CELEX: 51974PC0013
Language: en
Date: 1974-01-16
Title: PROPOSAL FOR A COUNCIL (EEC) DIRECTIVE abolishing restrictions of freedom of establishment in the business of direct life assurance (submitted to the Council by the Commission)

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COM (74) 13
Vol. 1974/0002
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 ---pagebreak---   ! COMMISSION OF THE EUROPEAN COMMUNITIES
  i
 |                                                       COM(74)13 Final
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                                                         Brussels , 16 January 1974
                                    PROPOSAL POE. A
                                COUNCIL (EEC ) DIRECTIVE
             abolishing restrictions of freedom of establishment in the
                           "business of direct life assurance
                     ( submitted to the Council "by the Commission )
       C0M(74 ) 13 Final
 ---pagebreak---                             EXPLMATORY MJÎÎORAKDUM
1 , Title IV D of the General Programme ( l ) on the abolition of
      restrictions on freedom of establishment , adopted, by the Council on
      18 December I96I pursuant to Article 54 ( l ) of the Treaty
      establishing the EEC , stipulates that the lifting of restrictions
      on the setting up of agencies and branches is dependent on the
      coordination of conditions for the talking up and pursuit of the
      business .  This coordination is the subject of a proposed Directive
      submitted by the Commission to the Council on 14«12.1973 «
2 » The object of the present Directive is to lift tho3e restrictions .
      Among other things it lists , not exhaustively, those provii sions in
      the Ilember States which result in discrimination against nationals
      of the other Member States compared with their own nationals and
      which should therefore be abolished.
3 . Many of the provisions of this Directive are identical to those
      of the directive of 24 July 1973 ( 2 ) abolishing restrictions on
      freedom of establishment in the business of direct insurance other
      than life assurance ,
 ( 1 ) OJ N0 215 Jaiiuary I962 , p » 36/62
 ( 2 ) OJ ïï° L 228, 16 August 1973 , p« 20
 ---pagebreak--- 4.    It has the same legal basis , namely Article 54 (2 and 3 ) of the
   EEC Treaty,Pr,rr^T£iph 2 of this article requires consultation of the
   European Parliament and the Economic and Social Committee on
   Directives of this type .    Incidentally, these two institutions were
    consulted on the Directive abolishing restrictions of indemnity
    insurance ( l ).
( l ) Opinion of the European Parliament delivered on 13 March i960
      and published in OJ N° C 27, 28 Ilarch 1968, p , 13 ; Opinion of the
      Economic and Social Committee delivered on 31 May 19^7 »
      published in OJ N° 11.8 , 20 June 1967 , P « 2323/67 .
 ---pagebreak---                                      - 3 ~
THE COUNCIL OP THE EUROPEAN COMMUNITIES,
Having regard, to the Treaty establishing the European Economic Community,
and in particular Article 54 ( 2 ) and ( 3 ) thereof ;
Having regard to the General Programme ( l ) for the abolition of
restrictions on freedom of establishment , and in particular Title IV D
thereof ;
Having regard to the proposal from the Commission j
Having regard to the Opinion of the European Parliament ;
Having regard to tho Opinion of the Economic and Social Committee j
Nhereas the General Programme referred to above provides for the
abolition of all discriminatory treatment of the nationals of the other
Member States as regards establishment in the "business , firstly of
direct insurance other than life assurance , which has been achieved by
the Council Directive of 24 July 1973 ( 2 ) abolishing restrictions on
freedom of establishment in the business of direct insurance other than
life assurance , and, secondly, th.3 business of life assurance ;
Whereas , in accordance with this General Programme , the lifting of
restrinctions on the setting-up of agencies and branches is , a3 regards
direct insurance undertakings , dependent upon the coordination of
conditions of talcing up and pursuit of the business ; whereas this
coordination has been achieved for direct life assurance       the first
Cour.cil Directive »••••* :                 "    '
                                                                     ./.
( 1 ) OJ N0 2 , 15,1.1962 , p. 36/62
( 2 ) 0J 11° L 228 , 16,8,1973 , p. 20
                                                                         /
 ---pagebreak---                                  - 4 -
Whereas the scope of this Directive in in all respects the same as that
defined in Annex I to the first Directive on coordination relating to
life assurance j
Whereas , in accordance with the General Programme referred to above ,
the restrictions on the right to join professional organizations must be
abolished whore the professional activities of the persons concerned
involve the exercize of this right ;
HAS ADOPTED THIS DIRECTIVE :
                               Article 1
Ilember States shall abolish , in respect of the natural persons and
companies and firms covered by Title I of the General Programme for the
abolition of restrictions on freedom of establishment , hereinafter
called "beneficiaries ", the restrictions referred to in Title III of
this programme affecting the right to take up and pursue self-employed
activities in the classes of insurance and the transactions specified
in Article 1 of the first Directive relating to the coordination of
life assurance .
By "First Directive " on coordination of life assurance is meant the first
Ocuncil Directive of          on coordination of tho lavrc , ro-ifulal ions and
administrative provisions relating to the taking^-up and pursuit of the
business of direct life assurance .
                                                                        ./
 ---pagebreak---                               Article 2
1»    Member States shall in particular abolish the following
 restrictions :
  ( a) those which prevent beneficiaries from establishing themselves in
       the host country under the same conditions and with the same
       rights as nationals of that country ;
 ( b ) those existing by reason of administrative practices which
       result in treatment being applied to beneficiaries that is
       discriminatory by comparison with that applied to nationals ,
2»    The restrictions to be abolished shall include in particular
 those arising out of the following measures which prevent or limit
 the establishment of beneficiaries :
 ( a) in Germany s
       the discretionary power of the Federal Ministry of Economic
       Affairs to impose its own conditions of access to this business
       on foreign nationals and to prevent them from pursuing this
       business within the Federal Republic ( Article 106 ( 2 ), n° 1 ,
       in cunjonction with Article 8 ( l ), n° 3 , Article 106 ( 2 ), last
       sentence , and Article 111 ( 2 ) of the Law of 6 June 1931 (VAG ) ;
 ( b ) in France :
     - the need to obtain special consent ( Law of 15 February 1917 »
       as amended and supplemented by the " decret-loi " of 30 October
       1935 * Article 2 ( 2 ) and the "decret " of 19 August 1941 » as
       amended, Articles 1 and 2 ) :
                                                                     •/.
 ---pagebreak---   the obligation to provide a surety-bond or special guarantees as a
  reciprocal requirement ( Law of 15 February 1917 , amended and
  supplemented by the "decret-loi " of 30 October 1935 , Article 2 ( 2 )
  the "decret-loi " of 14 June 1938, Article 42 , the " decret " of 30
  December 1938, as amended, Article 143 and the "decret " of 14
  December 1966 , Articles 9 , 10 and 11 ) ;
  the obligation to deposit technical reserves ("decret " of 30
  December 1938 as amended, Article 179 - " decret " of 13 August
  1947 , as amended, Articles 8 and 13 - "decret " of 14 Deosmber
  1966 , Title I ) ;
) in Ireland :
   the provisions tha.t , to be eligible for an insurance licence , a
   company must be roistered undo":'' the Irish Companies Acts ,
   two-thirds of its shares must be owned by Irish citizens and the
   majority of the directors ( other than a full-time raneging
■ director) must be Irish citizens ( Section 12 of the Insurance
   Act 1936 , Section 7 of the Insurance Act 1964 ) I
 ) in Italy :
   the obligation to prove that the person concerned has lawfully
   pursued the activity of Life assurance for at least ten years
    ( Article 19 of the docreto del President© della Ropubblioa of
    13 February 1959 , n° 449 , consolidating the laws on the exercise
   of private provision of insurance ) :
 ---pagebreak---    e ) in Luxembourg :
   - the obligation to prove that the person concerned has pursued
      activities for at least three years in the fields for which
      an authorization is applied ( Art,' 3 of the Law of 6 September
      1968 on supervision of insurance companies ) ;
   g) in the Nethcrlands :
   - the fact that life-assurance policies of an endowment nature
      may not be formed (Art , 29 , last paragraph of the Law of
      22 December 1922 ),
3,    The laws , regulations or administrative provisions that involve
   beneficiaries in the obligation to provide a deposit or special
   surety-bond shall not be abolished , as long as the undertakings do
   not fulfil the financial conditions' under Articles 18 to 20 of the
   first Directive on coordination of Life assurance in accordance
   with the provisions of Article 33 ( l ) and ( 2 ) of the same
   Directive ,
                             Article 3
1,    IJhere a host Lember State requires of its own nationals wishing
   to take up any activity referred . to in Article 1 proof of good
   repute and proof of no previous bankruptcy, or proof of either
   of these , that State shall accept as sufficient evidence,' in
   respect of nationals of other Iiember States , the production of
   an extract from the " judicial record" or , failing this , of an
   equivalent document issued by a competent judicial or administrative
   authority in the country of origin or the country whence the
   foreign national comes , showing that these requirements have been
   met •
 ---pagebreak--- 2 , Where the country of origin or the country whence the foreign
   national comes does not issue such documentary proof of good repute
   or documentary proof of no previous "bankruptcy, such proof may he
   replaced by a declaration on oath - or in States where there is no
   provision for declaration on oath , "by a solemn declaration - made
   by the person concerned before a competent judicial or administrative
   authority, or where appropriate a notary, in the country of origin
   or in the country whence that person comes ; such authority or
   notary will issue a certificate attesting the authenticity of the
   declaration on oath or solemn declaration,    A declaration in
   respect of no previous bankruptcy may also be made before a
   competent professional or trade body in the said country.
3 « Documents issued in accordance with paragraph 1 or with ,
   paragraph 2 may not be produced more than three months after their
   date of issue ,
4 , Member States shall , within the time limit laid down in Article 6 ,
   designate the authorities and bodies competent to issue these
   documents and shall forthwith inform the other Member States and
   the Commission thereof .
                                                                       *
                             Article 4
1,   Member States shall ensure that beneficiaries have the right to
   join professional or trade organizations under the same conditions
   and with the same rights and obligations as their own nationals .
 ---pagebreak--- 2,    The right to join professional or trade organizations shall , in
   the case of establishment , entail eligibility for election or
   appointment to high office in such organizations ,     Eowcver, such
   posts may "be reserved for nationals where , in pursuance of any
   provision laid down by law or regulation, the organization
   concerned is involved in the exercise of official authority,
3.    In the Grand Duchy of Luxembourg, membership of the " Chambre de
   commerce " shall not give beneficiaries the right to take part in
   the election cf the administrative organs of that Chamber ,
                                Article 5
      No nember State shall grant to any of its nationals who go to
another Member State for the purpose of pursuing any activity referred
to i:i Article 1 any aid liable to distort the conditions of
e st abl i shment .
                                Article 6
      l-'iember States shall amend their national provisions in accordance
v;ith this Directive within 18 months of the notification of the
first Directive on coordination of life assurance and shall forthwith
inform the Commission thereof .      The provisions thus amended shall
be implemented at the same time as the laws , regulations and
administrative provisions adopted in pursuance of the first Directive ,
                                Article 7
      This Directive is addressed to the IJember States ,