Association basco-béarnaise des opticiens indépendants v Préfet des Pyrénées-Atlantiques.
Date: 2000-09-21
42 According to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex (see, in particular, Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7; Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraphs 69 and 70; Case C-341/95 Bettati [1998] ECR I-4355, paragraphs 67 and 68; Case C-67/96 Albany [1999] ECR I-5751, paragraph 39; and Joined Cases C-115/97, C-116/97 and C-117/97 Brentjens' [1999] ECR I-6025, paragraph 38).
43 The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court of Justice. It is the Court's duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to interested parties (see, in particular, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 6; Case C-325/98 Anssens [1999] ECR I-2969, paragraph 8; Albany, paragraph 40; and Brentjens', paragraph 39).
45 Furthermore, while the Netherlands Government may have taken the view that the information provided by the national court was not sufficient to enable it to take a position on certain aspects of the questions referred, it must be emphasised that further information was made available in the documents forwarded by the national court, as well as in the written observations and the answers given to the question put by the Court. All that information, which appears in the Report for the Hearing, was brought to the attention of the Governments of the Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity to enlarge upon their observations (see Albany, paragraph 43, and Brentjens', paragraph 42).
50 The Netherlands Government contends that Directive 73/239 does not cover mutual benefit societies with responsibility for the management of sickness insurance forming part of a statutory system of social security (Case C-238/94 García and Others [1996] ECR I-1673, paragraph 10). Article 8(1)(b) cannot therefore be interpreted as precluding national legislation which permits mutual benefit societies, while managing a social security scheme, to create between them legal persons which engage in commercial business.
57 Secondly, the Court has held (see Case C-241/97 Försäkringsaktiebolaget Skandia [1999] ECR I-1879, paragraph 46) that the wording of Article 8(1)(b) of Directive 73/239 in no way prohibits insurance undertakings from holding, as their free assets, shares in a company carrying on business other than insurance business.
58 As the Court also held in Försäkringsaktiebolaget Skandia (paragraph 47), the primary purpose of the prohibition laid down in Article 8(1)(b) of Directive 73/239, preventing insurance undertakings from carrying on commercial business other than insurance business, is to protect the interests of insured persons against the risks which engagement in such business could entail for the solvency of those undertakings. It follows that the aforesaid provision does not prevent insurance undertakings from holding shares in public limited companies which carry on commercial business other than insurance business and to the assets of which the financial risks are confined.
59 The Court stated in paragraph 51 of Försäkringsaktiebolaget Skandia that there is a risk that certain investments might compromise the solvency of insurance undertakings, but that, in order to guard against such a risk, it is for the national supervisory authorities of the home Member State to maintain, in accordance with Article 13 et seq. of Directive 73/239, financial supervision of insurance undertakings.
67 It should be noted, first, that the Court held in Case C-239/98, cited above, that, by failing to adopt the laws, regulations and administrative provisions necessary to comply fully with Directive 92/49 and, in particular, by not transposing that directive into national law in respect of mutual benefit societies governed by the Code de la Mutualité, the French Republic had failed to fulfil its obligations under that directive (paragraph 24).