Keywords
Summary

Keywords

1 . ACTION FOR DECLARATION OF FAILURE BY MEMBER STATES TO FULFIL OBLIGATIONS - COMMISSION ' S RIGHT OF ACTION - PROPOSAL WHOSE ADOPTION WOULD TERMINATE THE INFRINGEMENT PENDING BEFORE THE COUNCIL - NO EFFECT

( EEC TREATY , ARTS 155 AND 169 )

2 . FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT - FREEDOM TO PROVIDE SERVICES - DELIMITATION - UNDERTAKING MAINTAINING A PERMANENT PRESENCE IN THE MEMBER STATE IN WHICH THE SERVICES ARE PROVIDED - UNDERTAKING WHOSE ACTIVITY IS ENTIRELY OR PRINCIPALLY DIRECTED TOWARDS THE TERRITORY OF ANOTHER MEMBER STATE - APPLICATION OF THE RULES OF THE TREATY RELATING TO THE RIGHT OF ESTABLISHMENT

( EEC TREATY , ARTS 52 AND 59 )

3 . FREEDOM TO PROVIDE SERVICES - RESTRICTIONS - PROHIBITION - DIRECT EFFECT

( EEC TREATY , ARTS 59 AND 60 )

4 . FREEDOM TO PROVIDE SERVICES - RESTRICTIONS JUSTIFIED IN THE PUBLIC INTEREST - PERMISSIBILITY - CONDITIONS

( EEC TREATY , ARTS 59 AND 60 )

5 . FREEDOM TO PROVIDE SERVICES - INSURANCE UNDERTAKINGS - REQUIREMENT OF AN AUTHORIZATION - LAWFULNESS - CONDITIONS

( EEC TREATY , ARTS 59 AND 60 , COUNCIL DIRECTIVES 73/239 AND 79/267 )

6 . FREEDOM TO PROVIDE SERVICES - INSURANCE UNDERTAKINGS - REQUIREMENT OF A PERMANENT ESTABLISHMENT - UNLAWFULNESS

( EEC TREATY , ARTS 59 AND 60 )

7 . COMMUNITY LAW - INTERPRETATION - METHODS

8 . FREEDOM TO PROVIDE SERVICES - INSURANCE UNDERTAKINGS - CO-INSURANCE - LEADING INSURER - REQUIREMENT OF A PERMANENT ESTABLISHMENT - UNLAWFULNESS - REQUIREMENT OF AUTHORIZATION - UNLAWFULNESS

( EEC TREATY , ARTS 59 AND 60 ; COUNCIL DIRECTIVE 78/473 )

Summary

1 . IN CARRYING OUT THE TASK , CONFERRED ON IT BY ARTICLE 155 OF THE TREATY , TO ENSURE THAT THE PROVISIONS OF THE TREATY ARE APPLIED , IT IS OPEN TO THE COMMISSION TO BRING AN ACTION UNDER ARTICLE 169 IF IT CONSIDERS THAT A MEMBER STATE HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY . THE MERE FACT THAT A PROPOSAL FOR A LEGISLATIVE MEASURE , WHICH IF ADOPTED AND TRANSPOSED INTO NATIONAL LAW WOULD TERMINATE THE INFRINGEMENTS ALLEGED BY THE COMMISSION , HAS ALREADY BEEN SUBMITTED TO THE COUNCIL DOES NOT PREVENT THE COMMISSION FROM BRINGING SUCH AN ACTION .

2 . AN INSURANCE UNDERTAKING OF ANOTHER MEMBER STATE WHICH MAINTAINS A PERMANENT PRESENCE IN THE MEMBER STATE IN WHICH IT PROVIDES SERVICES COMES WITHIN THE SCOPE OF THE PROVISIONS OF THE TREATY ON THE RIGHT OF ESTABLISHMENT EVEN IF THAT PRESENCE HAS NOT TAKEN THE FORM OF A BRANCH OR AGENCY , BUT CONSISTS MERELY OF AN OFFICE MANAGED BY THE UNDERTAKING ' S OWN STAFF OR BY A PERSON WHO IS INDEPENDENT BUT AUTHORIZED TO ACT ON A PERMANENT BASIS FOR THE UNDERTAKING , AS WOULD BE THE CASE WITH AN AGENCY . SUCH AN INSURANCE UNDERTAKING CANNOT THEREFORE AVAIL ITSELF OF THE PROVISIONS RELATING TO FREEDOM TO PROVIDE SERVICES WITH REGARD TO ITS ACTIVITIES IN THE MEMBER STATE IN QUESTION .

SIMILARLY , A MEMBER STATE CANNOT BE DENIED THE RIGHT TO TAKE MEASURES TO PREVENT THE EXERCISE BY A PERSON PROVIDING SERVICES , WHOSE ACTIVITY IS ENTIRELY OR PRINCIPALLY DIRECTED TOWARDS ITS TERRITORY , OF THE FREEDOM GUARANTEED BY ARTICLE 59 FOR THE PURPOSE OF AVOIDING THE PROFESSIONAL RULES OF CONDUCT WHICH WOULD BE APPLICABLE TO HIM IF HE WERE ESTABLISHED WITHIN THAT STATE . SUCH A SITUATION MAY BE SUBJECT TO JUDICIAL CONTROL UNDER THE PROVISIONS OF THE CHAPTER RELATING TO THE RIGHT OF ESTABLISHMENT AND NOT OF THAT ON THE PROVISION OF SERVICES .

3 . ARTICLES 59 AND 60 OF THE TREATY BECAME DIRECTLY APPLICABLE ON THE EXPIRY OF THE TRANSITIONAL PERIOD , AND THEIR APPLICABILITY WAS NOT CONDITIONAL ON THE HARMONIZATION OR THE COORDINATION OF THE LAWS OF THE MEMBER STATES . THOSE ARTICLES REQUIRE THE REMOVAL NOT ONLY OF ALL DISCRIMINATION AGAINST A PROVIDER OF A SERVICE ON THE GROUNDS OF HIS NATIONALITY BUT ALSO ALL RESTRICTIONS ON HIS FREEDOM TO PROVIDE SERVICES IMPOSED BY REASON OF THE FACT THAT HE IS ESTABLISHED IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED .

4 . THE FREEDOM TO PROVIDE SERVICES , AS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY , MAY BE RESTRICTED ONLY BY PROVISIONS WHICH ARE JUSTIFIED BY THE GENERAL GOOD AND WHICH ARE APPLIED TO ALL PERSONS OR UNDERTAKINGS OPERATING WITHIN THE TERRITORY OF THE STATE IN WHICH THE SERVICE IS PROVIDED IN SO FAR AS THAT INTEREST IS NOT SAFEGUARDED BY THE PROVISIONS TO WHICH THE PROVIDER OF A SERVICE IS SUBJECT IN THE MEMBER STATE OF HIS ESTABLISHMENT . IN ADDITION , SUCH REQUIREMENTS MUST BE OBJECTIVELY JUSTIFIED BY THE NEED TO ENSURE THAT PROFESSIONAL RULES OF CONDUCT ARE COMPLIED WITH AND THAT THE INTERESTS WHICH SUCH RULES ARE DESIGNED TO SAFEGUARD ARE PROTECTED .

5 . SO FAR AS DIRECT INSURANCE IS CONCERNED , THE PROTECTION OF POLICY-HOLDERS AND INSURED PERSONS JUSTIFIES IN THE PRESENT STATE OF COMMUNITY LAW THE APPLICATION BY THE MEMBER STATE IN WHICH THE SERVICE IS PROVIDED OF ITS OWN LEGISLATION CONCERNING TECHNICAL RESERVES OR PROVISIONS AND THE CONDITIONS OF INSURANCE , PROVIDED THAT THE REQUIREMENTS OF THAT LEGISLATION DO NOT EXCEED WHAT IS NECESSARY TO ENSURE THE PROTECTION OF POLICY-HOLDERS AND INSURED PERSONS . ONLY THE REQUIREMENT OF AN AUTHORIZATION WHICH IT IS FOR THE MEMBER STATE IN WHICH THE SERVICES ARE PROVIDED TO GRANT AND WITHDRAW CAN PROVIDE AN EFFECTIVE MEANS OF SUPERVISION AND IS THEREFORE PERMISSIBLE . THE AUTHORIZATION MUST BE GRANTED ON REQUEST TO ANY UNDERTAKING ESTABLISHED IN ANOTHER MEMBER STATE WHICH MEETS THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THE STATE IN WHICH THE SERVICE IS PROVIDED . THOSE CONDITIONS MAY NOT DUPLICATE EQUIVALENT STATUTORY CONDITIONS WHICH HAVE ALREADY BEEN SATISFIED IN THE STATE IN WHICH THE UNDERTAKING IS ESTABLISHED AND THE SUPERVISORY AUTHORITY OF THE STATE IN WHICH THE SERVICE IS PROVIDED MUST TAKE INTO ACCOUNT SUPERVISION AND VERIFICATIONS WHICH HAVE ALREADY BEEN CARRIED OUT IN THE MEMBER STATE OF ESTABLISHMENT .

6 . IF THE REQUIREMENT OF AN AUTHORIZATION CONSTITUTES A RESTRICTION ON THE FREEDOM TO PROVIDE SERVICES , THE REQUIREMENT OF A PERMANENT ESTABLISHMENT IS THE VERY NEGATION OF THAT FREEDOM . IT HAS THE RESULT OF DEPRIVING ARTICLE 59 OF THE TREATY OF ALL EFFECTIVENESS , A PROVISION WHOSE VERY PURPOSE IS TO ABOLISH RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES OF PERSONS WHO ARE NOT ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS TO BE PROVIDED . SUCH A REQUIREMENT IS PERMISSIBLE ONLY IF IT CONSTITUTES A CONDITION WHICH IS INDISPENSABLE FOR ATTAINING THE OBJECTIVE PURSUED . SO FAR AS THE PROVISION OF DIRECT INSURANCE SERVICES IS CONCERNED , IT IS NOT SUFFICIENT THAT THE PRESENCE ON THE UNDERTAKING ' S PREMISES OF ALL THE DOCUMENTS NEEDED FOR SUPERVISION BY THE AUTHORITIES OF THE STATE IN WHICH THE SERVICE IS PROVIDED MAY MAKE IT EASIER FOR THOSE AUTHORITIES TO PERFORM THEIR TASK . IT MUST ALSO BE THE CASE THAT THOSE AUTHORITIES CANNOT , EVEN UNDER AN AUTHORIZATION PROCEDURE , CARRY OUT THEIR SUPERVISORY TASKS EFFECTIVELY UNLESS THE UNDERTAKING HAS IN THE AFORESAID STATE A PERMANENT ESTABLISHMENT AT WHICH ALL THE NECESSARY DOCUMENTS ARE KEPT . THAT IS NOT THE CASE , AS COMMUNITY LAW STANDS AT PRESENT .

7 . WHEN THE WORDING OF SECONDARY COMMUNITY LAW IS OPEN TO MORE THAN ONE INTERPRETATION , PREFERENCE SHOULD BE GIVEN TO THE INTERPRETATION WHICH RENDERS THE PROVISION CONSISTENT WITH THE TREATY RATHER THAN THE INTERPRETATION WHICH LEADS TO ITS BEING INCOMPATIBLE WITH THE TREATY .

8 . IN THE CASE OF THE INSURANCE TO WHICH DIRECTIVE 78/473 ON CO-INSURANCE AP- PLIES , NOT ONLY THE REQUIREMENT THAT THE LEADING INSURER BE ESTABLISHED BUT ALSO THE REQUIREMENT THAT HE BE AUTHORIZED , WHICH ARE LAID DOWN IN THE INSURANCE SUPERVISION LAW , ARE CONTRARY TO ARTICLES 59 AND 60 OF THE TREATY AND THEREFORE ALSO TO THE DIRECTIVE .