conditions do not appear to be justified; ... it is therefore necessary
         to provide for other systems better suited to the requirements of an internal market which enable every Member State to guarantee
         policyholders adequate protection; 
         
         
         (22)
         ... in some Member States private or voluntary health insurance serves as a partial or complete alternative to health cover
         provided for by the social security systems; 
         
         
         (23)
         ... the nature and social consequences of health insurance contracts justify the competent authorities of the Member State
         in which a risk is situated in requiring systematic notification of the general and special policy conditions in order to
         verify that such contracts are a partial or complete alternative to the health cover provided by the social security system;
         ... such verification must not be a prior condition for the marketing of the products; ... the particular nature of health
         insurance, serving as a partial or complete alternative to the health cover provided by the social security system, distinguishes
         it from other classes of indemnity insurance and life assurance in so far as it is necessary to ensure that policyholders
         have effective access to private health cover or health cover taken out on a voluntary basis regardless of their age or risk
         profile
         . 
         
         
         8
            
         The national tribunal therefore decided to stay the proceedings and refer the following question to the Court for a preliminary
         ruling: Does Article 2(2) of Council Directive 92/49/EEC concern at all, in whole or in part, the actual subject-matter of the existing
         statutory social security system applied in France?
         
         
         9
            
         It must be held that there is no reason to interpret Article 2(2) of Directive 92/49/EEC as meaning that cover against the
         risks envisaged by the social security schemes in issue in the main proceedings falls within the scope of that directive.
         
         
         
         10
            
         That provision quite clearly excludes from the scope of the directive not merely social security organizations (
         undertakings or institutions) but also the types of insurance and operations which they provide in that capacity. 
         
         
         11
            
         In view of the clear and precise terms of Article 2(2), it is not necessary to look at the preamble to the directive in order
         to determine the purpose or scope of that provision. 
         
         
         12
            
         In any event, with particular regard to the tenth, twenty-second and twenty-third recitals, it must be noted, first, that
         the abolition of monopolies referred to in the tenth recital concerns only those whose activities are covered by the directive
         and which constitute undertakings within the meaning of Articles 85, 86 and 90 of the EC Treaty and, secondly, that there
         are two types of health insurance scheme in the Member States, one of which, referred to in the twenty-second and twenty-third
         recitals, is private, the other being in the nature of a system of social security and excluded from the scope of the directive.
         
         
         
         13
            
         Furthermore, as the Advocate General has noted at point 9 of his Opinion, Directive 92/49/EEC, which is based on Articles
         57(2) and 66 of the EEC Treaty, could not regulate the field of social security, which is covered by different provisions
         of Community law. 
         
         
         14
            
         Finally, as the Court stressed in Joined Cases C-159/91 and C-160/91  
          Poucet and Pistre  v  
          Assurances Générales de France and Others  [1993] ECR I-637, paragraph 13, social security schemes such as those in issue in the main proceedings, which are based on
         the principle of solidarity, require compulsory contributions in order to ensure that the principle of solidarity is applied
         and that their financial equilibrium is maintained.  If Article 2(2) of Directive 92/49/EEC were to be interpreted in the
         manner contemplated by the national tribunal, the obligation to contribute would be removed and the schemes in question would
         thus be unable to survive. 
         
         
         15
            
         The Court has also pointed out that Member States retain their powers to organize their social security systems (see  
          Poucet and Pistre , paragraph 6, and Case 238/82  
          Duphar  v  
          Netherlands  [1984] ECR 523, paragraph 16). 
         
         
         16
            
         The answer to the national tribunal's question must therefore be that Article 2(2) of Directive 92/49/EEC must be interpreted
         as meaning that social security schemes such as those in issue in the main proceedings are excluded from the scope of the
         directive. 
         
         Costs
         17
            
         The costs incurred by the French, German, Spanish, Netherlands and Finnish Governments and the Commission of the European
         Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties
         to the main proceedings, a step in the action pending before the national tribunal, the decision on costs is a matter for
         that tribunal. 
         
         On those grounds, 
         
         
         
            
            THE COURT
         
         
         in answer to the question referred to it by the Tribunal des Affaires de Sécurité Sociale for Tarn-et-Garonne by judgment
         of 7 June 1994, hereby rules: 
         
                  Rodríguez Iglesias
               
               
                  Edward 
               
               
                  Puissochet 
               
            
                  Hirsch
               
               
                  Schockweiler 
               
               
                  Moitinho de Almeida 
               
            
                  Kapteyn
               
               
                  Gulmann 
               
               
                  Murray 
               
            
                  Jann
               
               
                  Ragnemalm 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 26 March 1996. 
         
         
         
         
                  R. Grass 
               
               
                  G.C. Rodríguez Iglesias  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: French.