CELEX: 61983CJ0251
Language: en
Date: 1984-12-13 00:00:00
Title: Judgment of the Court (Third Chamber) of 13 December 1984. # Eberhard Haug-Adrion v Frankfurter Versicherungs-AG. # Reference for a preliminary ruling: Amtsgericht Aachen - Germany. # Reference for a preliminary ruling - Insurance - No-claims bonus. # Case 251/83.

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61983J0251

Judgment of the Court (Third Chamber) of 13 December 1984.  -  Eberhard Haug-Adrion v Frankfurter Versicherungs-AG.  -  Reference for a preliminary ruling: Amtsgericht Aachen - Germany.  -  Reference for a preliminary ruling - Insurance - No-claims bonus.  -  Case 251/83.  

European Court reports 1984 Page 04277 Spanish special edition Page 00925

SummaryPartiesSubject of the caseGroundsDecision on costsOperative part
Keywords

1 . QUESTIONS FOR A PRELIMINARY RULING - POWERS OF THE COURT - IDENTIFICATION OF THE SUBJECT-MATTER OF THE QUESTION  ( EEC TREATY , ART . 177 )   2.COMMUNITY LAW - PRINCIPLES - EQUALITY OF TREATMENT - DISCRIMINATION ON GROUNDS OF NATIONALITY - MOTOR VEHICLE INSURANCE RATES - VEHICLES BEARING CUSTOMS REGISTRATION PLATES - REFUSAL OF NO-CLAIMS DISCOUNT - PERMISSIBILITY   ( EEC TREATY , ARTS 7 , 48 , 59 AND 65 )   3.FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS ON EXPORTS - MEASURES HAVING EQUIVALENT EFFECT - CONCEPT - MOTOR VEHICLE INSURANCE RATES - VEHICLES BEARING CUSTOMS REGISTRATION PLATES - REFERENCE TO PARTICULAR CIRCUMSTANCES OF USE - PERMISSIBILITY   ( EEC TREATY , ART . 34 )    

Summary

1 . ALTHOUGH IT IS ESSENTIAL THAT NATIONAL COURTS EXPLAIN THE REASONS WHY THEY CONSIDER THAT A REPLY TO THEIR QUESTIONS IS NECESSARY FOR THEIR DECISION IN THE MAIN PROCEEDINGS , AND DEFINE THE LEGAL CONTEXT OF THE REQUEST FOR INTERPRETATION , WHERE QUESTIONS ARE COUCHED IN IMPRECISE TERMS IT IS FOR THE COURT TO EXTRACT FROM ALL THE  INFORMATION PROVIDED BY THE NATIONAL COURT AND FROM THE DOCUMENTS CONCERNING THE MAIN PROCEEDINGS THE ELEMENTS OF COMMUNITY LAW THAT NEED TO BE INTERPRETED , HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE .    2.THE GENERAL PROHIBITION OF DISCRIMINATION LAID DOWN IN ARTICLE 7 AND THE       IMPLEMENTING RULES IN ARTICLES 48 , 59 AND 65 ARE INTENDED TO ELIMINATE ALL MEASURES WHICH , IN THE FIELDS OF FREE MOVEMENT OF WORKERS AND FREEDOM TO PROVIDE SERVICES , TREAT A NATIONAL OF ANOTHER MEMBER STATE MORE SEVERELY OR PLACE HIM IN A SITUATION LESS ADVANTAGEOUS , FROM A LEGAL OR FACTUAL POINT OF VIEW , THAN THAT OF ONE OF THE MEMBER STATE ' S OWN NATIONALS IN THE SAME CIRCUMSTANCES .   THEY DO NOT , HOWEVER , PRECLUDE THE APPLICATION IN MOTOR-VEHICLE INSURANCE CONTRACTS OF TARIFF CONDITIONS BASED ON OBJECTIVE ACTUARIAL FACTORS UNDER WHICH NO-CLAIMS BONUSES ARE NOT GRANTED IN RESPECT OF VEHICLES REGISTERED UNDER CUSTOMS PLATES .   3.ARTICLE 34 OF THE TREATY APPLIES ONLY TO NATIONAL MEASURES WHICH HAVE AS  THEIR SPECIFIC OBJECT OR EFFECT THE RESTRICTION OF PATTERNS OF EXPORTS AND THEREBY THE ESTABLISHMENT OF A DIFFERENCE IN TREATMENT BETWEEN THE DOMESTIC TRADE OF A MEMBER STATE AND ITS EXPORT TRADE , IN SUCH A WAY AS TO PROVIDE A SPECIAL ADVANTAGE FOR NATIONAL PRODUCTS OR FOR THE DOMESTIC MARKET OF THE STATE CONCERNED .   NATIONAL RULES DO NOT FALL WITHIN THAT CATEGORY IF THEY MERELY AUTHORIZE INSURANCE COMPANIES TO TAKE INTO ACCOUNT IN THEIR TARIFF CONDITIONS PARTICULAR CIRCUMSTANCES IN WHICH VEHICLES ARE USED WHICH INCREASE OR DIMINISH THE INSURANCE RISK , SUCH AS , FOR EXAMPLE , THE USE OF VEHICLES REGISTERED UNDER CUSTOMS PLATES , IN RESPECT OF WHICH ARTICLE 34 DOES NOT PROHIBIT THE REFUSAL OF NO-CLAIMS BONUSES .    

Parties

IN CASE 251/83 REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE AMTSGERICHT ( LOCAL COURT ) AACHEN FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN  EBERHARD HAUG-ADRION , 242 AVENUE DE L ' HIPPODROME , B-1970 WEZEMBEEK-OPPEM ,   PLAINTIFF ,   AND  FRANKFURTER VERSICHERUNGS-AG , REPRESENTED BY ITS MANAGING BOARD WHICH IS ITSELF REPRESENTED BY ITS CHAIRMAN , PROSPER GRAF CASTELL ZU CASTELL , 18 TAUNUSANLAGE , 6000 FRANKFURT 1 ,   DEFENDANT ,    

Subject of the case

ON THE INTERPRETATION OF THE RELEVANT COMMUNITY LAW CONCERNING THE ' ' NO-CLAIMS BONUS ' '  IN THE FIELD OF MOTOR VEHICLE INSURANCE ,  

Grounds

1 BY AN ORDER OF 26 OCTOBER 1983 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 10 NOVEMBER 1983 , SUPPLEMENTED BY A SECOND ORDER OF 14 NOVEMBER 1983 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 21 NOVEMBER 1983 , THE AMTSGERICHT ( LOCAL COURT ) AACHEN , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY A QUESTION ON THE INTERPRETATION OF THE RELEVANT PROVISIONS OF COMMUNITY LAW , IN ORDER TO DECIDE WHETHER AN INSURANCE SCHEME UNDER WHICH NO-CLAIMS BONUSES WERE NOT GRANTED TO OWNERS OF VEHICLES BEARING CUSTOMS REGISTRATION PLATES WAS COMPATIBLE WITH COMMUNITY LAW .    2 THAT QUESTION WAS RAISED IN THE COURSE OF PROCEEDINGS BETWEEN MR HAUG-ADRION , A GERMAN NATIONAL WHO IS AN OFFICIAL OF THE EUROPEAN COMMUNITIES IN THE SERVICE OF THE COMMISSION AND LIVES IN BRUSSELS , AND AN INSURANCE COMPANY , FRANKFURTER VERSICHERUNGS-AG , WHOSE REGISTERED OFFICE IS IN FRANKFURT .    3 IN 1981 THE PLAINTIFF IN THE MAIN PROCEEDINGS , MR HAUG-ADRION , BOUGHT A MOTOR CAR IN THE FEDERAL REPUBLIC OF GERMANY AND REGISTERED IT UNDER CUSTOMS PLATES , SINCE HE INTENDED TO EXPORT IT TO BELGIUM . THE THIRD-PARTY LIABILITY INSURANCE REQUIRED FOR THE REGISTRATION OF THE VEHICLE WAS ISSUED TO MR HAUG-ADRION BY THE FRANKFURTER VERSICHERUNGS-AG , WHICH FOR THE INSURANCE OF VEHICLES WITH CUSTOMS REGISTRATION PLATES DOES NOT APPLY ITS USUAL SYSTEM OF CHARGES BUT INSTEAD APPLIES A TARIFF WHICH DOES NOT TAKE INTO ACCOUNT THE INSURED PERSON ' S DRIVING RECORD WHEN CALCULATING PREMIUMS .        4 IT APPEARS FROM THE DOCUMENTS IN THE MAIN PROCEEDINGS THAT MR HAUG-ADRION WAS , UNDER THE CATEGORY OF CONTRACT WHICH HAD PREVIOUSLY EXISTED BETWEEN HIM AND THE FRANKFURTER VERSICHERUNGS-AG , ENTITLED TO THE HIGHEST RATE OF NO-CLAIMS BONUS . MR HAUG-ADRION THEREFORE REQUESTED THAT THE NO-CLAIMS BONUS WHICH HE HAD ACQUIRED UNDER HIS PREVIOUS INSURANCE CONTRACT BE TRANSFERRED TO HIS NEW CONTRACT REGARDING A VEHICLE REGISTERED UNDER CUSTOMS PLATES .    5 THE FRANKFURTER VERSICHERUNGS-AG REFUSED HIS REQUEST , AND HE THEREFORE BROUGHT AN ACTION BEFORE THE AMTSGERICHT AACHEN FOR THE REFUND OF THAT PART OF THE INSURANCE PREMIUM WHICH HE WOULD NOT HAVE HAD TO PAY HAD THE BONUS BEEN TRANSFERRED , SOME DM 100 .    6 BY ORDER OF 26 OCTOBER 1983 THE AMTSGERICHT FIRST ASKED THE COURT FOR A PRELIMINARY RULING ON THE FOLLOWING QUESTION , AS FRAMED BY THE PLAINTIFF IN THE MAIN PROCEEDINGS :    ' ' IS IT COMPATIBLE WITH THE EEC TREATY AND OTHER PROVISIONS OF COMMUNITY LAW THAT OFFICIALLY APPROVED CONDITIONS OF INSURANCE FOR COMPULSORY MOTOR VEHICLE LIABILITY INSURANCE SYSTEMATICALLY EXCLUDE FROM PERSONAL TARIFF REDUCTIONS ACCORDED TO THE RESIDENTS OF THE COUNTRY IN WHICH THE SAID CONDITIONS WERE APPROVED INSURED PERSONS RESIDENT IN OTHER COUNTRIES OF THE EUROPEAN COMMUNITIES?  ' '   7 BY A SECOND ORDER MADE ON 14 NOVEMBER 1983 , WHICH SHOULD BE REGARDED AS HAVING REPLACED THE PREVIOUS ORDER , THE AMTSGERICHT REPHRASED THE QUESTION IN THE FOLLOWING TERMS :    ' ' IS IT COMPATIBLE WITH THE EEC TREATY AND OTHER PROVISIONS OF COMMUNITY LAW THAT INSURED PERSONS RESIDENT IN ANOTHER COUNTRY OF THE EUROPEAN COMMUNITY AND DRIVING A MOTOR CAR WITH CUSTOMS REGISTRATION PLATES ARE NOT GRANTED NO-CLAIMS DISCOUNTS?  ' '  THE JURISDICTION OF THE COURT   8 ACCORDING TO THE FRANKFURTER VERSICHERUNGS-AG , THE DEFENDANT IN THE MAIN PROCEEDINGS , THE QUESTION THUS ASKED IS ' ' INADMISSIBLE ' '  SINCE IT IS COUCHED IN SUCH GENERAL TERMS THAT IT IS NOT POSSIBLE FOR THE COURT TO REPLY BY GIVING AN INTERPRETATION OF THE TREATY . SINCE THE AMTSGERICHT DID NOT REFER TO ANY PROVISION OF COMMUNITY LAW FOR WHICH IT SOUGHT AN INTERPRETATION AND DID NOT SHOW TO WHAT EXTENT SUCH A PROVISION MIGHT BE RELEVANT TO ITS DECISION , ITS ORDER AMOUNTED TO A GENERAL REQUEST TO THE COURT FOR LEGAL INFORMATION .        9 AS THE COURT HAS ALREADY HELD ON SEVERAL OCCASIONS , ALTHOUGH IT IS ESSENTIAL THAT NATIONAL COURTS EXPLAIN THE REASONS WHY THEY CONSIDER THAT A REPLY TO THEIR QUESTIONS IS NECESSARY FOR THEIR DECISION IN THE MAIN PROCEEDINGS , AND DEFINE THE LEGAL CONTEXT OF THE REQUEST FOR INTERPRETATION , WHERE QUESTIONS ARE COUCHED IN IMPRECISE TERMS IT IS FOR THE COURT TO EXTRACT FROM ALL THE INFORMATION PROVIDED BY THE NATIONAL COURT AND FROM THE DOCUMENTS CONCERNING THE MAIN PROCEEDINGS THE ELEMENTS OF COMMUNITY LAW THAT NEED TO BE INTERPRETED , HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE .    10 IN THIS CASE IT IS QUITE CLEAR FROM THE SAID DOCUMENTS THAT THE PLAINTIFF IN THE MAIN PROCEEDINGS RAISED THE POSSIBLE INCOMPATIBILITY WITH ARTICLES 7 AND 65 OF THE TREATY OF THE PROVISIONS REGARDING THE GRANT OF THE BONUS CONTAINED IN THE GENERAL CONDITIONS OF INSURANCE OFFERED BY THE DEFENDANT IN THE MAIN PROCEEDINGS INASMUCH AS THEY ALLEGEDLY EXCLUDE HIM , ON THE GROUND OF HIS FOREIGN RESIDENCE , FROM THE BENEFIT OF TARIFF REDUCTIONS GRANTED ON AN INDIVIDUAL BASIS .    11 IT FOLLOWS THAT THE SUBJECT-MATTER OF THE PRELIMINARY QUESTION IS SUFFICIENTLY IDENTIFIABLE AND THAT THE OBJECTIONS RAISED IN THAT RESPECT BY THE DEFENDANT IN THE MAIN PROCEEDINGS CANNOT BE UPHELD .   THE REPLY TO BE GIVEN TO THE QUESTION   12 IN REFERRING THE QUESTION TO THE COURT THE AMTSGERICHT WISHES ESSENTIALLY TO KNOW WHETHER THE FUNDAMENTAL PRINCIPLE PROHIBITING DISCRIMINATION ON GROUNDS OF NATIONALITY , LAID DOWN IN ARTICLE 7 OF THE TREATY AND DEFINED MORE EXACTLY WITH REGARD TO THE FREEDOM TO PROVIDE SERVICES BY ARTICLES 59 AND 65 , WHICH PROHIBIT ALL RESTRICTIONS ON GROUNDS OF NATIONALITY OR RESIDENCE , MUST BE INTERPRETED AS PRECLUDING CONTRACTUAL PROVISIONS SUCH AS THOSE INCLUDED IN THE GENERAL CONDITIONS OF INSURANCE OFFERED BY THE DEFENDANT IN THE MAIN PROCEEDINGS .    13 IN THE LIGHT OF THE ORAL ARGUMENT PRESENTED TO THE COURT , THE QUESTION PUT BY THE AMTSGERICHT MUST BE REGARDED AS ALSO ASKING WHETHER THE REFUSAL TO GRANT A BONUS TO THE PLAINTIFF IN THE MAIN PROCEEDINGS WAS CONTRARY TO ARTICLE 48 OF THE TREATY , WHICH PROHIBITS ALL DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS WHO ARE NATIONALS OF THE MEMBER STATES , AS REGARDS EMPLOYMENT ,     REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT , AND ALSO TO ARTICLES 30 AND 34 OF THE TREATY CONCERNING THE ELIMINATION OF QUANTITATIVE RESTRICTIONS IN TRADE BETWEEN MEMBER STATES .    14 WITH REGARD FIRST TO THE GENERAL PROHIBITION OF DISCRIMINATION LAID DOWN IN ARTICLE 7 AND THE IMPLEMENTING RULES IN ARTICLES 48 , 59 AND 65 , IT MUST BE POINTED OUT THAT THOSE PROVISIONS ARE INTENDED TO ELIMINATE ALL MEASURES WHICH , IN THE FIELDS OF FREE MOVEMENT OF WORKERS AND FREEDOM TO PROVIDE SERVICES , TREAT A NATIONAL OF ANOTHER MEMBER STATE MORE SEVERELY OR PLACE HIM IN A SITUATION LESS ADVANTAGEOUS , FROM A LEGAL OR FACTUAL POINT OF VIEW , THAN THAT OF ONE OF THE MEMBER STATE ' S OWN NATIONALS IN THE SAME CIRCUMSTANCES .    15 IN ORDER TO SHOW THAT THE PROVISIONS OF COMMUNITY LAW ON WHICH HE RELIES WERE CONTRAVENED , THE PLAINTIFF IN THE MAIN PROCEEDINGS SIMPLY ASSERTED THAT DISCIMINATION RESULTED FROM THE FACT THAT THE REFUSAL , IN THE FEDERAL REPUBLIC OF GERMANY , TO GRANT A BONUS TO INSURED PERSONS WHO HAD VEHICLES REGISTERED UNDER CUSTOMS PLATES MAINLY CONCERNED NATIONALS OF MEMBER STATES OTHER THAN THE FEDERAL REPUBLIC OF GERMANY OR PERSONS WHO DID NOT RESIDE IN THE FEDERAL REPUBLIC OF GERMANY .    16 THAT ARGUMENT CANNOT BE ACCEPTED IN THE CASE OF GENERAL TARIFF CONDITIONS SUCH AS THOSE WHICH ARE THE SUBJECT OF THE MAIN PROCEEDINGS . THOSE TARIFF CONDITIONS IN NO WAY TAKE INTO ACCOUNT THE NATIONALITY OR PLACE OF RESIDENCE OF THE INSURED PERSON ; THEY ARE BASED EXCLUSIVELY ON OBJECTIVE ACTUARIAL FACTORS AND ON THE OBJECTIVE CRITERION OF REGISTRATION UNDER CUSTOMS PLATES .    17 EVEN IF SUCH REGISTRATION MAINLY CONCERNS NATIONALS OF STATES OTHER THAN THE MEMBER STATE IN QUESTION , IT MUST BE POINTED OUT THAT THE REFUSAL TO GRANT A BONUS IN RESPECT OF VEHICLES REGISTERED UNDER CUSTOMS PLATES MAY ALSO , INDEPENDENTLY OF ANY CONSIDERATION OF NATIONALITY , AFFECT NATIONALS OF THE MEMBER STATE IN QUESTION WHO LIVE THERE AND HAVE ACQUIRED A VEHICLE WITH THE INTENTION OF EXPORTING IT , OR NATIONALS OF THAT MEMBER STATE WHO RESIDE IN ANOTHER MEMBER STATE AND WHO WISH TO EXPORT TO THE MEMBER STATE IN WHICH THEY RESIDE A VEHICLE BOUGHT IN THE MEMBER STATE OF WHICH THEY ARE NATIONALS . THAT , INDEED , IS THE CASE OF THE PLAINTIFF IN THE MAIN PROCEEDINGS .        18 IT MUST THEREFORE BE INFERRED FROM THE FOREGOING THAT THE PROHIBITION OF DISCRIMINATION LAID DOWN BY ARTICLES 7 , 48 , 59 AND 65 OF THE TREATY DOES NOT PRECLUDE THE APPLICATION IN INSURANCE CONTRACTS OF TARIFF CONDITIONS SUCH AS THOSE WHICH ARE THE SUBJECT OF THE MAIN PROCEEDINGS .    19 WITH REGARD , SECONDLY , TO THE PROVISIONS RELIED ON CONCERNING THE FREE MOVEMENT OF GOODS , IN PARTICULAR ARTICLE 34 OF THE TREATY , WHICH PROHIBITS QUANTITATIVE RESTRICTIONS ON EXPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT , THE PLAINTIFF IN THE MAIN PROCEEDINGS ARGUES THAT THOSE PROVISIONS PRECLUDE ANY DISCRIMINATION AS REGARDS INSURANCE TERMS BETWEEN VEHICLES HABITUALLY KEPT IN THE FEDERAL REPUBLIC OF GERMANY AND THOSE HABITUALLY KEPT IN OTHER MEMBER STATES .    20 IT MUST BE OBSERVED IN THAT RESPECT THAT THE COURT HAS CONSISTENTLY HELD THAT ARTICLE 34 APPLIES ONLY TO NATIONAL MEASURES WHICH HAVE AS THEIR SPECIFIC OBJECT OR EFFECT THE RESTRICTION OF PATTERNS OF EXPORTS AND THEREBY THE ESTABLISHMENT OF A DIFFERENCE IN TREATMENT BETWEEN THE DOMESTIC TRADE OF A MEMBER STATE AND ITS EXPORT TRADE , IN SUCH A WAY AS TO PROVIDE A SPECIAL ADVANTAGE FOR NATIONAL PRODUCTS OR FOR THE DOMESTIC MARKET OF THE STATE CONCERNED .    21 NATIONAL RULES SUCH AS THOSE IN QUESTION IN THE MAIN PROCEEDINGS DO NOT FALL WITHIN THAT CATEGORY ; THEY MERELY AUTHORIZE INSURANCE COMPANIES TO TAKE INTO ACCOUNT IN THEIR TARIFF CONDITIONS PARTICULAR CIRCUMSTANCES IN WHICH VEHICLES ARE USED WHICH INCREASE OR DIMINISH THE INSURANCE RISK , SUCH AS , FOR EXAMPLE , THE USE OF VEHICLES REGISTERED UNDER CUSTOMS PLATES .    22 QUITE APART FROM THE FACT THAT THE ENACTMENT OF SUCH RULES IN A MEMBER STATE IN NO WAY PROHIBITS INSURERS IN THAT STATE FROM GRANTING A BONUS IN RESPECT OF VEHICLES REGISTERED UNDER CUSTOMS PLATES , THERE IS NOTHING TO SUGGEST THAT A TARIFF CONDITION SUCH AS THAT AT ISSUE IN THE MAIN PROCEEDINGS , COVERED BY SUCH RULES , GIVES ANY ADVANTAGE WHATEVER TO NATIONAL PRODUCTS OR TO THE DOMESTIC MARKET OF THE MEMBER STATE CONCERNED .    23 THE ANSWER TO THE QUESTION PUT BY THE NATIONAL COURT MUST THEREFORE BE THAT THE REFUSAL OF A NO-CLAIMS BONUS TO INSURED PERSONS RESIDENT IN ANOTHER MEMBER STATE WHO OWN A VEHICLE REGISTERED UNDER CUSTOMS PLATES IS NOT     CONTRARY TO ANY PROVISION OF COMMUNITY LAW , IN SO FAR AS THAT REFUSAL IS BASED SOLELY ON OBJECTIVE ACTUARIAL CRITERIA APPLIED IN A NON-DISCRIMINATORY MANNER .    

Decision on costs

COSTS  24 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .    

Operative part

ON THOSE GROUNDS , THE COURT ( THIRD CHAMBER ),   IN ANSWER TO THE QUESTION REFERRED TO IT BY THE AMTSGERICHT AACHEN BY ORDER OF 14 NOVEMBER 1983 , HEREBY RULES :   THE REFUSAL OF A NO-CLAIMS BONUS TO INSURED PERSONS RESIDENT IN ANOTHER MEMBER STATE WHO OWN A VEHICLE REGISTERED UNDER CUSTOMS PLATES IS NOT CONTRARY TO ANY PROVISION OF COMMUNITY LAW , IN SO FAR AS THAT REFUSAL IS BASED SOLELY ON OBJECTIVE ACTUARIAL CRITERIA APPLIED IN A NON-DISCRIMINATORY MANNER .