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Published online by Cambridge University Press: 20 January 2017
Case C-82/10, European Commission v Ireland [2011] ECR I-00000
Article 4 of the 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relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended and repealed by the Solvency II Directive, OJ L – 228, of 16.08.1973. pp. 3–19. [First non-life Directive].
Ireland was found to have failed to fulfil its obligations under the non-life insurance directives by not covering the Voluntary Health Insurance Board, the main health insurer in Ireland, with the supervisory scheme envisaged by those directives. The Court of Justice of the European Union judgment raises vital questions important for the existing exempted insurance institutions.
1 See generally Merkin, Robert and Rodger, Angus, EC Insurance Law (London, New York: Longman 1997), pp. 1–15 Google Scholar; Legh-Jones, Nicholas Birds, John and Owen, David (eds), MacGillivray on Insurance Law: Relating to all Risks Other Than Marine, 9th ed. (London: Sweet & Maxwell, 1997), pp. 928–930.Google Scholar
2 Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), OJ 2009 L 335/1 [Solvency II Directive]. It should be noted that the Solvency II Directive initially had provided that it would fully enter into force on 1 November, 2012 (see Art. 311 (2) of the Solvency II Directive) but later this date was amended and postponed till 1 January, 2014 (see Directive 2012/23/EU of the European Parliament and of the Council of 12 September 2012 amending Directive 2009/138/EC (Solvency II) as regards the date for its transposition and the date of its application, and the date of repeal of certain Directives, OJ 2012 L 249/1).
3 Case C-82/10, European Commission v Ireland [2011] ECR I-00000.
4 Ibid. The CJEU may decide to proceed without an Advocate's General Opinion if the CJEU considers that the case raises no new point of law (Art. 20 (5) of the Statute of the CJEU) (Protocol No 3 on the Statute of the Court of Justice of the European Union of the Consolidated version of the Treaty on the Functioning of the European Union, OJ 2010 C 83/210).
5 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 228/3 [First non-life Directive].
6 Supra note 3, at para. 45.
7 Ibid., at para. 46.
8 Ibid., at para. 47.
9 Ibid., at para. 48.
10 Ibid., at para. 52.
11 See the Art. 8 of the Solvency II Directive.
12 It shall be noted that in contrast to the three generations of life insurance and non-life insurance Directives adopted solely by the Council, the Solvency II Directive was adopted jointly by the Council and European Parliament.
13 It shall be noted that the Proposal for a First non-life insurance Directive drafted by the European Commission did not mention the VHI (“Vorschlag für eine erste Richtlinie des Rates zur Koordinierung der die Aufnahme und Ausübung der Direktversicherung [auDer Lebensversicherung] betreffenden Rechts- und Verwaltungsvorschriften” (Artikel 57 Absatz (2) EWGV) (von der Kommission dem Rat vorgelegt am 17. Juni 1966), Amtsblatt 1966 P 175/3056). Therefore, it was obviously the acceptance of the Council to enter the VHI in the list of exempted institutions in the First non-life insurance Directive.
14 The European Commission was the institution that proposed Solvency II Directive (European Commission, Corrigendum: Amended Proposal for a Directive of the European Parliament and of the Council on the taking-up and pursuit of the business of insurance and reinsurance (Solvency II) (recast). 21 April 2008, COM/2008/0119 final/2).
15 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/EEC, OJ 1988 L 172/1 [Second non-life Directive].
16 Excluding Ireland as VHI is outside of the scope of such institutions according to the CJEU's judgment in the discussed case.
17 Art. 4 of the First non-life insurance Directive, as amended.
18 Art. 8 of the Solvency II Directive, effective as from 01 January 2014 (see supra note 2).
19 Arts. 3 (7) and (8) of the Life insurance Directive (Directive 2002/83/ EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance, OJ 2002 L 345/1).
20 Until the Solvency II Directive fully enters into force, its regulation has different applicability in case of exempt life and non-life insurance institutions. So, Art. 8 of the Solvency II Directive (see supra note 18) concerning exempt insurance institutions for nonlife insurance is not entered into force yet, but in case of life insurance – has already entered into force (see Art. 10 referred to in the next note) as provided by Art. 311 (2) of the Solvency II Directive.
21 Art. 10 of the Solvency II Directive. In contrast of exempted insurance institutions in respect of non-life insurance (see supra note 20), this Article is already in force (see Art. 311 (2) of the Solvency II Directive).
22 Falck Danmark, Business areas, Healthcare, available at on the Internet <http://www.falck.com/businnes%20areas/healthcare/pages/ healthcare.aspx> (last accessed on 8 November 2012).
23 Act of Accession of Spain and Portugal, OJ 1985 L 302/23.
24 Consorcio de Compensación de Seguros, Corporate Information, Presentation of the Entity, Introduction, available on the Internet at <http://www.consorseguros.es/web/guest/le_ic_pd_i> (last accessed on 8 November 2012).