JUDGMENT OF 13. 12. 1984 — CASE HAUG-ADRION / FRANKFURTER VERSICHERUNGS-AG

In Case 251/83 REFERENCE to the Court under Article 177 of the EEC Treaty by the Amtsgericht (Local Court) Aachen for a preliminary ruling in the proceedings pending before that court between

THE COURT (Third Chamber) composed of: C. Kakouris, President of Chamber, U. Everling and Y. Galmot, Judges, Advocate General: C. O. Lenz Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — The legal context: the German insurance legislation

III — Summary of observations submitted to the Court

1. Observations concerning the wording of the preliminary question itself

2. Observations concerning the actuarial reasons put forward for the absence of discounts in insurance contracts relating to motor vehicles bearing customs registration plates

3. Observations on the compatibility with Community law of the non-application of a no-claims bonus in insurance contracts covering vehicles registered under customs plates

IV — Oral procedure

Decision

The jurisdiction of the Court

The reply to be given to the question

Costs

I —. Facts and procedure

1. The plaintiff in the main proceedings, Mr Haug-Adrion, is a German national. He is an official of the European Communities in the service of the Commission and lives in Brussels. In 1981 he bought a motor car in the Federal Republic of Germany and obtained customs registration plates for it, since he intended to export it to Belgium. The third-party liability insurance required for the registration of the vehicle was issued to Mr Haug-Adrion by the Frankfurter Versi-cherungs-AG, which for the insurance of vehicles with customs registration plates does not apply its usual system of charges but instead applies a tariff which in calculating premiums does not take into account the insured person's driving record, that is to say, a tariff without a no-claims bonus. It appears from the file relating to the main action that Mr Haug-Adrion had driven for several years without causing any accident and was therefore, in the category of contract which had previously existed between him and the insurance company, entitled to the highest rate of discount. Mr Haug-Adrion has brought an action before the Amtsgericht Aachen for the transfer of that discount to the new type of contract (registration with customs plates).

2. In his action brought on 7 February 1983 he claimed repayment of that part of the insurance premium which he would not have had to pay had he been granted a discount, namely a sum of DM 103.33.

3. By order of 26 October 1983, received at the Court Registry on 10 November 1983, the Amtsgericht Aachen first asked the Court for a preliminary ruling on the following question, as framed by the plaintiff in the main action :

4. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted by the Frankfurter Versicherungs-Aktiengesellschaft, 6000 Frankfurt, represented by Messrs Gleiss, Lutz, Hootz, Hirsch and Partners, Rechtsanwälte, by the Government of the Federal Republic of Germany, represented by Martin Seidel and Ernst Roder, acting as Agents, and by the Commission of the European Communities, represented by Christoph Bail, a member of its Legal Department, acting as Agent. The plaintiff in the main proceedings submitted observations which were held to be out of time and therefore inadmissible.

5. By order of 30 May 1984, the Court, upon hearing the report of the Judge Rapporteur and the views of the Advocate General, decided to assign the case to the Third Chamber, pursuant to Article 95 of the Rules of Procedure, and to open the oral procedure without any preparatory inquiry.

II —. The legal context: the German insurance legislation

1. In the Federal Republic of Germany motor vehicles — whether or not they are normally located in the country — may be used on public roads and in public places only if there is insurance covering the user, the owner and the driver providing against personal injury and material or other pecuniary damage which may be caused in the course of the vehicle's use (Paragraph 1 of the Law of 5 April 1965 on liability insurance for vehicles, Bundesgesetzblatt (Official Journal — BGBl.) I, p. 213, as last amended by the Law of 29 March 1983, BGBl. I, p. 377, and Paragraph 1 of the Law of 24 July 1956 on liability insurance for foreign vehicles and trailers, BGBl. I, p. 667, as last amended by the Law of 18 March 1975 modifying the distribution of administrative competence, BGBl. I, p. 705).

2. Vehicles not yet licensed for use which are exported to a foreign country, travelling under their own power, and which therefore bear customs registration plates must also be insured. In the Federal Republic of Germany customs registration plates are issued only for vehicles used by persons who are not permanent residents of the Federal Republic of Germany or for vehicles which are exported from the country travelling under their own power (Articles 1 and 7 (2) of the Regulation of 12 November 1934 on international motor vehicle traffic, as last amended by the Regulation of 23 November 1982 BGBl. I, p. 1533 at 1536).

3. Insurance contracts with German insurers are concluded on the basis of general conditions of insurance and of tariffs (premiums and tariff provisions) which are officially approved (Article 4 of the Regulation on international motor vehicle traffic).

4. The companies are not at liberty to organize the rate structure as they see fit. They are required by the Regulation on motor vehicle insurance tariffs (of 20 November 1967, as last amended by the Regulation of 2 December 1982, Bundesanzeiger (Official Gazette) No 228 of 8 December 1982) to abide by actuarial principles. Article 6 of the regulation specifies that risks which have similar characteristic features are to be grouped in clearly definable risk classes. As regards insurance rate structures, Article 7 of the regulation provides:

5. With regard to the granting of the no-claims bonus, Article 20 (3) of the Regulation on motor vehicle insurance tariffs provides that where a policyholder changes insurance companies, the new insurance company must take into account the length of the previous contract and the claim-free period, and the number of claims made before the change, if the policyholder is able to produce proof of those points in the form of a certificate. Furthermore, by letter of 29 January 1981, the European Insurance Committee asked insurers in the Member States to take into account as far as possible, and in accordance with their practice, previous contracts of new policyholders coming from other Member States, that is, to take into account the claims record of the driver in the country in which he previously resided. As early as 1971 and 1972 the Verband der Haftpflichtversicherer, Unfallversicherer, Autoversicherer and Rechtsschutzversicherer (Association of liability, accident, motor-vehicle and legal-protection insurers) recommended to its members that in calculating discounts they should also, subject to certain conditions, take into account claim-free periods completed abroad, and it summarized that recommendation in a letter of 31 October 1977 in the following terms: A claim-free period completed abroad is recognized if an attestation in due form from a foreign insurer is presented. According to the Commission that recommendation has been followed in Belgium as well as in the Federal Republic of Germany.

III —. Summary of observations submitted to the Court

1. Observations concerning the wording of the preliminary question itself

(a). The defendant in the main proceedings, the insurance company, takes the view that the preliminary question is inadmissible.

(b). The Commission points out that it is the second order, that of 14 November 1983, which must be considered to be the actual reference.

2. Observations concerning the actuarial reasons put forward for the absence of discounts in insurance contracts relating to motor vehicles bearing customs registration plates

(a). The observations of the defendant in the main proceedings and of the Federal Republic of Germany concur on this point.

(b). The Commission does not agree with those arguments; on the contrary it takes the view that the no-claims bonus should be regarded as a personal tariff reduction to which a policyholder should be entitled if his risk profile has been ascertained over a long enough period and for a particular type of vehicle, whatever the conditions of its use.

3. Observations on the compatibility with Community law of the non-application of a no-claims bonus in insurance contracts covering vehicles registered under customs plates

(a). According to the Federal Republic of Germany and the Commission, it does not constitute a measure having equivalent effect to a quantitative restriction on exports, prohibited by Article 34 of the EEC Treaty.

(b). According to the Federal Republic of Germany and the Commission the non-application of a discount is not contrary to Articles 48 et seq. of the EEC Treaty on freedom of movement for workers.

(c). According to the defendant in the main proceedings, the Federal Republic of Germany and the Commission, the non-application of a discount is not contrary to the prohibition of discrimination on grounds of nationality laid down in Articles 7 and 65 of the EEC Treaty.

(d). Finally, the Commission argues that the non-application of a no-claims bonus in the case of a vehicle registered under customs plates does not seem contrary to the principle of freedom to provide services (Articles 59, 60 and 65 of the EEC Treaty) or to the rules on competition laid down by Articles 85 and 86 of the EEC Treaty.

IV —. Oral procedure

1. By an order of 26 October 1983 which was received at the Court Registry on 10 November 1983, supplemented by a second order of 14 November 1983 which was received at the Court Registry on 21 November 1983, the Amtsgericht [Local Court] Aachen, referred to the Court for a preliminary ruling under Article 177 of the Treaty a question on the interpretation of the relevant provisions of Community law, in order to decide whether an insurance scheme under which no-claims bonuses were not granted to owners of vehicles bearing customs registration plates was compatible with Community law.

2. That question was raised in the course of proceedings between Mr Haug-Adrion, a German national who is an official of the European Communities in the service of the Commission and lives in Brussels, and an insurance company, Frankfurter Versicherungs-AG, whose registered office is in Frankfurt.

3. In 1981 the plaintiff in the main proceedings, Mr Haug-Adrion, bought a motor car in the Federal Republic of Germany and registered it under customs plates, since he intended to export it to Belgium. The third-party liability insurance required for the registration of the vehicle was issued to Mr Haug-Adrion by the Frankfurter Versicherungs-AG, which for the insurance of vehicles with customs registration plates does not apply its usual system of charges but instead applies a tariff which does not take into account the insured person's driving record when calculating premiums

4. It appears from the documents in the main proceedings that Mr Haug-Adrion was, under the category of contract which had previously existed between him and the Frankfurter Versicherungs-AG, entitled to the highest rate of no-claims bonus. Mr Haug-Adrion therefore requested that the no-claims bonus which he had acquired under his previous insurance contract be transferred to his new contract regarding a vehicle registered under customs plates.

5. The Frankfurter Versicherungs-AG refused his request, and he therefore brought an action before the Amtsgericht Aachen for the refund of that part of the insurance premium which he would not have had to pay had the bonus been transferred, some DM 100.

6. By order of 26 October 1983 the Amtsgericht first asked the Court for a preliminary ruling on the following question, as framed by the plaintiff in the main proceedings :

7. By a second order made on 14 November 1983, which should be regarded as having replaced the previous order, the Amtsgericht rephrased the question in the following terms :

8. According to the Frankfurter Versicherungs-AG, the defendant in the main proceedings, the question thus asked is inadmissible since it is couched in such general terms that it is not possible for the Court to reply by giving an interpretation of the Treaty. Since the Amtsgericht did not refer to any provision of Community law for which it sought an interpretation and did not show to what extent such a provision might be relevant to its decision, its order amounted to a general request to the Court for legal information.

9. As the Court has already held on several occasions, although it is essential that national courts explain the reasons why they consider that a reply to their questions is necessary for their decision in the main proceedings, and define the legal context of the request for interpretation, where questions are couched in imprecise terms it is for the Court to extract from all the information provided by the national court and from the documents concerning the main proceedings the elements of Community law that need to be interpreted, having regard to the subject-matter of the dispute.

10. In this case it is quite clear from the said documents that the plaintiff in the main proceedings raised the possible incompatibility with Articles 7 and 65 of the Treaty of the provisions regarding the grant of the bonus contained in the general conditions of insurance offered by the defendant in the main proceedings inasmuch as they allegedly exclude him, on the ground of his foreign residence, from the benefit of tariff reductions granted on an individual basis.

11. It follows that the subject-matter of the preliminary question is sufficiently identifiable and that the objections raised in that respect by the defendant in the main proceedings cannot be upheld.

12. In referring the question to the Court the Amtsgericht wishes essentially to know whether the fundamental principle prohibiting discrimination on grounds of nationality, laid down in Article 7 of the Treaty and defined more exactly with regard to the freedom to provide services by Articles 59 and 65, which prohibit all restrictions on grounds of nationality or residence, must be interpreted as precluding contractual provisions such as those included in the general conditions of insurance offered by the defendant in the main proceedings.

13. In the light of the oral argument presented to the Court, the question put by the Amtsgericht must be regarded as also asking whether the refusal to grant a bonus to the plaintiff in the main proceedings was contrary to Article 48 of the Treaty, which prohibits all discrimination based on nationality between workers who are nationals of the Member States, as regards employment, remuneration and other conditions of work and employment, and also to Articles 30 and 34 of the Treaty concerning the elimination of quantitative restrictions in trade between Member States.

14. With regard first to the general prohibition of discrimination laid down in Article 7 and the implementing rules in Articles 48, 59 and 65, it must be pointed out that those provisions are intended to eliminate all measures which, in the fields of free movement of workers and freedom to provide services, treat a national of another Member State more severely or place him in a situation less advantageous, from a legal or factual point of view, than that of one of the Member State's own nationals in the same circumstances.

15. In order to show that the provisions of Community law on which he relies were contravened, the plaintiff in the main proceedings simply asserted that discimination resulted from the fact that the refusal, in the Federal Republic of Germany, to grant a bonus to insured persons who had vehicles registered under customs plates mainly concerned nationals of Member States other than the Federal Republic of Germany or persons who did not reside in the Federal Republic of Germany.

16. That argument cannot be accepted in the case of general tariff conditions such as those which are the subject of the main proceedings. Those tariff conditions in no way take into account the nationality or place of residence of the insured person; they are based exclusively on objective actuarial factors and on the objective criterion of registration under customs plates.

17. Even if such registration mainly concerns nationals of States other than the Member State in question, it must be pointed out that the refusal to grant a bonus in respect of vehicles registered under customs plates may also, independently of any consideration of nationality, affect nationals of the Member State in question who live there and have acquired a vehicle with the intention of exporting it, or nationals of that Member State who reside in another Member State and who wish to export to the Member State in which they reside a vehicle bought in the Member State of which they are nationals. That, indeed, is the case of the plaintiff in the main proceedings.

18. It must therefore be inferred from the foregoing that the prohibition of discrimination laid down by Articles 7, 48, 59 and 65 of the Treaty does not preclude the application in insurance contracts of tariff conditions such as those which are the subject of the main proceedings.

19. With regard, secondly, to the provisions relied on concerning the free movement of goods, in particular Article 34 of the Treaty, which prohibits quantitative restrictions on exports and all measures having equivalent effect, the plaintiff in the main proceedings argues that those provisions preclude any discrimination as regards insurance terms between vehicles habitually kept in the Federal Republic of Germany and those habitually kept in other Member States.

20. It must be observed in that respect that the Court has consistently held that Article 34 applies only to national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a special advantage for national products or for the domestic market of the State concerned.

21. National rules such as those in question in the main proceedings do not fall within that category; they merely authorize insurance companies to take into account in their tariff conditions particular circumstances in which vehicles are used which increase or diminish the insurance risk, such as, for example, the use of vehicles registered under customs plates.

22. Quite apart from the fact that the enactment of such rules in a Member State in no way prohibits insurers in that State from granting a bonus in respect of vehicles registered under customs plates, there is nothing to suggest that a tariff condition such as that at issue in the main proceedings, covered by such rules, gives any advantage whatever to national products or to the domestic market of the Member State concerned.

23. The answer to the question put by the national court must therefore be that the refusal of a no-claims bonus to insured persons resident in another Member State who own a vehicle registered under customs plates is not contrary to any provision of Community law, in so far as that refusal is based solely on objective actuarial criteria applied in a non-discriminatory manner.

24. The costs incurred by the Government of the Federal Republic of Germany and by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Third Chamber), in answer to the question referred to it by the Amtsgericht Aachen by order of 14 November 1983, hereby rules: