«(Failure of a Member State to fulfil obligations – Directive 92/49/EEC – Freedom to set premiums and abolition of prior or systematic controls over premiums and contracts – Gathering of information)»

Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct insurance other than life assurance – Directive 92/49 – Freedom to set premiums – Price-control system applicable to contracts of insurance covering third-party liability arising from the use of motor vehicles – Not permissible (Council Directive 92/49, Arts 6, 29 and 39) By introducing and maintaining in force rate-freezing rules applicable to all contracts of insurance in respect of third-party liability arising from the use of motor vehicles in relation to risks situated within its territory, without distinguishing between insurance companies having their head office in that Member State and those conducting their business there, through branch offices or under the freedom to provide services, a Member State fails to fulfil its obligations under Council 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).Such legislation is in fact contrary to the principle of freedom to set premiums referred to in Articles 6, 29 and 39 of that directive, which implies the prohibition of any system of prior or systematic notification or approval of the rates which an undertaking intends to use in its dealings with policy-holders. It does not, moreover, fall within the exception provided for by the third subparagraph of Article 8(3) of Directive 73/239, the second paragraph of Article 29 and Article 39(3) of Directive 92/49 in so far as it cannot be regarded as forming part of a general price-control system within the meaning of those provisions.see paras 26, 29, 37, 48, operative part

JUDGMENT OF THE COURT 25 February 2003 (1)

((Failure by a Member State to fulfil obligations – Directive 92/49/EEC – Freedom to set premiums and abolition of prior or systematic controls over premiums and contracts – Gathering of information))

In Case C-59/01,

applicant,

v

defendant,

APPLICATION for a declaration that, by introducing and maintaining in force rate-freezing rules applicable to all contracts of insurance in respect of third-party liability arising from the use of motor vehicles in relation to risks situated within Italian territory, without distinguishing between insurance companies having their head office in Italy and those carrying on business in Italy through branch offices or under the freedom to provide services, in breach of:

the Italian Republic has failed to fulfil its obligations under that directive,

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet and C.W.A. Timmermans (Presidents of Chambers), D.A.O. Edward, P. Jann, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Judges,

Advocate General: S. Alber,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 16 April 2002,

after hearing the Opinion of the Advocate General at the sitting on 4 July 2002,

gives the following

the Italian Republic has failed to fulfil its obligations under that directive.

The relevant Community provisions

... .

Member States shall not, however, adopt provisions requiring the prior approval or systematic notification of general and special policy conditions, scales of premiums and forms and other printed documents which an undertaking intends to use in its dealings with policyholders.Member States may not retain or introduce prior notification or approval of proposed increases in premium rates except as part of general price-control systems.... .

The groups of classes are hereby defined as follows:...─ motor (classes 3, 7 and 10, the figures for class 10, excluding carriers' liability, being given separately),...The competent authority of the home Member State shall forward that information within a reasonable time and in aggregate form to the competent authorities of each of the Member States concerned which so request.

(2)(a) Paragraph 2 above shall apply, from the date of the entry into force of this Decree, to insurance contracts for automobiles, mopeds and motorcycles, which apply the scales of premium referred to in Article 12 of Law No 990 of 24 December 1969, as well as to contracts proposed by telephone, fax or e-mail, and to contracts which do not provide for automatic renewal or which are terminated by the undertaking, if they are entered into afresh with the same insurer.

Those fines shall be increased by 10% in each case of a further offence.

Alleged infringement of Articles 6, 29 and 39 of Directive 92/49

Arguments of the parties

Findings of the Court

The allegation of infringement of Article 44 of Directive 92/49

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT

hereby:

Rodríguez Iglesias

Puissochet

Wathelet

Timmermans

Edward

Jann

Macken

Colneric

von Bahr

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 25 February 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President