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Parliamentary questions
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9 August 2010
Answer given by Mr Barnier on behalf of the Commission
Question reference: E-4744/2010

Insurers offering motor liability insurance policies use a number of risk factors, such as driving experience, to calculate insurance premiums. It is established case-law of the Court of Justice that the Third Non-life Insurance Directive 92/49/EEC(1) secures the principle of freedom to set premiums in the non-life insurance sector, including third-party liability motor insurance(2). Consequently, the fact that customers are charged different premiums can have an objective justification and is not as such a breach of any legal obligation.

Italy has introduced an obligation for insurance companies to accept any consumer who wishes to have third-party liability motor insurance. Moreover, insurance companies are obliged to calculate their premiums according to the relevant technical bases or market statistics(3).

Contracts between consumers and insurance companies which contain contract terms that have not been individually negotiated are covered by Directive 93/13/EEC on unfair terms in consumer contracts(4). This directive aims at preventing significant imbalances in the rights and obligations of consumers on the one hand, and of sellers and suppliers on the other. This general requirement is supplemented by a list of terms which may be regarded as unfair. Terms which are found by a national court, tribunal or administrative body to be unfair under directive are not binding on consumers. The directive, however, explicitly excludes an assessment of the fairness of terms on the main subject matter of the contract, the adequacy of the price and remuneration or the services or goods in exchange (Article 4(2) of the directive).

A risk charge on motor insurance on basis of nationality could, under certain conditions, be contrary to EU legislation on equal treatment. The Racial Equality Directive 2000/43/EC(5) prohibit direct and indirect discrimination on grounds of racial or ethnic origin in the access to goods and services, including insurances. The directive does not cover difference of treatment based on nationality as such. However, risk charges based exclusively on the nationality of the applicant could constitute indirect discrimination on grounds of ethnic origin, unless they are objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (Article 2(2)(b) of the directive).

Without any information on the reasons behind the risk charge mentioned by the Honourable Member, it is not possible to give a definitive assessment of the case at stake. In any event, Italy has transposed Directive 2000/43/EC. Therefore, a potential violation of the principle of equal treatment would have to be challenged before the national courts.

(1)OJ L 228, 11.8.1992.
(2)Case C‑59/01, Commission v Italy, Paragraph 29.
(3)Case C‑518/06, Commission v Italy.
(4)OJ L 95, 21.4.1993.
(5)OJ L 180, 19.7.2000.

OJ C 191 E, 01/07/2011
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