C-90/76

1. Council Directive No 72/166/EEC of whose business consists solely in the 24 April 1972, Commission settlement, in the restricted sense Recommendation No 73/185/EEC of referred to above, of accident claims 15 May 1973 and Commission on behalf of insurers, may possibly fall Decision No 74/166/EEC of 6 under the prohibition of Article 85 February 1974 which seek to abolish and, if the national bureau is in a checks on the green card at frontiers dominant position, under the between Member States cannot be prohibition contained in Article 90 of regarded as authorizing the existence the Treaty in conjunction with Article of national provisions or agreements 86. It is for the national court to between national insurance bureaux or determine whether the conditions for their members which are the application of those prohibitions incompatible with the provisions of are fulfilled. the Treaty relating to competition, the 4. For discrimination to fall under the right of establishment and the prohibitions contained in Articles 52 freedom to provide services. and 59 it suffices that such 2. A national provision or an agreement discrimination results from rules of between national bureaux established whatever kind which seek to govern in the context of the green card collectively the carrying on of the system which declares that the business in question. In that case national bureau bears sole it is not relevant whether the dis­ responsibility for the settlement of crimination originated in measures of claims for damage caused in the a public authority, or on the other territory of that Member State by hand, in measures attributable to vehicles insured by foreign insurance individuals. companies but which still allows the 5. Rules or conduct having the effect of national bureau or its members to rely reserving to the national bureau of a on undertakings whose business Member State or to its members or to consists solely in the settlement of insurance companies with an accident claims on behalf of insurers establishment there the final decision in the sense of the handling and as to the payment of damages to investigation of claims, is not victims of accidents caused in the incompatible with Article 90 (1) of the territory of that State by vehicles Treaty in conjunction with Articles 85 normally based in another Member and 86. State are not discriminatory within the 3. A decision or a course of conduct of a meaning of Articles 52 and 59 of the national bureau or concerted practices Treaty if the exclusion of other of its members which have the object categories of undertakings is not based or effect of excluding undertakings on the criterion of nationality.

CIRCOLAZIONE INTERNAZIONALE (UCI)

for an interpretation of Articles 7, 52, 59, 85, 86 and 90 of the EEC Treaty, Council Directive No 72/166/EEC (OJ English Special Edition, 1972 (II), p. 360), Commission Recommendation No 73/185/EEC (OJ L 194 of 16. 7. 1973, p. 13) and Commission Decision No 74/166/EEC (OJ L 87 of 30. 3. 1974, p. 13) relating to the certificate of insurance known as the 'green card',

THE COURT

composed of: H. Kutscher, President, A. M. Donner, President of Chamber, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe and G. Bosco, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

Member States. In the United Kingdom 5. Before the introduction of the green insurers have long been accustomed, at card system and the setting up of central least in connexion with certain categories national bureaux, that is to say before the of risks, to call in independent experts to fifties, loss-adjusters had an important investigate claims and also in certain part to play when accidents occurred cases to check the risks which it is abroad. Indeed if a national and a foreign proposed should be insured. This kind of motor vehicle were involved in an business increased when Lloyds of accident in a State a loss-adjuster in that London became interested in State often found that he was authorized non-marine insurance: in fact the by the foreign insurer to investigate the syndicates of insurers of which Lloyds is loss and negotiate a settlement with the comprised do not generally have their injured party.

matter. 7. Since the entry into force in Italy of the law on compulsory insurance in 4. Loss-adjusters must during the respect of motor vehicles against civil investigation of claims which insurers liability the UCI has availed itself of this instruct them to carry out, supply their law to lay down that foreign insurance principals with as detailed, accurate and undertakings may not henceforth exhaustive particulars as possible of all nominate a loss-adjuster to handle and the factors which make it possible to investigate losses caused in Italy by decide whether the accident gives rise to vehicles insured by them. reimbursement of any loss or injury and what the amount of any such The green card system and the central reimbursement will have to be.

VAN AMEYDE v UCI

9. This situation was an obvious Italy which did not have a system of impediment to freedom of movement compulsory insurance might set up a and to tourism. national insurance bureau.

caused in foreign countries and the issue of these documents to the 16. During this period (from 1953 to various insured. 1970) the UCI did not object and could not have objected to a foreign insurer 13. The aforementioned recommenda­ appointing a loss-adjuster as his agent tion also provided that countries such as instead of using the services of a member

JUDGMENT OF 9. 6. 1977 - CASE 90/76

19. By Law No 990 of 24 December 21. In each country in which the green 1969 Italy fulfilled its international card system is in force a motorist can obligation which it entered into when it obtain from his insurer this card which is signed the Strasbourg Convention and issued by the national bureau (the Paying adopted the system of compulsory Bureau) and which certifies that he is insurance against civil liability in respect covered by compulsory insurance. With of motor vehicles. Article 6 of this Law this card a motorist can travel to another

22. Under the bilateral agreement If the Handling Bureau approves the between the Handling and the Paying request, it thereby gives authority to Bureau the latter undertakes to repay the the nominated correspondent to Handling Bureau the sums which it has handle and settle claims. The request paid out and the expenses which it has for this authority is made to the incurred and in addition pays it a Handling Bureau by the Paying commission equal to 15 % of the sums Bureau, which then becomes paid out. responsible for the fulfilment of the following undertakings. 23. The system is based both on this In requesting the approval of a nomi­ network of bilateral agreements and also nated correspondent, the Member on the domestic law of the country of the Paying Bureau undertakes: where the accident occurred, which — to entrust the handling of all acknowledges that its national bureau has claims to the said correspondent; undertaken to pay for the damage caused — to forward to the said by foreign drivers in possession of a correspondent all notifications green card. relating to such claims and to 24. Thus the part played by the UCI leave to the said correspondent changed after compulsory insurance had the handling and settlement of such claims. been introduced. Instead of merely being the agent of the insurers of foreign motor The Handling Bureau for its part undertakes to forward to the vehicles the UCI had, pursuant to its domestic law, to assume direct liability correspondent all notifications which for every accident in Italy caused by a they receive from the Insured as well as all claims received from third foreign motor vehicle, the driver of which was in possession of a green card. parties and to inform the third parties of the authority given to the 25. According to the Uniform correspondent. Agreement between Bureaux, the UCI as The nominated correspondent a Handling Bureau simply has the option becomes responsible to the Handling of incorporating in its bilateral Bureau, as the duly authorized agent agreements Clause 4 which has been of the said Bureau, for the handling drafted as follows: of such claims. In so doing, the '(a) correspondent will take into account (b) A Member of the Paying Bureau may any directions, whether general or request the Handling Bureau to leave specific received from the Handling the handling and settlement of Bureau.

is solely through a State Insurance 29. For the purpose of further Organization, the Handling Bureau facilitating the use of motor vehicles in will, if requested by a Paying Bureau the Community Council Directive No or a Member of a Paying Bureau 72/166/EEC of 24 April 1972 (OJ either in respect of a particular claim English Special Edition, 1972 (II), p. 360) or in respect of claims in general, required frontier checks on insurance in leave the handling and settlement of respect of vehicles normally based in one such claim or claims to an Member State and entering the territory independent claims handling of another Member State to be organization established by the discontinued. Handling Bureau for the purpose or, if there be no such organization, to a 30. For this purpose the directive duly qualified person in the country advocates an agreement between the of the Handling Bureau nominated national insurers bureaux guaranteeing by the Member of the Paying Bureau reimbursement for any loss or injury for the purpose. caused by a motor vehicle normally (d) In all these cases the Member will, based in the territory of another Member State even if such a vehicle is not by taking over the settlement of insured. And, since frontier insurance claims, undertake to the Handling Bureau to settle such claims in full checks obviously cannot be discontinued if there are one or more Member States compliance with the requirements of the insurance law of that country, in which insurance against civil liability and the Paying Bureau will be in respect of motor vehicles is not responsible for the fulfilment of this compulsory, it provides for the general undertaking.' application of this insurance.

VAN AMEYDE v UCI

effect from 1 July 1973 from making foreign insurers for the settlement of checks at the frontier on insurance accident claims in the category against civil liability in respect of the use referred to above. of vehicles which are normally based in the European territory of another 36. In dealing with this application the Member State. Subsequently the Commission formally opened an Commission in its Decision No 74/166 investigation which has not yet been concluded. of 6 February 1974 (OJ L 87 of 30. 3. 1974, p. 13) recited that the national 37. At the same time as it lodged the insurers' bureaux of all the Member complaint before the Commission the States had concluded the agreement of plaintiff in the main action asked the 12 December 1973 which has already Tribunale Civile e Penale di Milano to been mentioned and fixed 15 May 1974 declare that the claim made by the UCI as the date from which the checks in to the effect that it could entrust the question were to be eliminated. investigation and settlement of accident 33. There exist two other Community claims exclusively to those insurance measures which concern the green card companies which are the members of the system but which are not relevant to the defendant institute is illegal and present case: Commission Decision No consequently to declare illegal any action 74/167/EEC (OJ L 87 of 30. 3. 1974, p. by the UCI in respect of third parties 14) and the Commission Recommen­ which tends to restrict the plaintiff's dation No 74/165/EEC of 10 February freedom of action and to deprive it of business. 1974 (OJ L 87 of 30. 3. 1974, p. 12). 38. By order of 29 April 1976 the 34. On 22 July 1975 the 'Motor Tribunale of Milan referred the following Insurers Bureau acting on its own behalf and on behalf of all the bureaux of the questions to the Court of Justice for a Community informed the Commission preliminary ruling: 1. Are Council Directive No on the form known as A/B of the content of the Uniform Agreement 72/166/EEC (OJ English Special between Bureaux and the Supplementary Edition, 1972 (II), p. 360), Commission Recommendation No Agreement in order to request a negative clearance or exemption. 73/185/EEC (OJ L 194, p. 13) and Commission Decision No

engaged solely in the business of settlement and which are not Upon hearing the report of the members of the bureau, even though Judge-Rapporteur and the views of the they may have been nominated by Advocate-General the parties to the main the insurers of the vehicle causing action and the Commission were asked damage who are based in its country to supply further particulars. of origin? 3. whatever the answer to Question 1, do the principle of non- Summary of the written ob­ discrimination (Article 7 of the servations

The order for reference was received at The object of the green card system is to the Court of Justice on 27 September facilitate the compensation of accident

VAN AMEYDE v UCI

victims by means of a system in which those untertakings (that is to say the all liability falls on one body. insurance undertakings) keep such business for themselves and unjustifiably However the liability of the national exclude everyone else. central bureau is purely instrumental in The UCI is also the instrument used to nature and is merely notional. Whenever share out between the national insurance the liability is incurred the consequent economic risk is in fact passed on to undertakings (and more specifically another body by means of a system of between the largest of them) the automatic recourse elsewhere. The domestic Italian market in the provision national insurers' bureau of the State in of the services of handling and settling which the accident occurred is obliged to claims in respect of accidents caused by compensate the victim who may apply foreign vehicles. As it is only the largest direct to that bureau. However the latter Italian insurance undertakings which bureau has a right against the foreign have their own bureaux which specialize insurer or, if the foreign insurer does not in the handling and settling of accident claims it is to them and to them alone make the payment, against the national insurance bureau of the country where that the handling and settlement of the the vehicle which caused the damage is accident claims in question are finally reserved under the cover of the UCI. normally based, that bureau having issued the green card. The market in the settlement of accident

JUDGMENT OF 9. 6. 1977 - CASE 90/76

express reference or of an assessment in undertakings which are members of the the Community measures referred to in national guarantor. this question and consequently the link existing between the Supplementary The Community measures in question Agreements and the Uniform Agreement cannot be interpreted as giving official solely allows of the deduction that the recognition to the agreements, decisions common guiding principles of this and conduct of the national insurers' system of agreements are recognized in a bureaux which restrict competition in general way and not that specific the sector dealing with the settlement of approval of the various clauses of the accident claims. It is not possible to different agreements was given. The fact maintain that the said Community that the Community measures do no measures authorize or require the more than state that the agreements are adoption of national legislative provisions in conformity with the principles which have the object or effect of expressed in the directive is moreover restricting or eliminating competition in confirmed by the actual text of the the sector dealing with the settlement of recommendation and by that of the accident claims. decision. The second question The following factors must be taken into consideration: the achievement of the Article 85 of the EEC Treaty prohibits objectives set out in the directive requires restrictive agreements and similar as the sole decisive condition the measures not only in the sphere of guarantee by the national bureau of industrial and commercial activities in

handling and settling accident claims can undertaking established in any one be distinguished from the business of Member State may in choosing an insurance in that it is not necessary in assistant in other Member States exercise fact to be an insurer to carry out the this choice without let or hindrance. handling and settlement of claims. Agreements between two or more Taking all those factors into account the national associations or organizations of statement contained in the undertakings whereby the members of recommendation and in the decision one contracting national association or confirming the existence of agreements organization renounce their right to provided for by the directive does not appoint their associates in another allow of the conclusion that the Member State of the EEC and at the establishment of a single national same time assign this right to the guarantor necessarily implies a restriction corresponding association or organization of the business of settling claims in in that State with the result that only the respect of accidents caused by foreign latter body possesses the exclusive right vehicles to the exclusion of companies to act on their behalf in a quite and bureaux which only carry out such discretionary manner either directly or settlements to the benefit of insurance by appointing one of its own members

VAN AMEYDE v UCI

December 1971 concerning the accident occurred; Nederlandse Cement-Handelmaat (b) in that even where that optional schappij (JO L 22 of 26. 1. 1972). clause was accepted it has the effect of leaving to the absolute arbitrary Such an agreement has the object and discretion of each national insurers' effect of restricting competition between bureau, acting as the Handling foreign insurers of vehicles involved in Bureau, the decision whether or not accidents in Italy since the greater or to accept the nomination of lesser efficacy of the service obtained correspondents to be made by an following the choice of one rather than insurer who was a member of another another of the possible associates national bureau; contributes to the formation of the (c) in that even when the optional clause public image and consequently exerts an was accepted and where the Handling influence on the competitive ability of Bureau accepted the requested the undertakings which are members of nomination from the foreign insurer the said organization. concerned nevertheless it leaves to

by an associate undertaking. For associate correspondent in spite of any undertakings the effect of the agreement contrary indication from the foreign constitutes a virtual boycott of a whole insurer; category of bodies which however are (e) in that in any event the agreement perfectly capable of carrying out the creates discrimination between services which might be entrusted to undertakings which may be them. nominated by the foreign insurer, that is to say between the dependent Van Ameyde concludes that the organizations of foreign insurance provisions of the Uniform Agreement undertakings which are capable of between Bureaux, in particular Articles 4 providing motor insurance in the (b) (the optional clause), 6 and 7 country of the Handling Bureau and constitute an agreement or in any event the undertakings which only carry

application of Regulation No 17/62 confirms that the Agreement between Article 86 of the EEC Treaty Bureaux infringes the prohibition laid down by Article 85 (1). From a geographical point of view it is clear that Italy where the conduct of the As there can be no doubt that the UCI takes effect does constitute a national insurers' bureau within the 'substantial part' of the common market. meaning of the directive and the agreements between bureaux is an The UCI and the insurance undertakings association of insurance undertakings affiliated to it occupy a dominant Van Ameyde considers that the following position. The fact that the dominant decisions are decisions prohibited by position is derived from or at least was Article 85 (1) of the EEC Treaty: recognized by national legislative (1) The decision of the Italian national provisions is of no relevance (cf. General bureau not to adopt the optional Motors Continental v Commission [1975] clause in Article 4 (b) of the Uniform ECR 1367). Agreement between Bureaux; (2) The decision of the Council of Acting through their national bureau the Administration of the UCI in no way Italian insurance undertakings were to comply with the nomination by abusing their dominant position on the foreign insurers as agent for market. Having acquired a dominant settlement of their accident claims of position on the particular market of the settlement of accident claims under the an undertaking which solely carries out settlements; green card system with a systematic (3) The decision of the Council of boycott of loss-adjusters they are Administration of the UCI in no way exploiting that dominant position to to permit loss-adjusters to do the exclude possible competitors in order to business of handling and settlement share that market amongst, themselves. of accident claims even acting as (cf. ICI and CSC v Commission [1974] delegated agents for Italian insurance ECR 224). undertakings formally nominated to Loss-adjusters are quite capable of handle and settle accident claims. carrying out the service of handling and settling international accident claims and The illegality of such decisions has been it appears that the conduct of the UCI, affirmed on a number of occasions by which is discriminatory and favours those the Commission and by the Court of insurance undertakings affiliated to it, is Justice. of an abusive nature analogous to that which was criticized in the GEMA case On a correct interpretation of Article 85 (JO L 134 of 20. 6. 1971). (1) of the EEC Treaty national legislative provisions which give the status of Van Ameyde also takes the view that the mandatory internal provisions to UCI abuses its dominant position by

unfair conditions is also appropriate to cover the system whereby the UCI may The third question impose on a foreign insurer the collaboration as correspondent of one of Article 7 of the EEC Treaty its members who was not nominated by the foreign insurer and without the If account is taken of the foreign insurer's being able to refuse the inter-relationship between Article 7 on services of that correspondent the one hand and Articles 52 and 59 on the other it is clear that an infringement Article 90 of the EEC Treaty of the latter provisions constitutes at the same time an infringement of Article 7. An exemption from compliance with the rules of the EEC Treaty on competition Article 52 of the EEC Treaty can only exist in so far as the provisions

entrusted with a service of general the present instance Articles 52 and 59 economic interest because the mere were interpreted as authorizing national function of guarantor does not in itself provisions, agreements, decisions or conduct such as those on which the UCI entail engaging in important activities bases its measures the result would be an which can be regarded as business isolation of the national Italian market in activities. the particular sector of the auxiliary If that function were to be considered as services in question. a service covered by the concept The restrictions prohibited by Article 52 contained in Article 90 (2) the restriction relate not only to the right of of the applicability of the rules relating establishment from the point of view of to competition laid down by the Treaty the theoretical possibility of access but could only relate to the provision of the also to other indirect restrictions which service of guaranteeing compensation for create discrimination between nationals damages without however extending to and foreigners who benefit from the the provision of other related but distinct right of establishment by depriving the services such as the service of the

JUDGMENT OF 9. 6. 1977 - CASE 90/76

Consequently the right given to each State to establish, by virtue of The alleged restrictions also infringe the Article 90 (2), new monopolies or provisions of Article 59 in that they privileged situations which restrict or introduce discrimination between Italian remove an earlier system giving freedom loss-adjusters and foreign loss-adjusters to provide services can only be operated by reason of the fact that the former may within the limits in which it may be freely carry on their normal business in accepted that the monopolized services Italy on appointment by Italian have a sufficiently close link with the insurance undertakings while for foreign exercise of official authority. loss-adjusters or for their Italian subsidiaries the possibility of carrying on The fourth question their normal business on appointment by foreign insurance undertakings is If the Court answers the first question excluded. relating to interpretation in the affirmative van Ameyde argues that the The restrictions introduce discrimination Community measures in question are not between the persons receiving the valid. services of the loss-adjuster by reason of the fact that Italian insurance It believes that this is so as regards

the object of the directive itself; Having regard to the freedom to provide — misuse of power with regard to the services the present case also raises a declared aim which consists in the problem concerning the compatibility of approximation of the laws of the the conduct of the UCI with Article 62 Member States relating to insurance of the EEC Treaty. In effect there exist against civil liability in respect of the new restrictions on the freedom to use of motor vehicles, and in the provide services which had in fact been enforcement of the obligation to attained at the date of the entry into insure against such liability; force of the EEC Treaty. — infringement of Articles 7, 52 et seq., 85, 86 and 90 of the EEC Treaty;

VAN AMEYDE v UCI

they may have been nominated by respectively. the insurers of the vehicle causing (b) The optional clause envisages all the the damage who are based in its hypotheses of the choice of bodies country of origin; which carry out not only the (3) The principle of non-discrimination investigation of accidents but also the (Article 7 of the Treaty), the payment of damages in anticipation provisions concerning the right of of the necessary funds. These two establishment (Article 52 et seq. of activities really constitute the the Treaty) and the freedom to handling and settlement of claims. provide services (Article 59 of the Indeed Article 4 (b) of the Agreement

JUDGMENT OF 9. 6. 1977 - CASE 90/76

but which only accept the first two controls on insurance for the users of points. Undertakings which issue motor vehicles registered in the other insurance against civil liability for motor Member States. The free movement of vehicles in Italy normally rely for motor vehicles within the territory of the statements, expert opinions and Community would be irrevocably investigations of accident claims on destroyed. loss-adjusters both for national accident claims involving more than Lit 5 000 000 The contention of Van Ameyde would and for the approximately 30 000 have the effect of re-establishing the accident claims under the green card system which was applicable before the system, around 10 000 of which are introduction of compulsory insurance, notified to the UCI. that is to say the system which was abandoned because of the substantial The business of settling and paying disadvantage it entailed for victims of damages, that is to say the essential accidents and because it was not business of settlement of claims is satisfactory for the Member States. In however not the true function of order to protect the rights of victims the loss-adjusters. The option provided by national Handling Bureau was Article 4 of admitting loss-adjusters as considered as being itself the insurer of agents for the completion of such tasks the foreign motor vehicle user. in addition to investigation while the bureau retains responsibility, is to be Another negative factor recorded when explained by the differences which may the system currently sought by Van exist with regard to the position of Ameyde in operation was that the bureau loss-adjusters in various States whether settling damages was dependent on the from the point of view of the legal form instructions and on the interests of of such an underaking or from the point foreign insurers. If the foreign insurer did of view of the State controls guaranteeing not give consent to payment the victim its solvency or from the point of view of obtained no compensation. As such cases financial provisions. were numerous the system of bureaux was intended to free the victims of Furthermore by virtue of the optional accidents from that dependence by clause the bureau could also refuse to giving them the opportunity to rely on a

insurer charged not with the investigation of the case but with settling As formulated the question shows a the claim thus depriving the victims of failure to distinguish between the the guarantee of having a bureau bearing activities of investigation and delegation responsibility in their own country a with regard to payment as the question guarantee which is given to them on the refers to undertakings 'whose business is other hand by the system of Directive confined to the settlement of claims in

is reasonable in relation to the there is a dominant undertaking. If authorization to apply checks, the certain activities of the bureau may be financial provisions, the form of the described as monopolistic they are entity, its organization and adequacy of largely compensated for by the guarantee its assets to indemnify the victims. which the bureau is legally required to give in respect of victims while no such An essential principle for the application guarantee is supplied by or required from of the green card system is that the private offices of loss-adjusters. choice of the agent should in the last instance be made by the Handling This situation does not allow the bureau Bureau, which bears exclusive and loss-adjusters to be placed on the responsibility while Van Ameyde seeks same footing. to undermine this principle by arguing that the agreement is void in that it does It is therefore not possible to refer to the not allow a foreign company to choose abuse of a dominant position by reason Van Ameyde nor to insist on the of the necessary nature of certain nomination of any undertaking which, conduct. Moreover the alleged dominant by virtue of its position in the country of position is not capable of affecting trade the Handling Bureau does not have the between Member States since it exists on confidence of that bureau. Consequently the plane of the national bureaux in all when in exercise of the right under the the States in the interest of injured agreement not to subscribe to all the persons in each State. In this respect the options laid down in Article 4 (b) of the UCI emphasizes that international agreement the Italian Ministerial Decree accident claims only represent 0.56 % of of 26 May 1971 provides that the all accident claims in Italy. appointment for carrying out a settlement is to be conferred on an Consequently, in the same way as other insurer who is a member of the bureau, it private bodies which all do business very is merely adapting to the position of the different from the mere settlement of

VAN AMEYDE v UCI

The Member States would then be obliged to Observations of the Republic of Italy re-establish checks at frontiers on insurance against civil liability for foreign As regards the facts the Republic of Italy vehicles. observes that the handling of claims in respect of accidents caused by foreign The Italian Government explains that vehicles does not constitute a from time to time the victim of an profit-making business for the national accident applies directly to the foreign bureaux which they sought to restrict to insurer, who entrusts a private office with themselves for that reason but in fact is the investigation and settlement of the the burden of an obligation which each accident claim. national bureau accepted along with the risk and liability entailed as the If the victim is effectively and promptly counterpart of the advantages thereby compensated the national Handling guaranteed to the insured persons of its Bureau has no knowledge of the incident own country who go abroad. although it would have no reason to The insurance undertakings which are complain precisely because the handling entrusted by the national bureaux with of accidents caused by foreign vehicles is

In such a case the victim turns to the insurance undertaking which placed them in their hands and that the central bureau. That bureau is clearly documents relating in particular to the obliged to compensate the victim. statement of compensation payable should bear the heading of the insurance In claiming for all loss-adjusters the right undertaking affiliated to the national to carry out the investigation and Handling Bureau. It is only in this way settlement of claims in respect of that the victim is guaranteed the actual accidents caused by foreign vehicles payment of the appropriate com without assuming any liability towards pensation. the victim the plaintiff in the main action contests quite clearly the The whole system is based on the compatibility with Community law of a functions of public interest fulfilled by system which allowed checks at frontiers

With regard to the questions referred for emphasizes that the plaintiff in the main preliminary ruling the Italian action is an Italian undertaking doing Government observes that as they are business in Italy and is not an formulated they contain ambiguity as to undertaking from another Member State the very nature of the business of a in respect of which there could be said to loss-adjuster. By reason of the subsidiary exist restrictions on the freedom of nature of the business of settlement in establishment or the freedom to provide comparison with that of insurance such services. business is in essence appropriate to insurance undertakings and as such Article 85 of the Treaty cannot properly be carried out by other organizations save in so far as they have In the opinion of the Italian Government been entrusted with such tasks by trade between Member States is in no insurance undertakings. way affected by the fact that the handling of claims for accidents caused by foreign The business of the mere settlement of vehicles is done by the national insurers' accident claims can be carried out quite bureaux in the territorial area of each of freely not only as regards claims in the Member States. respect of accidents caused by national vehicles but also claims in respect of By reason of its very nature the business accidents caused by foreign vehicles of loss-adjusters is subject to their subject to the sole condition that the appointment by insurance undertakings. work of making the payment to the Such undertakings are free to reach victim should be carried out in the name agreement on the detailed rules to be of, on behalf of and with a receipt from complied with in the regulation and an insurance undertaking for whose acts definition of their contractual the national insurers' bureau must and relationship with their insured. can in fact be responsible. For a problem relating to competition to The Italian Government considers that arise in the present instance it would be the reference to Article 7 of the EEC necessary that the national insurers' Treaty is without relevance. The system bureaux and the loss-adjusters were established or endorsed by Council operating on the market on the same Directive No 72/166/EEC cannot be conditions and that they were in a judged to be incompatible with Articles similar situation with regard to the 52 and 59 of the EEC Treaty on the victims of accidents. grounds that it contains no restriction to the disadvantage of undertakings which, According to the decided cases of the at the request of insurance companies, Court of Justice, for an agreement to be undertake investigation, settlement and found to be prohibited by Article 85 of payment of accident claims in respect of the EEC Treaty it must 'having regard to motor vehicles. Indeed such what can reasonably be foreseen' undertakings are free to establish constitute an obstacle to competition in a themselves in the territory of another major part of the market that is to say Member State and to provide their that it must have a 'deleterious' effect on services there in conditions which are competition, it must affect it 'to an identical to those applicable to similar appreciable extent', substantially and not

relating to compulsory insurance against consumers from the previous system. civil liability in respect of motor vehicles and to the objectives of the national and An analytical examination of the Community rules on the matter. decisions of the Court of Justice enables the Italian Government to observe that Such considerations rule out the idea of a the rules on competition laid down by prohibited agreement within the the Treaty have always been applied in meaning of Article 85 of the EEC Treaty. the context of possible detrimental However, even if a different conclusion effects on commercial relations and in were reached, the present case, in any any case in connexion with objectives event, in the opinion of the Italian which are not compromised in the Government falls within one of the present case. exceptions provided for by Article 85 (3) of the EEC Treaty in paricular because For a dominant position to exist it must such an exemption which is necessary ex once again be possible to show an actual hypothesi is implicity contained in the influence 'within the common market or rules laid down in this respect by the in a substantial part of it' and once again Council and the Commission and to take account in this respect of the because the system has been in­ 'economic and legislative context' within corporated in the Community legal which the agreements concluded by the order. national insurers' bureaux and the provisions governing their activities are The series of contractual rules both at a intended to take effect. national and at a Community level which have been adopted in this connexion in Even if it were sought to find in the fact constitute the necessary and present case an agreement or abuse of a indispendable means of permitting the dominant position infringing Articles 85

Community rules which is being fulfil efficaciously their function of contested in the main action or as to the general interest entrusted to them in compatibility with the rules of the EEC their respective countries. Treaty of the agreements which were concluded by the national insurers' Foreign insurance companies may bureaux. indicate to each bureau the correspondents which they wish to have Consequently the Italian Government in its country; the bureau is free to suggests that the Court of Justice should accept such a correspondent and to give rule that the system established by the him authority to handle claims in respect Agreements concluded between the of accidents caused by persons insured national insurers' bureaux and by with the foreign company but clearly it Council Directive No 72/166/EEC is not may refuse to give authority and may contrary to Articles 85 and 86 of the handle the accident claim itself or EEC Treaty. choose another agent. Whilst it is true that there exists no legal provision to Observations of the Belgian Government prevent the UCI from entrusting the settlement of accident claims to The first question whomsoever it wishes it may be deduced that in refusing to rely on S.r.l. Ufficio None of the Community measures in Henry van Ameyde and to give it question authorizes the national authority the UCI is not acting by virtue legislature, the national bureaux and of any monopoly which it holds in the insurers to restrict or suppress sphere of the handling and settlement of competition in the sphere of the certain accident claims but in the normal settlement of claims for accidents caused application of the rules of contractual by foreign vehicles. The aim of the freedom which are but confirmed by the Community measures is to ensure 'optional' clause of the Uniform compensation for damage caused by such Agreement. The conduct of the UCI is

also in conformity with the general The directive merely constitutes a principles governing an agency whereby liberalizing factor in the movement of each person is free to choose or not to motor vehicles and consequently of choose an agent to represent him taking persons, goods and services. account of the fact that the agent may make his principal liable and that if an The Commission believes that the agency has been given it is at all times following answer should be given to the subject to revocation. first question referred by the Tribunale di

It State whether or not insured and on the expressly provides for the UCI to other it seeks the generalization of authorize insurance companies operating compulsory insurance against civil in Italy to undertake the settlement liability in respect of the use of motor where they are the correspondents of the vehicles. If the green card system on foreign insurers with whom the which the Community measures are insurance against civil liability in respect superimposed does contain any elements of motor vehicles was effected. which are incompatible with Community provisions relating to competition or the Thus for a foreign insurer to be able to freedom of establishment and the carry out himself in Italy the operations freedom to provide services the directive relating to that particular and contingent certainly does not confirm or aggravate part of his service of the settlement of these factors which are no part of its accident claims he must be established in object and are not necessary for the Italy and even if that is the case the UCI realization of that object remains responsible for settlement to the

persons injured. In an appreciation of the Agreement has been included in the Italian law when it reserves to the agreements between national bureaux national bureau the settlement of claims and when it has not been so included the in respect of accidents caused by motor agreements in practice leave unaffected vehicles insured by foreign insurers the the foreign insurer's ability to request the fact must not be overlooked that in the use of a loss-adjuster and the Handling settlement of accident claims it is Bureau's ability to rely or not to rely on necessary to protect the interest of the the services of undertakings of that persons injured as well as the interest of nature or to allow or not to allow its the insurer. members to do so.

of the accident claim. The plaintiff in the main action alleges that in Italy the UCI excludes completely The Commission points out that the loss-adjusters from the settlement of Italian law does not oblige the UCI to accident claims under the green card undertake the settlement on its own and system. It is necessary therefore to directly or to entrust settlement determine whether such conduct may exclusively to insurers. It merely requires infringe the provisions of the Treaty that whosoever carries it out in fact, the relating to competition. settlement must be implemented in such a way that the UCI remains responsible Article 85

That system seems to be in conformity with the auxiliary and not indispensable In practice such conduct has the effect of role of the profession of loss-adjuster in eliminating any competition which may comparison with that of insurer. be created by loss-adjusters for other insurers by the provision of their normal The Commission believes that both services which they carry out on behalf when Clause 4 (b) (iii) of the Uniform of the insurers who have nominated

them thereby altering the balance of the remain exclusively liable to accident market in favour of insurers. From victims. Nevertheless it is not another point of view it deprives those conceivable that in such a case in its insurers who so wish of the possibility of dealings with the foreign bureau and the relying on loss-adjusters in order to carry foreign insurer the UCI should be held out the particular operations relating to responsible for not having carried out the insurance services which they can correctly the operation of settlement in carry out thus reducing the means that, at the request of the foreign insurer whereby such insurers can complete with himself, it had relied on a loss-adjuster other insurance companies. In addition it nominated by the foreign insurer. also eliminates from the market that

Article 90 The conduct in question could mean the systematic and unjustified exclusion of In view of the fact that the said loss-adjusters by the UCI or else its provisions of the Italian law do not prohibiting its members from having restrict competition they also do not recourse to the services of loss-adjusters. constitute State measures which may fall under the prohibition set out in Article If the foreign insurer who issued the 90 (1). The Commission does not regard policy of insurance against civil liability the UCI as an undertaking entrusted in respect of motor vehicles requested to with the operation of services of general be allowed to rely on the services of a economic interest since its activities do loss-adjuster nominated by him to effect not benefit the whole of the national a settlement there could exist restrictive economy. If however this view is not conduct if, without stating valid reasons, correct the conduct which has been held the UCI did not comply with such a incompatible with Article 85 or Article request Naturally even if the central 86 could of course also constitute bureau acceded to the request it would infringement of Article 90 (2).

undertakings including private Conduct of this kind is constituted organizations solely carrying out by the failure to comply, without settlements is not incompatible with valid reasons, with a request to Article 90 (1) of the EEC Treaty in entrust the settlement of a claim in conjunction with Articles 85 and 86. respect of a motor accident to an (b) Agreements concluded between undertaking whose role consists national insurers' bureaux which solely in settlement within the limits make applicable the provision of the sphere of activity of an referred to under (a) authorize the undertaking of this kind where the national bureau of a Member State to request is made by the insurer who undertake, on its own responsibility insured the motor vehicle causing the and on behalf of the foreign insurer accident against civil liability in the settlement of accident claims respect of traffic accidents and where arising in that Member State the insurer is not entitled to

VAN AMEYDE v UCI

which are intended to regulate in a of services within the meaning of collective manner the exercise of a Article 59. specific activity. (c) Nevertheless the fact of reserving the The fourth question settlement of a claim in respect of an accident caused by a motor vehicle In the opinion of the Commission the normally based in another Member reply to be given to the fourth question State to insurance companies or to an is evident from the answers given to the insurance bureau answering to the preceding questions. definition given in Directive No 72/166/EEC established in the territory of the Member State where II — Oral procedure the accident was caused does not In the course of the oral procedure on 16 constitute discrimination within the March 1977 the plaintiff in the main meaning of the first of those articles action, represented by Fernand Charles if the exclusion applying to Jeantet of the Paris Bar, the defendant in undertakings in a different category the main action, represented by such as for example undertakings Gianguido Scalfi, Advocate of Milan, the whose activity consists solely in Italian government represented by Arturo settlements relates both to Marzano, Avvocato dello Stato and undertakings of other Member States the Commission of the European and those of the Member States in Communities represented by A. question. Marchini-Camia, Legal Adviser, (d) For those categories of undertakings developed the arguments put forward in the exclusion of which is compatible the course of the written procedure. with Article 52 it is not necessary to consider the hypothesis of activities The Advocate-General delivered his carried out in the form of provisions opinion at the hearing on 11 May 1977.

3 The UCI is the national bureau, recognized by national legislation, to which are affiliated all or most of the insurers against civil liability in respect of motor vehicles who operate in Italy and it is responsible under the so-called 'green card' system for compensation in respect of accidents caused by motor vehicles insured by foreign insurance companies in the terms of the agreements between the national bureaux of countries adopting that system or, following Supplementary Agreements, caused by foreign vehicles which are not insured.

General observations

4 Two observations of a general nature may be made in respect of the questions referred, the first relating to the meaning of the word 'settle' used in the questions and the other concerning the development of the green card system in the Community context.

5 (a) In the text of the questions with regard to loss-adjusters the Italian court refers to their business as being the 'settling' of accident claims caused by foreign vehicles.

However it is evident from the file that the profession of loss-adjuster consists in particular in supplying an insurance company with extensive, accurate and complete information to enable it to decide whether or not the accident should give rise to payment of damages and the amount of such damages while the final decision as to payment is always to be taken by the insurer.

In comparison to an insurer a loss-adjuster plays an auxiliary and not indispensable role in view of the fact that an insurer can carry out the same tasks through his own organization.

8 The Agreements between Bureaux which constitute an integral part of the green card system provide that where an accident results in a claim being made against an insured the bureau in the country where the accident took place, known as the 'Handling Bureau', will handle and settle such claim as if the Policy of Insurance had been issued by them'.

If the Paying Bureau, having supplied a certificate to a member which itself issued it to an insured, has an organization situated in the country of the Handling Bureau and established there for the purpose of transacting motor insurance, the Handling Bureau will, if so requested, leave the handling and settlement of claims to the member.

9 On the other hand it is only by virtue of an optional clause (optional clause 4 (b) of the Uniform Agreement between Bureaux) that the Paying Bureau may request the Handling Bureau to leave the handling and settlement of claims

JUDGMENT OF 9. 6. 1977 - CASE 90/76

to a nominated correspondent, who, in the terms of that clause, may be one of the following:

(i) a member of the Handling Bureau;

'From 1 July 1973 each original Member State shall refrain from making checks on insurance against civil liability in respect of the use of vehicles which are normally based in the European territory of another original

VAN AMEYDE v UCI

Member State and have not been the subject of notification under Article 4 (b) of the Council Directive of 24 April 1972.'

12 By Decision No 74/166/EEC of 6 February 1974 the Commission, reciting that on 12 December 1973 the national insurers' bureaux of the Member States had concluded an agreement in conformity with the said directive provided that:

'From 15 May 1974 each Member State shall refrain from making checks on insurance against civil liability in respect of vehicles which are normally based in the European territory of another Member State and which are the subject of the Agreement of national insurers' bureaux of 12 December 1973.'

13 Thus the objective of the aforementioned directive, namely to facilitate the free movement of goods and of persons, has been achieved by means of the said agreements and the said decision.

16 The second question seeks to ascertain whether the provisions of Articles 85, 86 and 90 of the Treaty relating to competition prohibit any provision of national law, any agreement between bureaux and any decision or concerted practice which tends to exclude loss-adjusters from the settlement of claims in respect of damage caused by foreign vehicles even though they may have been nominated by the insurers of the vehicle causing the damage who are based in its country of origin.

17 It is necessary to deal separately with the national provisions and the agreements between bureaux on the one hand and the decisions and concerted practices on the other.

National provisions and agreements between bureaux

18 The green card system, recognized and perfected by Community provisions, is intended to facilitate the free movement of persons and goods while safeguarding the interests of persons who have suffered loss or injury by the creation in each Member Country of a national bureau composed of insurance companies each one of which is subject to particular checks and to the obligation to supply the guarantees required by national law.

Thus a national provision which reserves exclusively to insurance companies the settlement of claims in respect of accidents caused by foreign vehicles in the sense of the final decision concerning the compensation of the accident victims does comply with one of the objectives of the green card system.

In giving to the national bureau whose members are insurance companies the exclusive right to settle itself accident claims within the meaning referred to above, or to entrust settlement to one of its members, the Member State does not lay down any measure contrary to the rules of the Treaty in particular Article 90 in conjunction with Articles 85 and 86 so long as such exclusivity does not conflict with the freedom of the insurer to whom the settlement is

contrary to the national legislation.

On the other hand there is nothing in the Agreement between Bureaux to exclude the collaboration of loss-adjusters in their normal auxiliary business of the settlement of claims in respect of accidents caused by foreign vehicles.

21 Consequently in this respect the agreement does not infringe either Article 85 or Article 86 of the Treaty.

22 A national provision or an agreement between national bureaux established in the context of the green card system which declares that the national bureau bears sole responsibility for the settlement of claims for damage caused in the territory of that Member State by vehicles insured by foreign insurance companies but which still allows the national bureau or its members to rely on undertakings whose business consists solely in the settlement of accident claims on behalf of insurers in the sense of the handling and investigation of claims, is not incompatible with Article 90 (1) of the Treaty in conjunction with Articles 85 and 86.

Decisions and concerted practices

23 As such national legislation is not incompatible with the provisions of the Treaty relating to competition the refusal of the Handling Bureau, in implementation of such legislation, to accept the optional clause in its

The third question

26 The third question asks whether Articles 7, 52 and 59 of the Treaty prohibit any provision of national law or any action the effect of which is directly or indirectly to obstruct in a Member State the effective carrying on of the business of a loss-adjuster established in that Member State, even if the provision concerns a national insurers' bureau within the meaning of the definition given in Directive No 72/166/EEC or when the conduct is attributable to that bureau.

27 Article 7 of the Treaty prohibits in general terms all discrimination based on nationality.

In the respective spheres of the right of establishment and the freedom to provide services Articles 52 and 59 guarantee the application of the principle laid down by Article 7.

It follows therefore that if rules are compatible with Articles 52 and 59 they are also compatible with Article 7.

VAN AMEYDE v UCI

The fourth question

31 As the answer to the first question was in the negative the fourth question has lost its purpose.

Costs

32 The costs incurred by the Italian Government and the Commission of the European Communities which submitted observations to the Court are not recoverable and as these proceedings are, so far as the parties to the main action 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.

JUDGMENT OF 9. 6. 1977 - CASE 90/76

On those grounds,

sense of the handling and investigation of claims, is not incompatible with Article 90 (1) of the Treaty in conjunction with Articles 85 and 86. (b) A decision or a course of conduct of a national bureau or concerted practices of its members which have the object or effect of excluding undertakings whose business consists solely in the settlement, in the restricted sense referred to above, of accident claims on behalf of insurers, may possibly fall under the prohibition of Article 85 and, if the national bureau is in a dominant position, under the prohibition contained in Article 90 of the Treaty in conjunction with Article 86.

3. Rules or conduct having the effect of reserving to the national bureau of a Member State or to its members or insurance