Keywords
Summary

Keywords

1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Restrictions

(Arts 43 EC and 49 EC)

2. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance other than life assurance – Directive 92/49

(Council Directive 92/49, Arts 6, 29 and 39)

3. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance other than life assurance – Directive 92/49

(Council Directive 92/49, Art. 9)

Summary

1. The obligation, imposed by the law of a Member State, to provide coverage for third‑party motor vehicle liability insurance, incumbent on insurance undertakings, including those which have their head office in another Member State, but which pursue their business in the first Member State, restricts the freedom of establishment and the freedom to provide services enshrined in Articles 43 EC and 49 EC. Such a measure affects the relevant operators’ access to the market, in particular where it subjects insurance undertakings not only to an obligation to cover any risks which are proposed to them, but also to requirements to moderate premium rates. Inasmuch as it involves changes and costs for those undertakings, the obligation to contract renders access to the market of that Member State less attractive and, if they obtain access to that market, reduces the ability of the undertakings concerned to compete effectively, from the outset, against undertakings traditionally established there.

However, that obligation is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary to attain it. Thus, the very aim of obligatory third‑party liability motor insurance is to ensure that victims of road traffic accidents are compensated. That social protection objective, which amounts, essentially, to ensuring that such victims will be adequately compensated, can be taken into account as an overriding imperative relating to the public interest. On the other hand, it is not indispensable, with regard to the proportionality criterion, that the restrictive measure laid down by the authorities of a Member State should correspond to a view shared by all the Member States concerning the means of protecting the legitimate interest at issue. Therefore, the fact that some Member States have chosen to establish a different system to ensure that every vehicle owner is able to take out third‑party liability motor insurance for a premium that is not excessive does not indicate that the obligation to contract goes beyond what is necessary to attain the objectives pursued. Lastly, with regard to the criterion of proportionality, the obligation to insure does not prevent insurance undertakings from calculating a higher premium for a policyholder domiciled in an area characterised by a significant number of accidents than for a policyholder domiciled in an area where the risk is not so high.

(see paras 67, 70-71, 74-75, 83, 85, 91, 93)

2. Articles 6, 29 and 39 of Directive 92/49, on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non‑life insurance Directive), prohibit Member States from introducing a system of prior approval or systematic notification of scales of premiums that an insurance undertaking intends to use in their territory in its dealings with policyholders. Such is not the case with a national law which,

- first, does not introduce a system of prior approval or systematic approval of rates,

- second, does not oblige insurance undertakings to base their premium rates on the market average but, quite to the contrary, provides that insurance undertakings are to calculate their premium rates according to their technical bases, while stating that, if those bases are not available, the insurance undertakings can use market statistics, and,

- third, to the extent that it is likely to have repercussions on premium rates in that they outline a technical framework within which insurance undertakings must calculate their premiums, it introduces a restriction on the freedom to set rates which is not prohibited by Directive 92/49. A full harmonisation in the field of non‑life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature.

(see paras 100, 103-106)

3. Article 9 of Directive 92/49, on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non‑life insurance Directive), defines in a non‑exhaustive way the scope of home Member State supervision, stating that financial supervision is to ‘include’ the state of solvency and the establishment of technical provisions. Nevertheless, that provision cannot be interpreted as meaning that the Community legislature intended that the home Member State should have exclusive supervisory competence extending to the commercial conduct of insurance undertakings. It follows that that provision does not preclude the possibility of controls being exercised by the host Member State over the detailed rules according to which insurance undertakings, operating in that Member State under the freedom of establishment or the freedom to provide services, calculate their insurance premiums, together with the imposition of penalties.

(see paras 109, 116-117)