Keywords
Summary

Keywords

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1 . COMPETITION - COMMUNITY RULES - SCOPE OF THE RULES RATIONE MATERIAE - INSURANCE - INCLUSION - PROBLEMS SPECIFIC TO CERTAIN ACTIVITIES - RECOURSE TO EXEMPTION

( EEC TREATY, ARTS 85 AND 86; REGULATION NO 17 OF THE COUNCIL )

2 . COMPETITION - COMMUNITY RULES - APPLICATION IN THE LIGHT OF THE SUPERVISION OF CERTAIN ACTIVITIES EXERCISED AT NATIONAL LEVEL - NOT PERMISSIBLE

( EEC TREATY, ARTS 85 AND 86 )

3 . COMPETITION - AGREEMENTS, DECISIONS AND CONCERTED PRACTICES - DECISIONS OF ASSOCIATIONS OF UNDERTAKINGS - RECOMMENDATION INTENDED TO COORDINATE THE CONDUCT OF THE ASSOCIATION' S MEMBERS ON THE INSURANCE MARKET

( EEC TREATY, ART . 85 ( 1 )*)

4 . COMPETITION - AGREEMENTS, DECISIONS AND CONCERTED PRACTICES - ADVERSE EFFECT ON COMPETITION - CRITERIA FOR ASSESSMENT - RECOMMENDATION OF AN ASSOCIATION OF INSURERS LAYING DOWN AN INCREASE IN PREMIUMS - RECOMMENDATION HAVING THE OBJECT OF DISTORTING COMPETITION

( EEC TREATY, ART . 85 ( 1 )*)

5 . COMPETITION - AGREEMENTS, DECISIONS AND CONCERTED PRACTICES - EFFECT ON TRADE BETWEEN MEMBER STATES - RECOMMENDATION OF AN ASSOCIATION OF INSURERS LAYING DOWN AN INCREASE IN PREMIUMS IN ONE MEMBER STATE - ACCESS TO THE NATIONAL MARKET RENDERED MORE DIFFICULT

( EEC TREATY, ART . 85 ( 1 )*)

6 . COMPETITION - AGREEMENTS, DECISIONS AND CONCERTED PRACTICES - PROHIBITION - EXEMPTION - RECOMMENDATION OF AN ASSOCIATION OF INSURERS LAYING DOWN A GENERAL AND ACROSS-THE-BOARD INCREASE IN PREMIUMS - NO NECESSITY WITH REGARD TO THE INTENDED OBJECTIVE OF RESTORING SOUND FINANCIAL CONDITIONS - COMMISSION' S DISCRETION

( EEC TREATY, ART . 85 ( 3 )*)

Summary

1 . WHERE THE TREATY INTENDED TO REMOVE CERTAIN ACTIVITIES FROM THE AMBIT OF THE COMPETITION RULES IT MADE AN EXPRESS DEROGATION TO THAT EFFECT . IT DID SO IN ARTICLE 42 OF THE EEC TREATY IN RELATION TO THE PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS . NO SUCH PROVISION EXCLUDING THE APPLICATION OF THE COMPETITION RULES OR MAKING THEIR APPLICATION DEPENDENT UPON A COUNCIL DECISION EXISTS IN RESPECT OF INSURANCE . CONSEQUENTLY, THE COMMUNITY COMPETITION SYSTEM, AS SET OUT IN PARTICULAR IN ARTICLES 85 AND 86 OF THE EEC TREATY AND IN THE PROVISIONS OF REGULATION NO 17, APPLIES WITHOUT RESTRICTION TO THE INSURANCE INDUSTRY .

THAT CONCLUSION IN NO WAY IMPLIES THAT COMMUNITY COMPETITION LAW DOES NOT PERMIT THE SPECIAL CHARACTERISTICS OF CERTAIN BRANCHES OF THE ECONOMY TO BE TAKEN INTO ACCOUNT . IT IS FOR THE COMMISSION, WITHIN THE FRAMEWORK OF ARTICLE 85 ( 3 ) OF THE EEC TREATY TO TAKE ACCOUNT OF THE PARTICULAR NATURE OF DIFFERENT BRANCHES OF THE ECONOMY AND THE PROBLEMS PECULIAR TO THEM .

2 . WHILST IT IS TRUE THAT A MEMBER STATE MAY ESTABLISH A CLOSE LINK BETWEEN THE APPLICATION OF ITS OWN COMPETITION RULES AND THE SUPERVISION IT EXERCISES OVER THE INSURANCE INDUSTRY, COMMUNITY LAW DOES NOT MAKE THE IMPLEMENTATION OF THE PROVISIONS OF ARTICLES 85 AND 86 OF THE EEC TREATY DEPENDENT UPON THE MANNER IN WHICH THE SUPERVISION OF CERTAIN AREAS OF ECONOMIC ACTIVITY IS ORGANIZED BY NATIONAL LEGISLATION .

3 . A RECOMMENDATION WHICH EMANATES FROM AN ASSOCIATION OF UNDERTAKINGS AND WHICH, REGARDLESS OF ITS LEGAL STATUS, IS AN ACCURATE STATEMENT OF ITS POLICY OF COORDINATING THE CONDUCT OF ITS MEMBERS ON THE INSURANCE MARKET, CONSTITUTES A DECISION OF AN ASSOCIATION OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE EEC TREATY .

4 . AS REGARDS THE APPLICATION OF THE COMPETITION RULES CONTAINED IN THE EEC TREATY, IT IS UNNECESSARY TO CONSIDER THE ACTUAL EFFECTS OF AN AGREEMENT OR A DECISION OF AN ASSOCIATION OF UNDERTAKINGS IF IT IS APPARENT THAT THEIR OBJECT IS TO PREVENT, RESTRICT OR DISTORT COMPETITION . THAT IS SO WITH REGARD TO A RECOMMENDATION MADE BY AN ASSOCIATION OF INSURERS AND IMPOSING UPON ITS MEMBERS A GENERAL AND ACROSS-THE-BOARD INCREASE IN PREMIUMS IN THE BRANCH IN QUESTION .

5 . THE REQUIREMENT THAT AN INSURANCE COMPANY WHICH HAS ITS HEAD OFFICE IN ONE MEMBER STATE BUT WHICH SEEKS TO PURSUE ITS BUSINESS IN ANOTHER MEMBER STATE MUST SET UP A BRANCH IN THE LATTER STATE DOES NOT HAVE THE EFFECT OF EXCLUDING THE EXISTENCE OF TRADE BETWEEN MEMBER STATES IN INSURANCE SERVICES . THE FACT THAT THE BRANCH ALONE IS AFFECTED BY A RECOMMENDATION TO INCREASE PREMIUMS DOES NOT EXCLUDE THE POSSIBILITY THAT THE FINANCIAL RELATIONSHIP BETWEEN THE BRANCH AND THE PARENT COMPANY MIGHT BE AFFECTED BY THE RECOMMENDATION, REGARDLESS OF THE DEGREE OF LEGAL INDEPENDENCE OF THE BRANCH . IT IS FOR THAT REASON THAT A RECOMMENDATION OF AN ASSOCIATION OF INSURERS LAYING DOWN AN INCREASE IN PREMIUMS, EVEN IF RESTRICTED TO THE TERRITORY OF ONE MEMBER STATE, IS CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES .

IN ADDITION, A GENERAL AND ACROSS-THE-BOARD INCREASE IN PREMIUMS WHICH IS NOT JUSTIFIED BY THE INDIVIDUAL POSITION OF THE UNDERTAKINGS CONCERNED IS CAPABLE OF AFFECTING THE POSITION OF FOREIGN INSURERS WHO ARE ABLE TO OFFER, EVEN BY MEANS OF THEIR BRANCHES, A MORE COMPETITIVE SERVICE . THE RECOMMENDATION THEREBY TENDS TO MAKE ACCESS TO THE GERMAN MARKET MORE DIFFICULT .

6 . BY TAKING THE VIEW THAT THE DISADVANTAGES ARISING FROM A RECOMMENDATION OF AN ASSOCIATION OF INSURERS LAYING DOWN A GENERAL AND ACROSS-THE-BOARD INCREASE IN INSURANCE PREMIUMS IN A GIVEN BRANCH WERE GREATER THAN THE ADVANTAGES AND THAT, CONSEQUENTLY, THERE WAS NO IMPROVEMENT IN THE PROVISION OF SERVICES IN THE INSURANCE MARKET IN QUESTION, THE COMMISSION DID NOT EXCEED THE LIMITS OF THE DISCRETION VESTED IN IT IN CONNECTION WITH THE APPLICATION OF ARTICLE 85 ( 3 ) OF THE EEC TREATY .

BY ENCOMPASSING NOT ONLY COVER FOR THE EXPENSES RESULTING FROM INSURANE CLAIMS BUT ALSO THE OPERATING COSTS OF THE INSURANCE COMPANIES, WHEREAS THOSE COSTS OF THE DIFFERENT COMPANIES VARIED CONSIDERABLY, THE INCREASE IN PREMIUMS, BY ITS GENERAL AND UNDIFFERENTIATED NATURE, WAS CAPABLE OF RESULTING IN RESTRICTIONS ON COMPETITION GOING BEYOND WHAT WAS NECESSARY TO RESTORE SOUND FINANCIAL CONDITIONS IN THE BRANCH CONCERNED .