Action brought on 25 January 2010 — European Commission v Kingdom of Belgium

(Case C-41/10)

2010/C 80/34

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Rozet and N. Yerrell, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

Pleas in law and main arguments

By the present action, the Commission claims that as the activities of the Belgian mutual companies in the field of supplementary sickness insurance are not part of the statutory social security scheme, they do not comply with the first and third non-life insurance directives. In so far as the mutual companies compete directly with the insurance companies in the market for supplementary sickness insurance, they should be subject to the same legal regime as those insurance companies. The applicant disputes in that regard the defendant’s assertion that the supplementary sickness insurance services offered by the mutual companies are covered by the exception provided for in Article 2(1)(d) of the First Directive and claims that the cover under the supplementary insurance cannot be treated in the same way as ‘insurance forming part of a statutory system of social security’.

The Commission maintains, first, that Article 6 of the First Directive requires that access to the activity of direct insurance be subject to a prior official authorisation sought from the competent authorities of the Member State in the territory of which the undertaking has its company seat. However, the Belgian mutual companies were not authorised in accordance with that provision in relation to their supplementary sickness insurance activities.

Secondly, the applicant alleges that the defendant infringed Article 8(1)(a) of the First Directive in so far as mutual companies are not included among the legal forms required for insurance companies in Belgium. Furthermore, the mutual companies are authorised to carry out a broad range of activities which are not directly connected with their insurance activities whereas Article 8(1)(b) lays down that the undertaking must limit its business activities to the business of insurance and operations directly arising therefrom to the exclusion of all other commercial business. The Belgian legislation also poses a problem with regard to Articler 8(1)(c) in so far as it provides that the undertaking must present a scheme of operations in accordance with Article 9 of the directive. However, no scheme of that type was presented by the mutual companies in relation to their supplementary sickness insurance activities. Finally, the Belgian mutual companies were not obliged to possess the minimum guarantee fund, contrary to the requirement set out in Article 8(1)(d) of the First Directive.

Thirdly, the Commission claims that, under Article 13 et seq. of the First Directive (in particular, Articles 16, 16a and 17) and Articles 15 and 20 to 22 of the Third Directive, the mutual companies must establish sufficient technical reserves in relation to their supplementary sickness insurance activities as well as a sufficient solvency margin in relation to all of their activities. However, in Belgium, the solvency margin for supplementary insurance provided by mutual companies was established only in 2002 and the method of calculating that margin differed from that provided for by the First Directive.

(1)  First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance.

(2)  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).