OPINION OF ADVOCATE GENERAL

TESAURO delivered on 29 February 1996 (1)

(Reference for a preliminary ruling from the Tribunal des Affaires de Sécurité Sociale for Tarn-et-Garonne)

((Direct insurance other than life assurance – Council Directive 92/49/EEC – Scope – Insurance forming part of a statutory system of social security))

5. The national tribunal, explicitly acknowledging in its order for reference that the defendant organizations administer schemes forming part of the national statutory system of social security within the meaning of the First and Third Directives and that those directives unquestionably exclude such systems from their scope, states that it has doubts as to the scope of that exclusion in the light of the provisions of [the Third] Directive itself. Ascribing significant importance to the preamble to that directive, in particular the aims expressed therein of liberalizing the market in the sector concerned, the national tribunal decided to join the cases pending before it, stay the proceedings in those cases, and submit the following question to the Court of Justice: Does Article 2(2) of Council Directive 92/49/EEC concern at all, in whole or in part, the actual subject-matter of the existing statutory social security system applied in France?

7. The very wording of Article 2(1)(d) of the First Directive, to which Article 2(2) of the Third Directive explicitly refers (This Directive does not apply to insurance forming part of a statutory system of social security), is so absolute as to leave no scope at all for any other interpretation. It is, moreover, obvious that the exclusion of the defendant organizations from the scope of the Third Directive must relate also, and even predominantly, to their activities in the administration of the national social security system.

10. More particularly, the view put forward by the plaintiffs (and apparently shared by the national tribunal) to the effect that the broad scope of the preamble to the Third Directive, setting out the opening up of the insurance market to competition as the principal objective of the rules laid down, makes it possible to interpret the directive itself as referring also to insurance schemes such as those in issue, is undoubtedly not merely unfounded but also irrelevant in the present context. It is unfounded inasmuch as there is no trace in the preamble of any reference to social security matters, from which it could be inferred or assumed that the real intention of the legislature was to interfere in the organization and regulation of the compulsory social security schemes established under the legislation in force in the various Member States. (8) It is irrelevant, moreover, because there is no need in the present case to have recourse to the preamble in order to define the purpose or scope of a provision whose clarity, as we have seen, is incontrovertible.

11. In the light of the foregoing I propose that the Court should give the following answer to the question raised by the Tribunal des Affaires de Sécurité Sociale for Tarn-et-Garonne: Article 2(2) of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) must be interpreted as meaning that the directive does not apply to insurance forming part of a statutory system of social security.

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1 – Original language: Italian.

2 – OJ 1992 L 228, p. 1.

3 – First Council Directive on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3).

4 – In particular, the Caisse de Maladie Régionale des Professions Indépendantes Midi-Pyrénées, the CANCAVA and the Caisse ORGANIC Midi-Pyrénées.

5 – Case 238/82 Duphar v Netherlands [1984] ECR 523, paragraph 16, and Joined Cases C-159/91 and C-160/91 Poucet and Pistre v Assurances Générales de France and Others [1993] ECR I-637, paragraph 6.

6 – Poucet and Pistre, paragraphs 18 and 19. Such a conclusion is not contradicted, but rather confirmed, by the recent judgment in Case C-244/94 FFSA and Others v Ministère de l'Agriculture [1995] ECR I-0000, in which the Court held that bodies such as (or similar to) those in question here, but which administer an optional, supplementary insurance scheme based on capitalization, are to be regarded as undertakings for the purposes of the Treaty provisions on competition.

7 – None of these, moreover (Articles 51 and 117 et seq. of the Treaty), can constitute a proper legal basis for the adoption of measures aimed at dismantling national social security systems. It is only since the entry into force of the Maastricht Treaty, and thus of the Protocol on Social Policy appended thereto, that the Community (with the exception of the United Kingdom) has had a specific legal basis (which has in fact never yet been used) to adopt wider-ranging measures in the field of social security (first indent of Article 2(3) of the Agreement on Social Policy appended to the Protocol).

8 – Recital 22, for example, does no more than note that in some Member States, under and in accordance with the national legislation in force, private or voluntary health insurance may serve as a partial or complete alternative to health cover provided for by the social security systems, which justifies the right of the national authorities to require insurance undertakings to provide all the information necessary to verify that the alternative is an effective one (Article 54(1)). It is obvious, on the other hand, that the need to abolish the monopoly enjoyed by certain bodies in certain Member States, expressed in recital 10, refers exclusively, as specified in Article 3, to the bodies explicitly referred to in Article 4 of the First Directive.