Report for the Hearing delivered in Case 206/84

I — Facts and written procedure

1. The coinsurance sector, that is to say insurance in which several insurers take part, has been the subject of the following harmonizing directives.

2. In order to transpose Directive 78/473 into its internal law, Ireland adopted the European Communities (Coinsurance) Régulions 1983 (SI No 65 of 1983) (hereinafter referred to the 1983 regulations).

3. Considering that the Irish regulations described above were contrary to Articles 59 and 60 of the Treaty and Directive 78/473, on 6 October 1983 the Commission addressed a formal letter to the Irish Government pursuant to the first paragraph of Article 169 of the Treaty, calling upon it to submit its observations.

4. By an application received at the Court Registry on 14 August 1984, the Commission brought the present action.

II — Conclusions of the parties

The Commission, supported by the United Kingdom as regards the claims set out under head 1 (a), and by the Netherlands Government, claims that the Court should:

Irehnd, supported by the Belgian Government, the Danish Government and the French Government, contends that the Court should:

HI — Submissions and arguments of the parties

1. Admissibility

2. The substance of the case

(i) General observations on the Treaty provisions regarding the freedom to provide services and on the harmonization directives

(ii) The leading insurer's obligation to obtain authorization and therefore to be established in Ireland or, as the case may be, to inform the competent Minister and obtain his consent.

From an analysis of the provisions of Directive 78/473, the French Government concludes that the transposition into national law effected by Ireland is in conformity with the directive. The French Government also considers that neither the directive nor the transposition thereof effected by Ireland is contrary to the Treaty. It maintains that whilst it is imperative that the rules of public policy or relating to the public interest laid down by the Member States should be applied and respected, it is not open to the State of origin of the provider of the services to supervise compliance by the latter with the rules in force in the State where the services are rendered. Moreover, the requirement of prior authorization or a permanent establishment or both is not disproportionate to the aim pursued and in no way overlaps the authorization which the insurer must obtain in his State of origin pursuant to Directive 73/239. The authorization which the insurer has had to obtain in his State of origin is valid only for the business which he carries on within the territory of that State.

(3) The prohibition regarding coinsurance operations in respect of risks below certain thresholds

Moreover, pending further coordination, operations not covered by the directive are covered by general conditions applicable to the provision of services. Those conditions include temporary limitations on that freedom, and in so doing are perfectly compatible with the Treaty and the decisions of the Court. Consequently, the Belgian Government maintains that the contested regulations are also not contrary to Articles 59 and 60.

(iv) Failure to have due regard for the direct effect and primacy of Community law

IV — Oral procedure

Ireland, the defendant in the proceedings, represented by J. D. Cooke, SC, and J. O'Reilly, Barrister, the Belgian Government, represented by R. Hoebaer, the Danish Government, represented by L. Mikaelsen, assisted by C. Gulmann, the French Government, represented by R. de Gouttes, the Netherlands Government, represented by D. J. Keur, the United Kingdom, represented by N. Phillips, QC, and P. Lasok, and the Commission of the European Communities, the plaintiff in the proceedings, represented by D. Gilmour, assisted by E. Steindorff and A. Philip, presented oral argument at the hearing on 6 and 7 November 1985.

The Commission stated at the hearing that the second head of claim was not directed against the unilateral fixing of the level of the thresholds but against the very existence of such thresholds. It was based on the premise that any requirement of authorization and establishment in the matter of freedom to provide services in the insurance sector was contrary to Articles 59 and 60 of the Treaty and that it was not open to the Member States, when transposing the directive into their national law, to limit the exemption from the obligations of establishment and authorization to coinsurers participating in insurance business which, according to the view taken by each State, came within the scope of the directive.

The Advocate General delivered his Opinion at the sitting on 20 March 1986.

1 Language of the Case: English.