Opinion of the Advocate General — ECLI:EU:C:2010:676
Date: 2010-11-11
Language of the case: French
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Competition – European Union rules – Substantive scope – Collective agreements intended to achieve social policy objectives – Addendum to a collective agreement instituting a scheme for supplementary reimbursement of healthcare costs – Decision of public bodies making affiliation to that scheme obligatory – Exclusion (Art. 4(3) TEU; Art. 101(1) TFEU) 2. Competition – European Union rules – Undertaking – Concept – Body responsible for the management of a scheme for supplementary reimbursement of healthcare costs – Inclusion – Conditions (Arts 101 TFEU and 102 TFEU) 3. Competition – Public undertakings and undertakings to which special or exclusive rights have been granted – Undertakings entrusted with the operation of services of general economic interest – Body responsible for the management of a scheme for supplementary reimbursement of healthcare costs – Obligation of affiliation for undertakings in the occupational sector concerned without any possibility of exemption from affiliation – Lawfulness (Arts 102 TFEU and 106 TFEU) 1. An agreement concluded in the form of an addendum to a collective agreement which is therefore the result of collective bargaining between the organisation representing employers and those representing employees within a certain occupational sector and which establishes, within that sector, a scheme for supplementary reimbursement of healthcare costs which contributes to improving the working conditions of employees, not only by ensuring that they have the necessary means to meet expenses incurred in connection with sickness, work-related accidents, occupational illnesses or maternity, but also by reducing the costs which, failing a collective agreement, would have had to be borne by the employees does not come within the scope of Article 101(1) TFEU. That finding is not called into question by the fact that affiliation to such an agreement is compulsory for all undertakings within the occupational sector concerned of a Member State and that there is no provision for exemption from affiliation. Such an agreement not falling within the ambit of Article 101(1) TFEU, the public authorities are free to make it compulsory for persons who are not formally bound by it. Accordingly, Article 101 TFEU, read in conjunction with Article 4(3) TEU, does not preclude the decision by the public authorities to make compulsory, at the request of the organisations representing employers and employees within a given occupational sector, an agreement which is the result of collective bargaining and which provides for compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all undertakings within the sector concerned, without any possibility of exemption. (see paras 31-33, 36, 38-39, operative part 1) 2. In the context of Union competition law, the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. Any activity consisting in offering goods and services on a given market is an economic activity. Inasmuch as it provides compulsory supplementary social protection for all employees within a particular economic sector, a scheme for supplementary reimbursement of healthcare costs such as that in question in the main proceedings pursues a social objective. However, the social aim of an insurance scheme is not in itself sufficient to preclude the activity in question from being classified as an economic activity. It is further necessary for that scheme to be regarded as applying the principle of solidarity and to be subject to supervision by the State which instituted it. Based on the circumstances in which a body is designated to manage a scheme for supplementary reimbursement of healthcare costs and the margin of negotiation which it has as regards the terms of its undertaking, such a body, although being non-profit-making and acting on the basis of the principle of solidarity, could be classified as an undertaking engaged in an economic activity which was chosen by the social partners, on the basis of financial and economic considerations, from among other undertakings with which it is in competition on the market in the provident services which it offers. (see paras 41-42, 44-46, 64-65) 3. Inasmuch as the activity consisting in the management of a scheme for supplementary reimbursement of healthcare costs is to be classified as economic, Articles 102 TFEU and 106 TFEU do not preclude public authorities from granting a provident society an exclusive right to manage that scheme, without any possibility for undertakings within the occupational sector concerned to be exempted from affiliation to that scheme. The annulment of such an obligation without possibility of exemption could have the result of making it impossible for the body concerned to accomplish the tasks of general economic interest which have been assigned to it under economically acceptable conditions. (see paras 80-81, operative part 2)