C-239/98
ECLI:EU:C:1999:462
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OPINION OF MR ALBER — CASE C-239/98
OPINION OF ADVOCATE GENERAL ALBER delivered on 29 September 1999 *
A — Introduction the business, a requirement that has not been met.
1. In the proceedings brought against France for failure to fulfil its obligations, the Commission is pleading that France has 3. The two directives concerned are Coun- not fully transposed two directives con- cil Directive 92/49/EEC 2 on direct insur- cerning direct insurance within the time- ance other than life assurance, and Council limits prescribed. The transposition mea- Directive 92/96/EEC on direct life assur- sures communicated to the Commission did ance, 3 amending the third non-life insur- not apply to 'mutuelles' 1 governed by the ance directive and the third life assurance Code de la Mutualité, as they should have directive respectively. done in order to comply with those direc- tives.
4. The purpose of the directives is, through harmonisation of authorisation, the condi- 2. In addition to insurance business, these tions governing authorisation and pruden- 'mutuelles' engage in social activities, such tial control systems, to enable insurance as the operation of pharmacies, holiday undertakings to operate anywhere in the homes, etc. The transposition of the direc- Community in accordance with the right of tives requires in particular that the insur- ance business be separated, in legal and organisational terms, from these other 2 — Council Directive 92/49/EEC of 18 June 1992 on the types of business, with the consequences coordination of laws, regulations and administrative provi- sions relating to direct insurance other than life assurance, that entails for the conduct and solvency of and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance directive), OJ 1992 L 228, p. 1. 3 — Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provi- sions relating to direct life assurance and amending * Original language: German. Directives 79/267/EEC and 90/619/EEC (third life assur- 1 — The 'mutuelles' are mutual societies. ance directive), OJ 1992 L 360, p. 1.
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establishment and the freedom to provide B — The facts services.
7. France had informed the Commission of its t r a n s p o s i t i o n m e a s u r e s , Laws 5. The directives also apply to 'mutuelles'. No 94/678 and No 94/679, both dated In Articles 6 and 5 respectively 4 they 8 August 1994. However, neither law con- stipulate that the home Member State — tains any provisions for 'mutuelles régies the State in which the head office of the par le code de la mutualité'. insurance undertaking covering a risk is situated — must require every insurance undertaking for which authorisation is sought to adopt one of a list of forms set out in the directives. In the case of the French Republic, these forms include 'mutuelles régies par le code de la mutua- 8. By letter of 31 March 1995, the Com- lité'. mission informed France that in its opinion the transposition was incomplete. In its reply of 8 June 1995, France stated its intention of transposing the directives com- pletely and mentioned a draft law on the subject. 6. In Article 51(1) and Article 57(1), the directives provide as follows:
9. However, since the Commission was not 'Member States shall adopt the laws, subsequently notified that the two direc- regulations and administrative provisions tives had been transposed, it began the pre- necessary for their compliance with this litigation procedure in respect of both Directive no later than 31 December 1993 instruments, and sent the French Republic and bring them into force no later than a reasoned opinion on 5 March 1997. By 1 July 1994. They shall forthwith inform letter of 18 November 1997, France the Commission thereof. informed the Commission that it was taking the necessary steps to comply with the two directives. In this letter the French authorities pointed, inter alia, to the need to take account of the special features of the 'mutuelles'. These were not joint stock ...' companies, but associations of individuals, so that the insured persons should be regarded as members of the insurance 4 — These articles amended Article 8 of Directives 73/239 and company. The 'mutuelles' were non-profit- 79/267. making and were bound by the concept of
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solidarity. They operated as welfare institu- for a declaration of failure to fulfil obliga- tions for the mutual support of the mem- tions. bers, and as a result there could be no selection of the risks to be covered. Their insurance activities were indissolubly linked to health and social welfare. As supplementary insurance agencies, they were part of the public social security system.
13. The Commission claims that the Court should:
10. By letter of 3 December 1997, France announced that by the end of 1998 it would be enacting technical regulations and pro- visions on the supervision of direct insur- ance activities.
(1) declare that, by failing to adopt (or implement) all of the laws, regulations and administrative measures necessary in order to comply with Council Direc- 11. In two further letters of 11 February tive 92/49/EEC of 18 June 1992 on the 1998 and 11 March 1998, France informed coordination of laws, regulations and the Commission of the content of the draft administrative provisions relating to legislation. direct insurance other than life assur- ance and amending Directives 73/239/ EEC and 88/357/EEC (third non-life insurance directive) and with Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provi- sions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance 12. Since however the Commission has directive), and, in particular, by omit- received no further notification of the ting to transpose those directives as enactment of the planned transposition regards 'mutuelles régies par le code de measures, it has brought the present action la mutualité', the French Republic has
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failed to fulfil its obligations under the the reasoned opinion delivered by the EC Treaty and under those directives; Commission, it was not admissible.
16. In the oral procedure the Commission withdrew this objection, which concerns a (2) order the French Republic to pay the defective transposition of Directive 64/225/ costs. EEC. 5
17. The French Government also draws 14. The French Government claims that the attention to the difficulties involved in Court should: transposing the directives in question, because of the particular features of the 'mutuelles'.
(1) dismiss the Commission's application 18. During the oral procedure, the French to the extent that it relates to the Government placed on the file a report problem of reinsurance; prepared on its behalf in May 1999, deal- ing with the 'mutuelles' and Community law (the 'Rocard' report). This report emphasises the need to transpose the direc- tives as quickly as possible into French law. According to the information in the report, the transposition is to take place by the end (2) order the Commission to pay the costs. of 1999.
19. In its reply the Commission contends that the French Government's defence does 15. France pleads that the case is inadmis- not state the form of order sought by the sible. It claims that the Commission's plea defendant, within the meaning of Arti- that the French provisions applying to the reinsurance system of the 'mutuelles' were not compatible with Community law was 5 — Council Directive 64/225/EEC of 25 February 1964 on the presented for the first time in the applica- abolition of restrictions on freedom of establishment and freedom to provide services in respect of reinsurance and tion. Since this objection was not raised in retrocession (OJ, English Special Edition 1964, p. 131).
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cle 40(1)(c) of the Court's Rules of Proce- statement in support of this plea from its dure. The Commission, however, has not application. applied for judgment by default under Article 94(1).
22. As to the Commission's argument that the French Government's defence does not 20. In the view of the French Government, state the form of order sought by the the defence does state the form of order defendant, within the meaning of Arti- sought by the defendant in accordance with cle 40(1)(c) of the Court's Rules of Proce- the requirements of the Rules of Procedure. dure, 6 the first point to make is that in spite The form of order sought is that the of this, the Commission did not apply for a application be dismissed as inadmissible judgment by default under Article 94(1) of as far as the issue of reinsurance is con- the Rules of Procedure. 7 Moreover, the cerned. In its rejoinder, the French Republic Court is asked in the French Government's also submits an application for costs. defence to rule that the Commission's application is inadmissible to the extent that it deals with reinsurance.
C — Analysis 23. Contrary to the Commission's view, this must certainly be regarded as a state- ment of the form of order sought by the defendant, within the meaning of Arti- cle 40(1)(c) of the Rules of Procedure, because if the French Government's claim were to be upheld, the application would have to be dismissed, at least in part. Since I — Admissibility and the objection that the in addition no application was made for defence is formally defective judgment by default, the Court is free to decide the case in its judgment. The infor-
6 — Article 40(1) states: 'Within one month after service on him of the application, the defendant shall lodge a defence, 21. The plea of inadmissibility entered by stating: (a) ... France, on the ground that the Commission (b) the arguments of fact and law relied on; (c) the form of order sought by the defendant; introduced an additional plea in its appli- (d) ...'. cation which had not been submitted in the 7 — Article 94(1) states: 'If a defendant on whom an application initiating proceedings has been duly served fails to lodge a pre-litigation procedure, does not call for a defence to the application in the proper form within the time decision by the Court, because in the oral prescribed, the applicant may apply for judgment by default. procedure the Commission withdrew the
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mation required from the defendant is achieve the mutual recognition of author- moreover available in the rejoinder and isations and prudential control systems, from the statements made in the oral thereby making it possible to grant a single procedure. As regards any counter-submis- authorisation valid throughout the Com- sions which may be made, it should be munity and to apply the principle of super- borne in mind that the defendant does not vision by the home Member State. The deny that the directives have been incom- home Member State is to be responsible for pletely transposed. monitoring the financial health of insur- ance undertakings. The competent autho- rities of the Member States must therefore have at their disposal such means of super- vision as are necessary to ensure the orderly pursuit of business by insurance undertak- ings throughout the Community, whether carried on under the right of establishment II — Substance or the freedom to provide services. 8
24. The parties agree that the two direc- tives in question were not fully transposed within the set time-limit.
27. According to Article 6 of Directive 25. The measures so far introduced by 92/49 and Article 5 of Directive 92/96, France do not contain any provisions to these directives also apply to 'mutuelles ensure that the 'mutuelles' meet the régies par le code de la mutualité'. More- requirements of Community law. over, the home Member State — in this case, France — must require insurance undertakings for which authorisation is sought to limit their objectives to the business specified in the directives and operations directly arising therefrom, so 26. The essential aim and purpose of the that there is to be a clear legal separation directives in question is to complete the and, as regards the securities and reserve internal market in the direct insurance funds, a financial separation between the sector from the point of view both of the operations. The insurance businesses must right of establishment and of the freedom also submit a scheme of operations, they to provide services, to make it easier for must possess a minimum guarantee fund, insurance undertakings with head offices in and they must be run by persons of good the Community to cover risks situated within the Community. This is to be done by bringing about such harmonisation as is 8 — See the first, fifth, seventh and ninth recitals in the preamble to Directive 92/49 and the first, fifth, seventh and tenth essential, necessary and sufficient to recitals in the preamble to Directive 92/96.
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repute with appropriate professional quali- 29. Since it is clear from the foregoing that fications or experience. France has not completely fulfilled its obligations under Directives 92/49 and 92/96 within the prescribed time-limit, the Commission's application should be upheld.
28. However, rules of this sort have not yet been laid down in France for the 'mutuelles', as the French Government itself admits. The statement that legislation is in preparation does not alter the fact that Costs there is a failure to fulfil obligations under Community law. Even the 'Rocard' report, which was placed on the file during the oral procedure and which urges the rapid adop- 30. According to Article 69(2) of the Rules tion of such rules and anticipates that this of Procedure, the unsuccessful party is to be would be done at the end of 1999, does not ordered to pay the costs. The Commission invalidate the objection that the directives has sought an order for the French Repub- were not fully transposed within the time- lic to pay the costs. Since the French limit. What matters here is the legal Republic has been unsuccessful, it must be position at the time the action was brought. ordered to pay the costs.
D — Conclusion
3 1 . I therefore propose that the Court should rule as follows:
(1) By failing to adopt (or implement) all of the laws, regulations and administrative provisions necessary in order to comply with Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance directive), and Council Directive 92/96/EEC of 10 November
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1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive) and, in particular, by omitting to transpose those directives as regards 'mutuelles' régies par le code de la mutualité, the French Republic has failed to fulfil its obligations under the EC Treaty and under those directives;
(2) The French Republic is ordered to pay the costs.
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