DKV Belgium v Association belge des consommateurs Test-Achats ASBL.
Date: 2013-03-07
20. It should be borne in mind that Articles 29 and 39(2) and (3) of Directive 9 2/49 and 8(3) of Directive 73/239 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 (see Case C‑518/06 Commission  v Italy  [2009] ECR I‑3491, paragraph 100).
21. 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 (Case C‑518/06 Commission  v Italy , paragraph 101 and the case-law cited).
22. However, 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 European Union legislature (Case C‑346/02 Commission  v Luxembourg  [2004] ECR I‑7517, paragraph 24; Case C‑347/02 Commission  v France [2004] ECR I‑7557, paragraph 25; and Case C‑518/06 Commission  v Italy , paragraph 106).
23. Accordingly, national legislation introducing a technical framework governing how insurance undertakings are to calculate their premiums is not contrary to the principle of freedom to set rates on the sole ground that that technical framework affects premium rate changes (see, to that effect, Case C‑346/02 Commission  v Luxembourg , paragraph 25; Case C‑347/02 Commission  v France , paragraph 26; and Case C‑518/06 Commission  v Italy , paragraph 105).
31. It is settled case-law in this regard that the term ‘restriction’ within the meaning of Articles 49 TFEU and 56 TFEU covers all measures which prohibit, impede or render less attractive the freedom of establishment or the freedom to provide services (Case C‑518/06 Commission  v Italy , paragraph 62 and the case-law cited).
32. As regards the question of the circumstances in which a measure applicable without distinction, such as the system of premium rate increases at issue in the main proceedings, 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 FEU 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 Case C 518/06 Commission  v Italy , paragraph 63 and the case-law cited).
33. 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 (Case C‑518/06 Commission  v Italy , paragraph 64 and the case-law cited).
36. It follows that insurance undertakings entering the market of a Member State which has introduced a system of premium rate increases such as that at issue in the main proceedings are obliged, if they want to be able to access that market under conditions which comply with the legislation of that Member State, to re-think their business policy and strategy (see, to that effect, Case C‑518/06 Commission  v Italy , paragraph 69).
38. 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, Case C‑518/06 Commission  v Italy , paragraph 72 and the case-law cited).
41. Moreover, the objective of consumer protection is an overriding requirement relating to the public interest, given the sensitivity of the insurance sector from the point of view of the consumer as a policyholder and an insured person (see, to that effect, Case 205/84 Commission  v Germany [1986] ECR 3755, paragraphs 32 and 33).