Commission of the European Communities v Italian Republic.
Date: 2009-04-28
49. Lastly, the Commission notes that other Member States have less restrictive systems for obtaining the same results as the Italian legislation is claimed to be pursuing. It refers, in that regard, to the Bureau central de tarification (Central Rates Office) established both in Belgium and in France, the Consorcio de Compensación de Seguros (Insurance Compensation Consortium) established in Spain, the consortium of major insurance undertakings established in the Netherlands, and the mutual insurance system established in Portugal.
62. It is settled case-law that the term ‘restriction’ within the meaning of Articles 43 EC and 49 EC covers all measures which prohibit, impede or render less attractive the freedom of establishment or the freedom to provide services ( CaixaBank France , paragraph 11; Case C‑465/05 Commission v Italy [2007] ECR I‑11091, paragraph 17; and Case C‑389/05 Commission v France [2008] ECR I-1057, paragraph 52).
63. As regards the question of the circumstances in which a measure applicable without distinction, such as the obligation to contract at issue in the present case, may come within that concept, it should be borne in mind that rules of a Member State do not constitute a restriction within the meaning of the EC Treaty solely by virtue of the fact that other Member States apply less strict, or more commercially favourable, rules to providers of similar services established in their territory (see, to that effect, Case C‑384/93 Alpine Investments [1995] ECR I‑1141, paragraph 27, and Case C‑403/03 Schempp [2005] ECR I‑6421, paragraph 45).
64. By contrast, the concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder intra-Community trade (see, to that effect, Alpine Investments , paragraphs 35 and 38, and CaixaBank France , paragraph 12).
66. Nevertheless, the imposition by a Member State of an obligation to contract such as that at issue constitutes a substantial interference in the freedom to contract which economic operators, in principle, enjoy.
69. If they wish to enter the Italian market under conditions which comply with Italian legislation, such undertakings will be required to re-think their business policy and strategy, inter alia, by considerably expanding the range of insurance services offered.
70. Inasmuch as it involves changes and costs on such a scale for those undertakings, the obligation to contract renders access to the Italian market less attractive and, if they obtain access to that market, reduces the ability of the undertakings concerned to compete effectively, from the outset, against undertakings traditionally established in Italy (see, to that effect, CaixaBank France , paragraphs 13 and 14).
72. A restriction on the freedom of establishment and the freedom to provide services may be justified where it serves overriding requirements relating to the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 61; Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 39; and Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 55).
83. As regards whether the obligation to contract as it is in force in the Italian Republic goes beyond what is necessary to achieve the objective of social protection for victims of road traffic accidents, it must be borne in mind, first of all, that it is not essential, with regard to the proportionality criterion, that a restrictive measure laid down by the authorities of a Member State should correspond to a view shared by all the Member States concerning the means of protecting the legitimate interest at issue.
84. The situation relating to road traffic, and to the relevant public interest objectives in that area, varies from one Member State to another. Consequently, Member States must be recognised as having some discretion in that area. Whilst it is true that it is for a Member State which relies on an imperative requirement to justify a restriction within the meaning of the EC Treaty to demonstrate that its rules are appropriate and necessary to attain the legitimate objective being pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions (Case C‑110/05 Commission v Italy [2009] ECR I‑0000, paragraphs 65 and 66).
100. Articles 6, 29 and 39 of Directive 92/49 prohibit Member States from introducing a system of prior approval or systematic notification of scales of premiums that an insurance undertaking intends to use in their territory in its dealings with policyholders.
101. As the Court has already stated, the Community legislature thus meant to secure the principle of freedom to set rates in the non-life insurance sector, including third-party liability motor insurance (Case C-59/01 Commission v Italy [2003] ECR I-1759, paragraph 29, and Case C‑346/02 Commission v Luxembourg , paragraph 21).
105. Third, to the e xtent that Article 11(1a) of Law No 990/69 and Article 35(1) of the Code of Private Insurance are likely to have repercussions on premium rates in that they outline a technical framework within which insurance undertakings must calculate their premiums, it is clear that such a restriction on the freedom to set rates is not prohibited by Directive 92/49.
106. It should be recalled, in that regard, that full harmonisation in the field of non-life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature ( Commission  v Luxembourg , paragraph 24).