Avis juridique important

61998J0296

European Court reports 2000 Page I-03025

Summary

Freedom to provide services - Direct insurance other than life assurance and direct life assurance - Directives 92/49 and 92/96 - Prohibition on requiring systematic notification of the general and special conditions of insurance policies - National legislation providing for notification to the competent minister of the conditions of a standard form contract of insurance when it is first marketed on national territory - Not permissible (Council Directives 92/49, Arts 6, 29 and 39, and 92/96, Arts 5, 20 and 39)

A Member State which maintains in force laws, regulations and administrative provisions which provide that insurance or capitalisation undertakings which market for the first time on national territory a standard form contract of insurance must systematically send the Minister for Economic and Financial Affairs an information sheet containing information on the general conditions of insurance policies has failed to fulfil its obligations under Articles 6, 29 and 39 of 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) and Articles 5, 29 and 39 of Directive 92/96 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267 and 90/619 (third life assurance directive), which prohibit a Member State from requiring systematic notification of the general and special conditions of insurance policies which an undertaking proposes to use within that Member State in its dealings with insurance purchasers.

( see paras 27, 35 and operative part )

Parties

In Case C-296/98,

Commission of the European Communities, represented by C. Tufvesson, Legal Adviser, and B. Mongin, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the Chambers of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

French Republic, represented by K. Rispal-Bellanger, Deputy Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and S. Seam, Foreign Affairs Secretary in that Directorate, acting as Agents, with an address for service in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

defendant,

APPLICATION for a declaration that, by maintaining in force Article L. 310-8 of the Insurance Code, which provides that, when marketing a standard form contract of insurance for the first time in France, insurance and capitalisation undertakings must notify it to the Minister for Economic and Financial Affairs in accordance with the conditions laid down by order of that minister, and Article A. 310-1 of the same code, which provides that the information referred to in the first paragraph of Article L. 310-8 is to be provided in the form of a information sheet drawn up in French containing the information mentioned in the annex to Article A. 310-1, the French Republic has failed to fulfil its obligations under the EC Treaty and under Articles 6, 29 and 39 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) (OJ 1992 L 228, p. 1) and Articles 5, 29 and 39 of Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance directive) (OJ 1992 L 360, p. 1),

THE COURT (Fifth Chamber),

composed of: J.C. Moitinho de Almeida (Rapporteur), President of the Sixth Chamber, acting as President of the Fifth Chamber, L. Sevón, C. Gulmann, J.-P. Puissochet and M. Wathelet, Judges,

Advocate General: S. Alber,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 16 September 1999,

after hearing the Opinion of the Advocate General at the sitting on 28 October 1999,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]’

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

(c)Payment of premiums;

(d)Surrender: time-limit and procedure;

(e)Making a claim;

(f)Additional information relating to certain classes of contract:

-life and capitalisation contracts: fees and penalties charged by the insurance undertaking on surrender of a policy;

-other contracts with a surrender value: surrender fees;

-variable capital: list of reference values and types of assets included;

-group contracts: termination and transfer formalities;

(g)Premium information relating to the principal and supplementary items of cover.

(a)Guaranteed interest rate and guarantee period;

(b)Guaranteed minimum surrender values, fidelity bonuses and discounts;

(c)Calculation of profit share.

5. Date of first marketing.

II. - Marketing information sheet for a new standard form contract of non-life insurance

3. Contractual definition of cover provided stating the numbers of the classes of events covered (Article R. 321-1 of the Insurance Code).

Yes

If so, what are the formalities for terminating or transferring the contract?

5. Is the contract intended to cover major risks (as defined in Article L. 111-6 of the Insurance Code) only (1)?

Yes

Yes

7. Is the contract governed solely by French law (1)?

Yes

Private individuals

Others

(1) Tick the appropriate box.

Precontentious procedure

13 By letter of 17 January 1997, having taken the view that Articles L. 310-8 and A. 310-1 of the French Insurance Code were inconsistent with the Member States' obligations under Articles 6, 29 and 39 of Directive 92/49 and Articles 5, 29 and 39 of Directive 92/96, because those national provisions require systematic notification of the general conditions of contracts which insurance undertakings propose to market for the first time within French territory, the Commission gave the French Government formal notice to send, within two months, its observations concerning that alleged infringement of those Community directives.

14 By letter of 25 March 1997, the French authorities submitted that Directives 92/49 and 92/96 allow the Member States to supervise contracts, by means of post hoc sampling, in order to ensure that they comply with national provisions relating to insurance contracts and to actuarial principles. Article L. 310-8 of the French Insurance Code is designed to make such supervision possible and effective, which is necessary both from the prudential point of view and for the protection of policyholders. The obligation imposed by Article L. 310-8 is not inconsistent with Community law. First, the information solicited is different from the information and documents the advance or systematic notification of which is prohibited by Directives 92/94 and 92/96. Secondly, the notification of marketing information sheets provided for by the Insurance Code does not give rise to the prior approval of insurance contracts, as the sheets may be notified after marketing of the contracts has begun. The French authorities nevertheless admitted in their letter that it would be necessary to review the wording of the articles of the Insurance Code at issue so as to remove any ambiguities.

15 That explanation did not change the Commission's view that Directives 92/49 and 92/96 had been infringed. On 30 December 1997, it therefore addressed a reasoned opinion to the French Republic in which it reiterated all the complaints set out in the letter of formal notice and requested the French Republic to adopt the necessary measures to comply with the reasoned opinion within two months of its notification.

16 In the absence of any reply from the French authorities to that reasoned opinion, the Commission, taking the view that the French authorities had not amended Articles L. 310-8 and A. 310-1 of the Insurance Code, or had at least failed to inform it of any such amendment, decided to bring the present action.

Substance

17 During the oral hearing, the French Government stated that, in order to remove any ambiguity as to whether or not the notification of marketing information sheets amounted to a precondition of the marketing of new insurance contracts, the wording of Article L. 310-8 of the Insurance Code had been amended by Article 91(1) of Law No 99-532 of 25 June 1999 on savings and financial security (JORF, 29 June 1999, p. 9487). Article L. 310-8, as amended, provides as follows:

Within three months of the first marketing of a new standard form contract of insurance, insurance or capitalisation undertakings shall notify the Minister for the Economy of such standard form contracts, in the form laid down by order of that minister.

18 The French Government does not dispute that Directives 92/49 and 92/96 prohibit the Member States from requiring systematic notification of the general conditions of contracts which insurance undertakings propose to market for the first time within their territory and merely authorise checking of those conditions by means of post hoc sampling.

19 Nevertheless, it argues that the Community legislation contains no definition of the general conditions of insurance policies. It states that, according to legal theory, the general conditions are those clauses which are common to a class of contracts concluded by the same insurer. The marketing information sheets, however, do not require notification of any information which could be regarded as forming the general conditions of insurance policies in that sense. They merely require brief information without going into the detail of the general conditions of the insurance policies.

20 On this point, the French Government maintains that the definition of the general conditions of insurance policies proposed by the Commission would render without effect the first subparagraph of Article 8(3) of First Council Directive 73/239/EEC of 24 July 1973 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), as amended by Article 6 of Directive 92/49, and the third subparagraph of Article 8(3) of First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct life assurance (OJ 1979 L 63, p. 1 ), as amended by Article 5 of Directive 92/96. Those provisions, which are in identical terms, provide as follows: Nothing in this directive shall prevent Member States from maintaining in force or introducing laws, regulations or administrative provisions requiring approval of the memorandum and articles of association and communication of any other documents necessary for the normal exercise of supervision.

21 If the concept of the general conditions of insurance policies were to include, as the Commission maintains, every detailed aspect of the contractual relationship between insurer and insured, the words documents necessary for the normal exercise of supervision would be meaningless.

22 According to the French Government, the marketing information sheets are documents necessary for the normal exercise of such supervision by means of post hoc sampling. That supervision cannot be carried out without the classification and identification of insurance contracts which is made possible by the information obtained from the marketing information sheets.

23 In this connection, the French Government argues that the information obtained from the home Member State is insufficient, given that the contracts marketed in the Member State where the freedom to provide services is exercised are not the same as those marketed in the home Member State.

24 The Commission reiterates the arguments it set out in its reasoned opinion, adding that the new wording of Article L. 310-8 of the French Insurance Code, whilst admittedly providing for post hoc supervision of the general conditions of insurance contracts, has not changed the fact that that supervision is systematic, with the result that it is inconsistent with the requirements of Directives 92/49 and 92/96. In any event, the amendment, which was adopted after the two-month time-limit laid down in the reasoned opinion had expired, cannot be regarded as having brought to an end the infringement alleged against the French Republic in the present proceedings.

25 The Court observes that, in the case of life assurance contracts, insurance undertakings are asked, in the marketing information sheet, for information on the features of the contract, including the contractual definition of the cover provided, the duration of the contract, the method of paying the premiums, the time-limit and procedure for surrendering the contract, the formalities to be completed in the event of a claim, the premiums relating to the principal and supplementary items of cover, the date of first marketing and the minimum guaranteed profit, including the guaranteed interest rate.

26 In the case of non-life insurance contracts, the information asked of insurance undertakings relates to the contractual definition of the cover provided, the formalities for termination or transfer, the type of risks covered, whether or not those risks are covered in France alone, whether the contract is governed solely by French law, the intended client base, and the date of first marketing.

27 It should be remembered in this connection that Articles 6, 29 and 39 of Directive 92/49 and Articles 5, 29 and 39 of Directive 92/96 prohibit a Member State from requiring systematic notification of the general and special conditions of insurance policies which an undertaking proposes to use within that Member State in its dealings with insurance purchasers.

28 It must, however, be concluded that, through the marketing information sheets, insurance undertakings are being asked systematically to notify to the authorities of the Member State concerned a set of information, including those items mentioned in paragraphs 25 and 26 above, which may be regarded as forming part of the general conditions of the contracts of insurance.

29 Any obligation systematically to notify such information is contrary to the freedom to market insurance products within the Community, which Directives 92/94 and 92/96 are designed to achieve.

30 Admittedly, the Member State in whose territory the freedom to provide services is exercised has, under Article 6 of Directive 92/49 and Article 5 of Directive 92/96, power to supervise insurance contracts marketed within its territory.

31 In this connection, it must be observed that that Member State is already in possession of information relating to the branches of insurance that the undertaking is authorised to deal in and the nature of the risks it proposes to cover, and a certificate stating that the undertaking has the minimum margin of solvency. These it will have received from the competent authorities of the other Member States by virtue of Article 16 of the Second Council Directive (88/357/EEC) of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239 (OJ 1988 L 172, p. 1), and Article 14 of Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267 (OJ 1990 L 330, p. 50), as amended by Article 35 of Directive 92/49 and Article 35 of Directive 92/96 respectively.

32 Article 6 of Directive 92/49 and Article 5 of Directive 92/96 also permit the Member State within whose territory the freedom to provide services is exercised to seek, by way of post hoc sampling, information relating to the general conditions of insurance policies marketed in that State. Nevertheless, those provisions do not allow any such request for information to be systematic.

33 The systematic notification by means of marketing information sheets of some of the general conditions of insurance policies cannot therefore be regarded as a procedure necessary for enabling the normal exercise of supervision under Article 6 of Directive 92/49 and Article 5 of Directive 92/96 by Member States within whose territory the freedom to provide services is exercised.

34 That being so, the action brought by the Commission must be regarded as well founded.

35 Consequently, it must be held that, by maintaining in force the combined provisions of Article L. 310-8 and Article A. 310-1 of the Insurance Code, which provide that insurance or capitalisation undertakings which market for the first time in France a standard form contract of insurance must systematically send the Minister for Economic and Financial Affairs an information sheet containing information on the general conditions of insurance policies, the French Republic has failed to fulfil its obligations under Articles 6, 29 and 39 of 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) and Articles 5, 29 and 39 of Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance directive);

Decision on costs

Costs

36 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for the French Republic to be ordered to pay the costs and the French Republic has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

hereby: