Brussels, 17 October 2005
Internal Market: infringement proceedings against Austria, Finland, France, Italy, Greece, Portugal and Sweden
The European Commission has decided to refer France and Greece to the European Court of Justice regarding their implementation of the Second Anti-Money Laundering Directive: France has notified its transposition measures only partially and Greece has not yet communicated to the Commission any of its transposition measures for the Directive. Austria, Sweden and Finland will also be referred to the Court with respect to provisions in some of their Bilateral Investment Treaties concluded before their accession to the EU with non-EU countries. In addition, the Commission has decided, under Article 228 of the EC Treaty, to refer Portugal to the Court regarding its non-compliance with a 2004 Court judgment on its implementation of Directive 89/665/EEC on remedies in Public Procurement. The Court may then impose a daily penalty or/and lump sum payment on Portugal. In the area of insurance, the Commission has decided formally to request Italy to modify its legislation requiring all insurers that are licensed to provide compulsory motor insurance in Italy to offer insurance for all categories of insured in all regions of Italy. Sweden will also be formally requested to implement correctly Articles 4, 5 and 6 of the Legal Expenses Insurance Directive. These requests are in the form of “reasoned opinions”, the second stage of the infringement procedures laid down in Article 226 of the EC Treaty. In the absence of a satisfactory reply from the Member State within two months of receiving the reasoned opinion, the Commission may decide to refer the matter to the European Court of Justice. Finally, the Commission has decided to close a case against Malta regarding its legislation that required every user of a satellite dish in Malta both to have a licence and to pay a fee for this licence in order to be allowed to receive satellite television services.
France and Greece: Second Anti-Money Laundering Directive
The European Commission has decided to refer France and Greece to the European Court of Justice for non-communication of national implementation measures concerning the Second Anti-Money Laundering Directive (2001/97/EC).
Although completion of implementation in France had been anticipated for the first half of 2005, the Commission has not received to date any communication from the Member State that would suggest that the last missing piece of implementation has in fact been put in place.
Greece has changed its calendar of implementation several times, and given the lack of communication of these measures to the Commission by the Member State the final date of adoption of all the implementing measures remains uncertain. For this reason, the Commission has decided to refer Greece to the Court.
Austria, Sweden and Finland: Pre-accession Bilateral Investment Treaties with non-EU countries
The European Commission has decided to refer Austria, Sweden and Finland to the European Court of Justice with respect to provisions in some of their Bilateral Investment Treaties concluded before their accession to the EU with non-EU countries. The Commission considers that provisions on the free transfer of funds in these agreements, relating to investments, would infringe on the application of Council measures on the movement of capital according to Articles 57(2), 59 and 60 of the EC Treaty. To the extent that international agreements concluded before the accession are not compatible with the Treaty, Member States are obliged, according to Article 307 of the Treaty, to take all appropriate steps to eliminate such incompatibilities. Austria, Sweden and Finland did not take appropriate steps.
Portugal: Public procurement remedies
The Commission has decided to refer Portugal to the European Court of Justice regarding non-compliance with the judgment of 14 October 2004 (Commission versus Portugal, case C-275/03), after finding that by the deadline for replying to its reasoned opinion the Portuguese authorities had still not adopted the measures required for compliance with that judgment and the proper transposition of Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.
Under Portuguese legislation, in order to obtain damages in the event of a breach of Community law regarding public contracts or of national rules transposing that law, it has to be proven that agents of a particular administrative entity committed a fault or wilful deception. This is liable to dissuade Community economic operators from taking their chances in public contracts in Portugal. A tenderer who is aggrieved by an illegal decision taken by a contracting authority risks being deprived of his right to claim damages for the loss suffered as a result of that decision, or at least risks obtaining such damages later, because he cannot or cannot easily adduce proof of wilful deception or a fault having been committed.
In this context it should be recalled that Article 228 of the Treaty provides that if the Court of Justice acknowledges that the Member State concerned has not complied with its judgment, it may impose a lump sum or penalty payment.
Italy and Sweden: Insurance
A reasoned opinion has been sent to Italy regarding Italian legislation requiring all insurers that are licensed to provide compulsory motor insurance in Italy to offer insurance for all categories of insured in all regions of Italy. The Commission has received several complaints regarding this issue. In the Commission’s view, the Italian regime appears contrary to the freedom to commercialise insurance products, as laid down in the Third Non-life Insurance Directive (92/49/EC). Moreover, the rules may discourage foreign insurance providers from entering the Italian insurance market. Hence, the Italian regime restricts the freedom to provide services and the right of establishment as laid down in Articles 49 and 43 EC. Letters of formal notice were sent to Italy in July and December 2004. Failing a clear response from the Italian authorities, the Commission decided to send a reasoned opinion. The Italian authorities are invited to respond to the opinion within 2 months.
A reasoned opinion has been sent to Sweden regarding failure to implement correctly Articles 4, 5 and 6 of the Legal Expenses Insurance Directive (87/344/EEC). This Directive provides rules aiming at the prevention of conflict of interests between persons with a legal expenses insurance and their insurers. The Directive states, inter alia, that the insurance contract must mention the right of the insured person to have recourse to an alternative dispute settlement procedure. This provision is not reflected in the Swedish implementing legislation. In its reply to the Commission’s letter of formal notice sent in March 2005, the Swedish authorities argued that its legislation was compatible with the Directive, since the parties to the insurance contract may agree on alternative conflict settling mechanisms. This is insufficient in the Commission’s view. The Swedish authorities are invited to respond to the opinion within 2 months.
Malta: licence and fee for satellite dishes
Having received numerous complaints and a written question from the European Parliament, the Commission had opened infringement proceedings against Malta and sent a letter of formal notice on 13 October 2004 on account of legislative provisions making the installation and possession of satellite dish antennas subject to a licence and the payment of a fee. The Commission's Communication of 2 July 2001 (IP/01/913) underlined the incompatibility of such administrative and fiscal measures with the principle of the free movement of services, and the Court of Justice confirmed that the Treaty prohibited hindrances to the reception of services by these antennae (case C-17/00 De Coster of 29 November 2001).
The licence and fee in question had the effect of discouraging the country's inhabitants from receiving television programmes broadcast by other Member States. Similarly, satellite transmission operators established in other Member States were put at a disadvantage compared with cable TV distributors operating in Malta.
Amended on 10 June 2005, the law on radio communications no longer provides
for either a licence or a fee for the use of a satellite dish antenna. The
Commission can therefore, now terminate this procedure.