C-296/98
ECLI:EU:C:1999:538
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- Súdny dvor Európskej únie
- IČS
- 61998CC0296
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- eur-lex.europa.eu ↗
COMMISSION V FRANCK
OPINION OF ADVOCATE GENERAL SIEGBERT ALBER delivered on 28 October 1999 *
A — Introduction The legislation applicable
2. The relevant rules of the French Insur- ance Code provide as follows:
1. In this action for failure to fulfil a Treaty obligation the Commission claims that an administrative practice, based on statute, of the French supervisory agency for the According to Article L 310-8, insurance insurance industry, consisting in regularly undertakings marketing a standard form obtaining certain information concerning insurance contract for the first time in each type of insurance contract marketed France must inform the Minister for Eco- for the first time on French territory, is nomic and Financial Affairs in the manner incompatible with two insurance directives prescribed by order. 3 Article A 310-1 states which provide that such information, like, that the information defined in Article for example, terms and rates of insurance, L 310-8, first paragraph, is to be provided do not have to be submitted or approved. on a form drawn up in the French lan- The directives in question are Council guage, containing the information specified Directive 92/49/EEC of 18 June 1992 on in the annex to the article. 4 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 direc- tive) 1 and Council Directive 92/96/EEC of 10 November 1992 on the coordination of 3. This form, described as a 'marketing laws, regulations and administrative provi- information sheet' {fiche de commercialisa- sions relating to direct life assurance and tion) or 'questionnaire' [fiche sigiialétiqiie) amending Directives 79/267/EEC and asks a number of questions eliciting infor- 90/619/EEC (third life assurance direc- mation about the insurance undertaking tive). 2 and the type and particulars of the con- tract.
* Original language: German. 1 — OJ 1992 L 228, p. 1. 3 — Law No 94-5 of 4 January 1994. 2 — OJ 1992 L 360, p. 1. 4 — Decree of 8 August 1994.
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4. The Commission takes the view that the increases in premium rates except as part of requirement of systematic notification of general price-control systems.' information of this kind — of which it has been made aware by complaints from the insurance industry — is a breach of Direc- tives 92/49 and 92/96. The relevant rules of the two directives on which the Commis- sion relies state: Article 29 of Directive 92/49:
'Member States shall not adopt provisions Article 6(3), first, second and third subpar- requiring the prior approval or systematic agraphs, of Directive 92/49: notification of general and special policy conditions, scales of premiums, or forms and other printed documents which an insurance undertaking intends to use in its dealings with policyholders. They may only require non-systematic notification of those 'Nothing in this Directive shall prevent policy conditions and other documents for Member States from maintaining in force the purpose of verifying compliance with or introducing laws, regulations or admin- national provisions concerning insurance istrative provisions requiring approval of contracts, and that requirement may not the memorandum and articles of associa- constitute a prior condition for an under- tion and communication of any other taking's carrying on its business. documents necessary for the normal exer- cise of supervision.
...'
Member States shall not, however, adopt provisions requiring the prior approval or systematic notification of general and spe- cial policy conditions, scales of premiums Article 39(2) of Directive 92/49: and forms and other printed documents which an undertaking intends to use in its dealings with policyholders.
'The Member State of the branch or of provision of services shall not lay down provisions requiring the prior approval or Member States may not retain or introduce systematic notification of general and spe- prior notification or approval of proposed cial policy conditions, scales of premiums,
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technical bases used in particular for calcu- out that requirement constituting a prior lating scales of premiums and technical condition for an undertaking to carry on its provisions, forms and other printed docu- business. ments which an undertaking intends to use in its dealings with policyholders. For the purpose of verifying compliance with national provisions concerning assurance contracts, it may require an undertaking that proposes to carry on assurance busi- Nothing in this Directive shall prevent ness within its territory, under the right of Member States from maintaining in force establishment or the freedom to provide or introducing laws, regulations or admin- services, to effect only non-systematic noti- istrative provisions requiring approval of fication of those policy conditions and the memorandum and articles of associa- other printed documents without that tion and the communication of any other requirement constituting a prior condition documents necessary for the normal exer- for an undertaking to carry on its business.' cise of supervision.'
Article 5(3), first to third subparagraphs, of Article 29, first and second subparagraphs, Directive 92/96: of Directive 92/96:
'Member States shall not adopt provisions 'Member States shall not adopt provisions requiring the prior approval or systematic requiring the prior approval or systematic notification of general and special policy notification of general and special policy conditions, of scales of premiums, of the conditions, scales of premiums, technical technical bases used in particular for calcu- bases used in particular for calculating lating scales of premiums and technical scales of premiums and technical provisions provisions or of forms and other printed or forms and other printed documents documents which an assurance undertaking which an assurance undertaking intends intends to use in its dealings with policy- to use in its dealings with policyholders. holders.
Notwithstanding the first subparagraph, Notwithstanding the first subparagraph, for the sole purpose of verifying compliance for the sole purpose of verifying compliance with national provisions concerning actuar- with national provisions concerning actuar- ial principles, the Member State of origin ial principles, the home Member States may may require systematic communication of require systematic notification of the tech- the technical bases used in particular for nical bases used for calculating scales of calculating scales of premiums and techni- premiums and technical provisions, with- cal provisions, without that requirement
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constituting a prior condition for an under- by a letter of formal notice of 17 January taking to carry on its business.' 1997.
Article 39(2) of Directive 92/49: In its reply, dated 25 March 1997, the French Government expressed the view that the directives permitted post hoc sample checks on contracts. The informa- tion sought was different from that which could not be systematically notified in 'The Member State of the branch or of advance, according to the directives. Nor provision of services shall not lay down should the notification of the 'fiche signa- provisions requiring the prior approval or létique' be regarded as prior approval of systematic notification of general and spe- the policies concerned. However, the cial policy conditions, scales of premiums, French Government agreed to scrutinize technical bases used in particular for calcu- the Insurance Code for ambiguities. lating scales of premiums and technical provisions, forms and other printed docu- ments which an undertaking intends to use in its dealings with policyholders. For the purpose of verifying compliance with national provisions concerning assurance contracts, it may require an undertaking The Commission reiterated its objections in that proposes to carry on assurance busi- a reasoned opinion of 3 December 1997. ness within its territory, under the right of This opinion was not answered by the establishment or the freedom to provide French Government. The Commission services, to effect only non-systematic noti- therefore brought an action for failure to fication of those policy conditions and fulfil Treaty obligations. other printed documents without that requirement constituting a prior condition for an undertaking to carry on its business.'
6. The Commission claims that the Court should:
Procedure
— Declare that, by maintaining in force Articles L 310-8 and A 310-1 of the 5. The Commission began the prelitigation Code des Assurances (Insurance Code), procedure for breach of a Treaty obligation according to which
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(a) i n s u r a n c e u n d e r t a k i n g s a r e and required, when marketing a stan- dard form insurance policy for the first time in France, to notify it to the Minister for Economic and — order the French Republic to pay the Financial Affairs in accordance costs. with the conditions laid down by order issued by that Minister;
7. The Government of the French Republic asks the Court:
(b) the information referred to in the — to dismiss the application; first paragraph of Article L 310-8 is to take the form of an informa- tion sheet drawn up in the French language containing the informa- — to order the Commission to pay the tion mentioned in the annex to that costs. article,
B — Opinion
— the French Republic has failed to fulfil its obligations under the Treaty estab- 8. According to the Commissioir, the lishing the European Community, requirement of systematic notification under Articles 6(3), 29 and 39 of imposed by the French authorities is con- C o u n c i l D i r e c t i v e 9 2 / 4 9 / E E C of trary to the spirit and intention of Direc- 18 June 1992 on the coordination of tives 92/49 and 92/96. These directives arc laws, regulations and administrative based on the assumption that assurance provisions relating to direct insurance undertakings arc licensed and supervised in other than life assurance and amending their home Member State. 5 The competent Directives 73/239/EEC and 88/357/ supervisory agency is then supposed to EEC (third non-life insurance directive) inform the supervisory agency of the Mem- and under Articles 5(3), 29 and 39 of ber State in which the services are to be C o u n c i l D i r e c t i v e 9 2 / 9 6 / E E C of provided of the business to be conducted on 10 November 1992 on the coordina- its territory, 6so that the authorities of that tion of laws, regulations and adminis- trative provisions relating to direct life assurance and amending Directives 5 — Sec Article 34 of Directive 92/49 and Article 34 of Directive 79/267/EEC and 90/619/EEC (third 92/96. life assurance directive); 6 — See Article 35 of Directive 92/49 and Article 3.5 of Directive 92/96.
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State are fully aware of the activities of 10. In the Commission's view, the relevant assurance undertakings licensed to practise provisions of the directives unambiguously in other Member States. The systematic prohibit any prior approval or systematic registration of all new insurance products is notification of general and special insur- not therefore necessary for the purpose of ance policy conditions, scales of premiums, efficient, random post hoc checks. Such a forms and other documents which the practice should be regarded as an obstacle assurance undertakings intend to use in to foreign insurance undertakings and as their dealings with policyholders. Member being of the nature of concealed systematic States may only demand sporadic post hoc checks. notification of policy conditions and other documents, and this requirement may not constitute a prior condition for the conduct of business by an undertaking.
9. The Commission takes the view that the practice in question is contrary to the tenor and purpose of Directives 92/49 and 92/96. It relies, in this connection, on the 20th and 11. The French Government replies that 21st recitals in the preamble to Directive the information sought on the 'fiche signa- 92/96, part of which reads as follows: létique' is not part of general policy condi- tions, the systematic notification of which is prohibited. The concept of 'general policy conditions' is not defined in the directives. In legal doctrine, these terms are not the same as the contents of the 'fiche signalétique'. Moreover, a questionnaire of this kind is necessary in order to perform the ordinary checks required by the direc- '(21) Whereas the Member States must be tive. In any event, general terms of insur- able to ensure that the assurance products ance are monitored in France after policies and contract documents used, under the are taken out, by means of random checks. right of establishment or the freedom to provide services, to cover commitments within their territories comply with such specific legal provisions protecting the general good as are applicable; whereas the systems of supervision to be employed must meet the requirements of an internal market but their employment may not constitute a prior condition for carrying on insurance business; whereas, from this Finally, the French Government gives standpoint, systems for the prior approval notice of an amendment to the Code des of policy conditions do not appear to be Assurances. Article L 310-8 is to be mod- justified ...'. ified to require insurance undertakings to
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inform the Ministry for Economic and that, in ordinary legal language, 'general Financial Affairs within three months of policy conditions' are not the same thing as placing a new type of insurance contract on information to be notified to a public the market. authority by means of a questionnaire. It is not therefore necessary to establish a more precise definition of the expression 'general policy conditions'.
12. In the oral procedure it was stated that this amendment had already been intro- duced. The Commission responded by stating that the systematic requirement for subsequent notification was likewise incompatible with the directives.
15. Moreover, the action brought by the Commission is for a declaration by the Court, not on the question whether the questionnaire or marketing information sheet is to be regarded as a demand to notify general policy conditions, something which is expressly prohibited, but on the Appraisal question whether the obligation to notify every new type of insurance policy by means of a form is an obstacle to insurance business akin to an obligation to notify general policy conditions systematically.
13. The only relevant legal question to be determined here is whether the systematic registration by the French supervisory authority of any new type of insurance contract, either before or immediately after it has been introduced, infringes Directives 92/49 and 92/96.
16. Seen in that light, the Commission's application should be granted. Directives 92/49 and 92/96 arc to be regarded as the final stage in a process of liberalisation in 14. The French Government is correct in the insurance sector, the object and purpose stating that the directive does not define the of which is to create an internal market in concept of 'general policy conditions'. For insurance. An essential element of this the purposes of this case it can be accepted internal market is the removal and lasting
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prevention of obstacles to the business authorities of the Member States concerned activity of insurance undertakings across to be informed of the activities of the the internal frontiers of the Community. insurance undertakings and thus be enabled The nature of the obstacles to be prohibited to obtain access to the necessary docu- is repeatedly described, in very similar ments. This kind of information is, how- terms, in the two directives. 7 ever, already supplied by the authorities to one another, under Directives 92/49 and 92/96. 9 The French Government's argu- ment that effective supervision cannot be achieved without systematic registration of the relevant information by means of the 'fiche signalétique' must therefore be 17. It is in fact contrary to the spirit and rejected. content of the directives for the Member States to create obstacles to the economic activities liberalised by the directives if their effects are equivalent to those expressly forbidden, without its being necessary to determine definitively whether the mea- sures introduced by the Member States are caught by the terms of the prohibitions set 19. In conclusion, the systematic require- out in the directives. From an overview of ment for the return of marketing informa- the related rules in Articles 6, 29 and 39 of tion sheets or questionnaires must be Directive 92/49 and in Articles 5, 29 and regarded as a disproportionate burden 39 of Directive 92/96 it is clear that the which conflicts with the provisions of Member States did not want systematic Directives 92/49 and 92/96. notification of all types of contract as a prior condition for the conduct of business by an insurance undertaking on the terri- tory of another Member State. The govern- ing principle for the authorisation and supervision of insurance undertakings is the home Member State principle, 8 whereby the authorising Member State does not completely forfeit control, for instance over compliance with its own law Costs of contract.
20. According to Article 69(2) of the Rules of Procedure, the unsuccessful party is to 18. However, for the purpose of such bear the costs of the case. In view of the control it is sufficient for the competent conclusion stated above, the French Repub- lic should be ordered to pay the costs. 7 — See the provisions cited in footnote 4. 8 — See Articles 4, 5 and 6 of Directive 92/49 and Articles 3, 4 and 5 of Directive 92/96. 9 — See Article 35 of the directives.
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C — Conclusion
21. In view of the considerations set out above, I propose that the Court should rule as follows:
(1) By maintaining in force Articles L 310-8 and A 310-1 of the Code des Assurances (Insurance Code), according to which
(a) insurance undertakings are required, when marketing a standard form insurance contract for the first time in France, to notify it to the Minister for Economic and Financial Affairs in accordance with the conditions laid down by order issued by that Minister;
(b) the information referred to in the first paragraph of Article L 310-8 is to take the form of an information sheet drawn up in the French language containing the information mentioned in the annex to that article,
the French Republic has failed to fulfil its obligations under the Treaty establishing the European Community, under Articles 6(3), 29 and 39 of 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 under Articles 5(3), 29 and 39 of Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EĽC and 90/619/EEC (third life assurance directive).
(2) The French Republic is ordered to pay the costs.
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