61991J0245

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1. Competition ° Community rules ° Obligations of the Member States ° Rules intended to reinforce existing agreements, decisions or concerted practices ° Definition

(EEC Treaty, Arts 5 and 85)

2. Competition ° Community rules ° Obligations of the Member States ° Rules preventing insurance companies and brokers from granting financial advantages to policyholders or beneficiaries of policies ° Compatibility

(EEC Treaty, Art. 3(f), second para. of Art. 5 and Art. 85)

1. Although Article 85 of the Treaty, in itself, relates only to the conduct of undertakings and does not cover legislative measures or regulations adopted by Member States, the fact nevertheless remains that that article, read in conjunction with Article 5 of the Treaty, requires the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case where a Member State required or favoured the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforced their effects or deprived its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere.

2. Article 3(f), the second paragraph of Article 5 and Article 85 of the Treaty do not, in the absence of any conduct of the kind referred to in Article 85(1) of the Treaty on the part of undertakings, preclude State rules which prohibit insurance companies, whether or not they operate through brokers, and brokers themselves from granting financial advantages to policyholders or the beneficiaries of policies.

In Case C-245/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arrondissementsrechtbank Arnhem, Netherlands, for a preliminary ruling in the criminal proceedings pending before that court against

Ohra Schadeverzekeringen NV

on the interpretation of Article 3(f), the second paragraph of Article 5 and Article 85(1) of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Ohra Schadeverzekeringen NV, by Martijn Van Empel, of the Amsterdam Bar, and E.P.R. Sutorius, of the Arnhem Bar,

° the Netherlands Government, by B.R. Bot, General Secretary in the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by Berend Jan Drijber and Ben Smulders, of its Legal Service, acting as Agents,

having regard to the replies given to the written questions put by the Court:

° for Ohra Schadeverzekeringen NV, by Martijn Van Empel,

° for the Belgian Government, by Robert Hoebaer, Directeur d' Administration, Ministry of Foreign Affairs, External Trade and Development Cooperation, acting as Agent,

° for the Danish Government, by Joergen Molde, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

° for the German Government, by Ernst Roeder, Ministerialrat in the Federal Ministry of Economic Affairs, and Claus-Dieter Quassowski, Regierungsdirektor in that Ministry, acting as Agents,

° for the Greek Government, by Vassileios Kondolainos, Assistant Legal Adviser, State Legal Council, and Maria Bosdeki, representative of the State Legal Council, acting as Agents,

° for the Spanish Government, by Alberto Navarro González, Miguel Bravo-Ferrer Delgado and Gloria Calvo Díaz, State Attorneys in the Department for Community Matters, acting as Agents,

° for the French Government, by Edwige Belliard, Sous-Directeur du Droit Economique, Ministry of Foreign Affairs, and Catherine de Salins, Adviser in that Ministry, acting as Agents,

° for the Irish Government, by Michael A. Buckley, Chief State Solicitor, acting as Agent, assisted by John Cook SC, and Jennifer Payne, Barrister-at-Law, acting as Agent,

° for the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Department for Legal Affairs, Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato,

° for the Netherlands Government, by A. Bos, Legal Adviser, Ministry of Foreign Affairs, acting as Agent,

° for the Portuguese Government, by Luis Inez Fernandes, Director of the Legal Department, Directorate General for the European Communities, Ministry of Foreign Affairs, and João Alvaro Sousa Fialho Lopes, Deputy-Director General, Directorate General for Competition and Prices, Ministry of Commerce, acting as Agents,

° for the United Kingdom, by Lucinda Hudson, of the Treasury Solicitor' s Department, acting as Agent, and Stephen Richards and Nicholas Paines, Barristers,

° for the Commission of the European Communities, by Berend Jan Drijber and Ben Smulders, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Ohra Schadeverzekeringen NV, the German, Greek, Spanish, French, Irish and Italian Governments, the Netherlands Government, represented by J.W. de Zwaan, Assistant Legal Adviser, Ministry of Foreign Affairs, acting as Agent, the United Kingdom and the Commission, at the hearing on 27 April 1993,

after hearing the Opinion of the Advocate General at the sitting on 14 July 1993,

gives the following

Judgment

1 By order of 5 September 1991, received at the Court on 27 September 1991, the Arrondissementsrechtbank (District Court), Arnhem, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 3(f), the second paragraph of Article 5 and Article 85(1) of the Treaty in order to determine whether State rules which had the effect of restricting competition between economic agents were compatible with those provisions.

2 Those questions were raised in proceedings brought by the Officier van Justitie in het Arrondissement Arnhem (Public Prosecutor for the Arnhem District) against Ohra Schadeverzekeringen NV ("Ohra") for infringement of the Nederlands insurance regulations which prohibit insurance undertakings from granting discounts to their clients.

3 It is apparent from the documents submitted by the national court that Ohra is an insurance company that is active in the branches of civil liability insurance, health insurance, pensions insurance and life assurance. Ohra is what is known as a "direct writer", namely one which offers its services direct to the public without going through brokers. In order to reach its clients, Ohra announced in advertisements that it would grant certain advantages to anyone who concluded with it one or more contracts of insurance or to the beneficiaries under the policies. In the present case, it undertook not to invoice them for the costs relating to the conclusion of the contracts. It also promised to offer policyholders or the beneficiaries a credit card free of charge or to grant them a rebate on the price of that card. It is common ground that those advantages were actually granted in several instances.

4 Insurance companies operating in the Netherlands are prohibited from granting rebates or other financially quantifiable advantages by Article 16(1) of the Wet Assurantiebemiddelingsbedrijf (Law on insurance agencies) of 7 February 1991 (Staatsblad 1991, 78), which provides that:

"It shall be prohibited to allow, grant or promise, directly or indirectly, in connection with an insurance policy, a commission, refud of commission or any other financially quantifiable advantage to persons other than the intermediary to whom the insurance portfolio belongs".

5 Furthermore, the Wet op de Economische Delicten (Law on economic offences) imposes the penalty of imprisonment for a maximum term of six months or a fine or HFL 10 000 on any person who infringes Article 16 of the said Law; other penalties, such as the total or partial cessation of the undertaking' s operations may be also be imposed on offenders.

6 Before the national court, Ohra contended that those provisions were contrary to Articles 3(f), 5 and 85 of the Treaty.

7 Considering that the decision to be given in the proceedings depended on the interpretation of those provisions of the Treaty, the Arrondissementsrechtbank referred the following questions to the Court:

"1. Are Articles 85 and 86 of the EEC Treaty in conjunction with Articles 3(f) and 5 or any other provisions of that Treaty to be interpreted as precluding the application of national legislation which expressly prohibits the allowance, grant, or promise, directly or indirectly in connection with an insurance policy, of a commission, refund of commission or any other financially quantifiable advantage to persons other than the intermediary to whom the insurance portfolio belongs, inasmuch as such legislation may be construed as prohibiting competition by means of financial advantages which may be given to those taking out insurance or persons for whose benefit the insurance was taken out?

2. Is the answer to the first question affected by the fact that the prohibition described above applies

(a) exclusively to insurance agents (in which case it should be noted that the abovementioned national legislation forms part of the national rules governing insurance agents' activities);

(b) also to insurers who work or usually work together with insurance agents;

(c) also to insurers who do not work together with insurance agents (known as 'direct writers' )?"

8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

9 The two questions submitted by the Arrondissementsrechtbank Arnhem seek essentially to determine whether Article 3(f), the second paragraph of Article 5 and Article 85(1) of the Treaty preclude State rules which prohibit insurance companies, whether or not they operate through brokers, and brokers themselves from granting financial advantages to policyholders or beneficiaries of policies.

10 It must be noted at the outset that Article 85 of the Treaty, read in isolation, relates only to the conduct of undertakings and does not cover legislative measures or regulations adopted by Member States. The Court has also consistently held that Article 85, read in conjunction with Article 5 of the Treaty, requires the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings. By virtue of the same case-law, such is the case where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects or deprives its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere (see Case 267/86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16).

11 It must first be observed in that regard that the Netherlands rules on insurance agencies neither require nor favour the conclusion of any unlawful agreement, decision or concerted practice by insurance intermediaries, since the prohibition which they lay down is self-sufficient.

12 It must then be determined whether the rules have the effect of reinforcing an anti-competitive agreement. In that regard, it is common ground that the rules at issue were not preceded by any agreement in the sectors to which they relate.

13 Finally, it must be observed that the rules themselves prohibit the grant of financial advantages to policyholders and beneficiaries of policies and do not delegate to private traders responsibility for taking decisions affecting the economic sphere.

14 It follows that rules like those at issue in the main proceedings do not fall within the categories of State rules which, according to the case-law of the Court of Justice, undermine the effectiveness of Article 3(f), the second paragraph of Article 5 and Article 85 of the Treaty.

15 Accordingly, it must be stated in reply to the questions submitted by the national court that Article 3(f), the second paragraph of Article 5 and Article 85 of the EEC Treaty do not, in the absence of any link with conduct on the part of undertakings of the kind referred to in Article 85(1) of the Treaty, preclude State rules which prohibit insurance companies, whether or not they operate through brokers, and brokers themselves from granting financial advantages to policyholders or the beneficiaries of policies.

Costs

16 The costs incurred by the Belgian, Danish, German, Greek, Spanish, French, Irish, Italian, Netherlands, Portuguese and United Kingdom Governments, and by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. Since, for the parties to the main proceedings, these proceedings are a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Arrondissementsrechtbank, Arnhem, by order of 5 September 1991, hereby rules:

Article 3(f), the second paragraph of Article 5 and Article 85 of the EEC Treaty do not, in the absence of any link with conduct on the part of undertakings of the kind referred to in Article 85(1) of the Treaty, preclude State rules which prohibit insurance companies, whether or not they operate through brokers, and brokers themselves from granting financial advantages to policyholders or the beneficiaries of policies.