Judgment — ECLI:EU:C:1999:430
Date: 1999-09-21
Language of the case: Dutch
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Concepts: Matters covered;Public undertakings;Jurisdiction of the Court of Justice;Definition of undertaking
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary of that judgment in FFSA. (163) By contrast, in the present cases - as in FFSA - the level of benefits depends solely on the amount of contributions, the financial results of the investments made by the managing body and the costs generated by that body. 343. Thirdly, the elements of solidarity forming part of the scheme are relevant. That is clear from the judgment in Poucet (164) and from its summary in FFSA. (165) However, the Court considered in FFSA that in the case at issue the elements of solidarity inherent in the scheme were extremely limited and could not deprive the activity of the scheme of its economic nature. (166) In the present cases the elements of sector-wide solidarity are neither more nor stronger than in FFSA, where there was no link between contributions and risk and no selection of risks through questionnaires or medical examinations. The fund had an obligation to accept every employer and employee belonging to the sector. (167) In case of illness exemptions from the obligation to pay contributions were granted. (168) The only difference appears to be that some of the Netherlands funds require the payment of average contributions whereas the contributions in FFSA were related to income. However, since it seems that the Netherlands funds also provide average pensionswhich are not related to salary, the difference is not relevant. Accordingly, in the present cases, too, the elements of solidarity are not strong enough to deprive the funds' activities of their economic nature. 344. All the relevant characteristics of the Netherlands supplementary pension funds so far considered suggest that their activities are of an economic nature. However, the question arises whether that conclusion is affected by the fact that affiliation to the vast majority of those funds is made compulsory by the Netherlands Government on the basis of a special legislative framework. It must be borne in mind that in FFSA membership was optional. 345. In Poucet the Court stated that a system of compulsory contribution was indispensable for application of the principle of solidarity and the financial equilibrium of the schemes at issue. (169) In its summary of Poucet contained in FFSA the Court reiterated that point and held that the elements of solidarity forming part of the schemes at issue necessarily required the various schemes to be managed by a single body and membership of those schemes to be compulsory. (170) Thus, compulsory membership was analysed as a necessary consequence of the presence of strong elements of solidarity. However, it is not clear whether it was a pre-condition of the conclusion as to the non-economic nature of the fund's activities. 346. In FFSA the Court relied on optional membership in concluding that the scheme's activities were of an economic nature. (171) I agree with that point. Optional membership is a particularly strong signal that the activities in question are comparable to those of a private insurer and that they should be scrutinised by competition authorities. 347. However, the case-law illustrates that the Court has not yet decided the present issue, namely whether any conclusions should be drawn from the fact that affiliation to a given scheme is compulsory. In my view, no such conclusions should be drawn. To do so would, first, allow the Member States to withdraw a certain entity's activities from the scope of the competition rules merely by making affiliation to the scheme compulsory. Secondly, compulsory affiliation is to be analysed as the granting of exclusive rights. It follows from Article 90(1) of the Treaty that undertakings enjoying such exclusive rights remain undertakings and are subject to the competition rules. 348. Accordingly, I conclude that the Netherlands supplementary pension funds' activities are of an economic nature and that they are therefore undertakings for the purposes of Community competition law. IX - Articles 90 and 86 349. The next question is whether a Member State infringes Articles 90(1) and 86 of the Treaty, read together, where it sets up a system of compulsory affiliation to sectoral pension funds such as that in the Netherlands and where in the framework of that system it makes affiliation to sectoral pension funds compulsory. 350. It is helpful at this point to recall the main features of the Netherlands system. 351. A first set of rules (rules on sector-wide compulsory affiliation) determines the conditions under which the Government can make affiliation to a certain fund compulsory as regards all undertakings belonging to a given sector. Management and labour representing a sector of industry apply jointly to the Minister with a view to making affiliation to a sectoral pension fund compulsory. The Minister then examines whether the regulations governing the fund's activities fulfil all the legal requirements. Before taking a decision he consults different bodies including the Insurance Board. He then adopts a decree making affiliation compulsory for all undertakings and employees belonging to the sector. In the event of a change in the rules governing the scheme the Minister must adopt a new decree. 352. There is then a second set of rules (rules on individual exemptions) on the circumstances in which individual undertakings or employees may be exempted from compulsory affiliation, where they have or wish to have special alternative pension arrangements. 353. In order to be exempted the alternative scheme must fulfil several conditions. Most importantly the alternative scheme must grant pension benefits which are at least equivalent to those granted by the sectoral fund. 354. The sectoral pension fund itself decides on any request to grant exemption. The fund must grant an exemption where the alternative pension arrangements were in force six months before the submission of the request as a result of which participation in the pension fund was made compulsory ('the six month exemption ground‘). In all other cases the fund enjoys discretion. 355. There is provision for a complaint ('bezwaar‘) against a pension fund's refusal to exempt. The complaint is heard by the Insurance Board. According to the Netherlands Government, the Insurance Board's decision on the complaint is however merely a proposal for conciliation and has no legal authority. There is no appeal against the Board's decision. 356. It appears from the orders for reference, particularly the Kantongerecht's order in Albany, that the civil courts are in principle competent to review thelegality of the funds' decisions. That may be a direct or indirect consequence of the fact that the funds are legal persons organised in the form of a private Stichting (foundation). 357. The extent of the civil courts' powers to review the funds' discretionary decisions on exemptions is, however, not entirely clear. The referring Kantongerecht in Brentjens stated: 'It is not for this court to rule on the circumstance that the Pension Scheme has seen no cause to make use of its discretionary power to grant Brentjens an exemption, since that power stems from the Pension Scheme's own management policy.‘ 358. However, other statements of the referring courts and a formula used in Albany seem to imply that there is a limited power to review: 'The relations between the Pension Scheme and its participants are also governed by requirements of reasonableness and fairness and/or by general principles of sound administration.‘ 359. It appears also from the above formula that the Netherlands courts have some doubts as to which principles govern the question. That again may be a consequence of the hybrid nature of the pension funds' decision. 360. According to the Netherlands Government a modified version of the exemption guidelines has been in force since 26 April 1998. First, whereas previously the only obligatory ground was the six-month exemption ground, three new obligatory exemption grounds have been added. Now an exemption must also be granted where - the employing undertaking forms part or will form part of a group of undertakings which does not fall within the scope of application of the sectoral pension fund in question; - the employing undertaking has its own collective agreement with its employees and is therefore exempt from compulsory participation in a general collective agreement; or - the performance of a sectoral pension fund with respect to the profitability of its investments is significantly inferior over a period of several years to the results of a standard portfolio previously established by the pension fund. Accounting principles are laid down in order to measure that performance. 361. Secondly, new rules as regards the equivalence of the alternative scheme and the calculation of the aforesaid compensation for actuarial loss (172) have been introduced. 362. Thirdly, the possibility of a complaint to the Insurance Board has been abolished. 363. However, since the main proceedings are governed by the previous version of the exemption guidelines, the modified version is not directly relevant for the present proceedings. 364. Finally, it should be recalled that as a matter of fact affiliation to 15 sectoral pension funds has not been made compulsory. 365. I turn now to the analysis of Article 90(1) read together with Article 86. 366. Article 90(1) provides: 'In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 7 and Articles 85 to 94.‘ 367. Article 86 provides: 'Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. ...‘ 368. Albany, Brentjens and Drijvende Bokken maintain that the Netherlands system of compulsory sectoral pension funds infringes those rules in two respects. First, they maintain that the system is such that the pension services offered by the funds do not satisfy, or no longer satisfy, the needs of the undertakings. In that respect they refer to the Court's judgment in Höfner. (173) Secondly, in their view it follows from the judgment in GB-INNO-BM (174) that the funds should not be allowed to decide themselves on individual exemptions from compulsory affiliation. 369. The Funds, the Netherlands and French Governments and the Commission all agree - albeit for different reasons - that Articles 90(1) and 86 are not infringed or that in any event the Netherlands system is justified under Article 90(2). 370. I should make two introductory remarks on Articles 90(1) and 86. 371. First, it is important to consider the place of Articles 90(1) and 86 in the system of the Treaty. As already mentioned, (175) Articles 85 and 86 are addressed to undertakings, not to Member States. However, there is a general principle - flowing from Article 5(2) - that Member States may not adopt or maintain in force any measures, even of a regulatory nature, which could deprive the competition rules of their effectiveness. (176) The case-law on Articles 5 and 85 applying that general principle to State intervention in the context of agreements between undertakings has been examined above. (177) Article 90(1) is another - statutory - application of that general principle. (178) Where Article 90(1) is applicable ratione personae it is lex specialis with respect to Article 5(2). (179) 372. Secondly, it is necessary to bear in mind that the applicability or even an infringement of Article 90(1) has no automatic consequences as to the applicability of Articles 85 and 86 to the undertakings involved. Undertakings enjoying exclusive rights remain subject to the competition rules. (180) The only exception to that rule is where the actual conduct under scrutiny is not attributable to the undertaking, namely where anticompetitive conduct is required by national legislation or where that legislation creates a legal framework which itself eliminates any possibility of competitive activity. (181) Accordingly, and independently of the Court's answers to the questions on Article 90(1), the individual funds will remain in principle subject to the competition rules. 373. In order to answer the national courts' questions it must be established, first, whether the funds are undertakings to which the Netherlands have granted special or exclusive rights, secondly, whether the funds hold a dominant position within a substantial part of the common market, and thirdly, whether the Netherlands has - within the meaning of Article 90(1) - 'enacted or maintained in force a measure contrary to the rules of the Treaty‘, in particular contrary to Article 86, which cannot be justified under Article 90(2). A - Applicability of Article 90(1): undertakings enjoying special or exclusive rights 374. According to the Netherlands Government, the Minister's decree making affiliation compulsory merely creates obligations on the parts of the undertakings concerned but does not grant exclusive rights with regard to pension insurance or even supplementary pensions. 375. In my view that argument is misconceived since the contributions reserved by employers and employees for supplementary pensions are bound to be administered by the funds. Therefore, the funds enjoy an exclusive right to collect and administer the contributions. The funds' exclusive right in that respect is merely the other side of the coin of the sector-wide obligation to affiliate employees to a certain supplementary pension fund. 376. Furthermore, it could also be argued that under the Netherlands rules on individual exemption the funds enjoy a second exclusive right, namely the right to decide on a discretionary basis on applications for individual exemptions from compulsory affiliation. 377. Accordingly, the funds are the kind of undertakings to which Article 90(1) applies. B - Applicability of Article 86: dominant position within a substantial part of the common market 378. According to Albany, Brentjens and Drijvende Bokken, each fund holds a dominant position on the market for supplementary pension insurance services in its particular sector of industry. 379. The Funds assert that they are relatively small actors on the market for pension insurance where many other undertakings are active. In their view, the arguments of the applicants are based on an extremely narrow definition of the relevant market. 380. Initially in its written observations the Commission contested the existence of dominance, mainly on the basis of the arguments used by the Funds. At the hearing however the Commission adopted the opposite position and in that respect joined the French Government. It argued that where affiliation was compulsory there was no alternative choice either on the supply or on the demand side of the market. 381. I can be brief on that point. The Court has consistently held that an undertaking with a statutory monopoly on the provision of certain services in a substantial part of the common market may be regarded as being in a dominant position within the meaning of Article 86 of the Treaty. (182) Thus, the fact that the position of the pension fund is a result of government intervention is not relevant. (183) 382. Where affiliation is compulsory, other forms of private pension insurance are not a valid substitute for a sectoral supplementary pension. For the purposes of supplementary pensions, employers and employees simply do not have the possibility of affiliating themselves elsewhere. Therefore, the fact that each fund operates just one pension scheme and that there are many other, more important schemes, is similarly not relevant. (184) 383. Finally, each pension fund covers the Netherlands' whole territory and therefore a substantial part of the common market. Each of the funds accordingly holds a dominant position with regard to the provision of supplementary pension insurance for a given sector of industry in the Netherlands. C - National measures contrary to Articles 90 and 86 384. As already stated, Albany, Brentjens and Drijvende Bokken contest the compatibility of the Netherlands system with Articles 90(1) and 86 on two grounds, referring to the Court's judgments in Höfner and GB-INNO-BM. 385. As regards the first point, namely the argument that the pension services offered by the funds do not satisfy, or no longer satisfy, the undertakings' needs, the applicants argue that the pension benefits offered are too low, are not related to salary and are therefore systematically inadequate. In their view, there are othernegative secondary effects in that employers have to make further pension arrangements and cannot conclude a single global pension insurance agreement with an insurance company. Thus undertakings have to operate with several layers of pension regime which increases administrative costs and entails other losses of efficiency. 386. Secondly, as regards the argument that the funds should not be allowed to decide themselves on individual exemptions from compulsory affiliation, the applicants contend that the funds are put in a position where they can choose the degree of competition to which they are exposed. 387. In my view, those arguments raise two separate issues: whether and to what extent, first, compulsory affiliation to sectoral pension funds as such and, secondly, the rules on discretionary individual exemptions are compatible with Articles 90(1) and 86. 1. Compatibility of compulsory affiliation with Articles 90 and 86 388. Article 90(1) is, as already stated, a special application of Article 5(2) and imposes obligations on Member States, not directly on undertakings. It follows from its interplay with Article 86 that it cannot be the appropriate legal basis for holding Member States responsible for independent anticompetitive behaviour on the part of undertakings merely because it takes place within their jurisdiction. Article 90(1) can therefore be infringed only where there is a causal link between a Member State's legislative or administrative intervention on the one hand and anticompetitive behaviour of undertakings on the other hand. The Court has held that in the context of Article 90(1) alleged abuses must be the 'direct consequence‘ of the national legal framework. (185) 389. That is one of the reasons for a fundamental dilemma in the application of Article 90(1). On the one hand, the grant of exclusive rights, or in other words the creation of a statutory monopoly, is a structural State measure which typically facilitates anticompetitive behaviour. On the other hand, the wording of Article 90 seems to imply that the grant of exclusive rights as such can in principle not have been the kind of measures which the authors of the Treaty intended Article 90(1) to prohibit. 390. In putting into question compulsory affiliation the applicant undertakings are in effect challenging the funds' exclusive right as such. Thus, it is precisely that dilemma which arises. 391. The Court has consistently held that the mere creation of a dominant position by the grant of exclusive rights will not normally infringe Articles 90(1) and 86. (186) 392. That general principle was at the heart of the Court's judgment in Crespelle. (187) At issue was the French monopoly held by insemination centres for the provision of certain services to breeders. The Court first recalled the above principle. It then held that Articles 90(1) and 86 were however exceptionally infringed if in merely exercising the exclusive right granted to it the undertaking in question could not avoid abusing its dominant position. The Court then examined whether there was a direct causal link between the national law and the alleged abuse, making it clear that the mere grant of the exclusive right was normally not sufficient to make abuses unavoidable within the meaning of its formula. (188) It decided that, on the facts, the legislation did not 'lead‘ the centres to abuse their dominant position. Under a different heading, it then examined whether the centres themselves had committed any abuse under Article 86, for which they alone would have been responsible. 393. However, although exclusive rights are not normally contrary to Articles 90(1) and 86, the Court has consistently held that the Member States' freedom with regard to granting exclusive rights is not without limitations. The Court has stated: '... even though [Article 90(1)] presupposes the existence of undertakings which have certain special or exclusive rights, it does not follow that all the special and exclusive rights are necessarily compatible with the Treaty. That depends on different rules, to which Article 90(1) refers.‘ (189) 394. As regards the scope of those limitations, the formulas used by the Court are not entirely consistent. (190) It is therefore necessary to examine the principal cases in which the Court has had to decide the same difficult question, namely whether an exclusive right as such is compatible with Articles 90(1) and 86. In such cases, the abovementioned dilemma is of course particularly pronounced. 395. The leading judgments on the compatibility of an exclusive right with Article 90(1) can be divided into three groups. I shall call them for convenience the ERT type, (191) the Höfner type (192) and the Corbeau type (193) cases. I will analyse each group's underlying rationale and apply it to the present cases. (a) The ERT-type cases 396. In ERT it was the accumulation of two exclusive rights to broadcast the undertaking's own programmes and to retransmit foreign broadcasts which caused a conflict of interest. The monopolist was led to abuse its dominant position by virtue of a discriminatory policy which favoured its own programmes. 397. In Raso (194) the Italian scheme at issue not only granted dock-work companies an exclusive right to supply temporary labour to certain undertakings but also enabled those companies to compete with undertakings which depended on their services. Again a conflict of interest was inevitable since, merely by exercising its monopoly, the dock-work company could distort competition on the secondary market in its favour. 398. In Merci Convenzionali Porto di Genova (195) the Court, ruling on exclusive rights granted to Italian dock-work undertakings and companies, held: 'In that respect, it appears from the circumstances described by the national court and discussed before the Court of Justice that the undertakings enjoying exclusive rights in accordance with the procedures laid down by the national rules in question are, as a result, induced either to demand payment for services which have not been requested, to charge disproportionate prices ...‘ (196) 399. It is not entirely clear, either from that cited passage or from the rest of the judgment, whether in fact the legislative framework contained features beyond the grant of exclusive rights justifying the application of Article 90(1). Nevertheless, since the Court referred to specific 'circumstances described by the national court‘ I would be inclined to classify that case also in the first group. 400. In those three cases it was not merely the monopoly itself which infringed Articles 90(1) and 86 but the monopoly in conjunction with additional features which made abuses very likely. Structural measures beyond the granting of an exclusive right led the undertakings in question to abuse their dominant position. Only then was there justification for holding the State - at least partly - responsible for the anticompetitive behaviour of the monopolist. 401. The question arises whether the cases now before the Court present an ERT-type situation, and whether there are structural features beyond the existence of the exclusive right which lead the funds to abuse their dominant position. 402. It is argued, first, that no concrete abuse, such as for example excessively high contributions or excessively low benefits, has yet been proved. 403. That fact alone is not decisive. It follows from the structure of Article 90(1) and the case-law of the Court (197) that the issue is not whether abuses have actually been committed but whether the legislative framework leads - even hypothetically - the undertakings to commit such abuses. 404. Nevertheless, I can see nothing in the Netherlands system which induces the funds to commit such abuses. On the contrary, the funds are controlled by different State authorities and by a council of affiliated persons. They are required to invest the collected funds in a prudent way. The tax rules limit maximum pension benefits. The funds' margin of manoeuvre in that respect is therefore limited. Consequently, even in the presence of concrete abuses of that kind, the funds alone would be liable on the basis of Article 86. 405. There are thus no additional structural features in the Netherlands legislation leading the funds to abuse their dominant position. (b) The Höfner-type cases 406. In Höfner (198) the Court was asked to rule on the legality of the monopoly of employment procurement in Germany. It held: '... A Member State is in breach of the prohibition contained in those two provisions only if the undertaking in question, merely by exercising the exclusive right granted to it, cannot avoid abusing its dominant position. Pursuant to Article 86(b), such an abuse may in particular consist in limiting the provision of a service, to the prejudice of those seeking to avail themselves of it. A Member State creates a situation in which the provision of a service is limited when the undertaking to which it grants an exclusive right extending to executive recruitment activities is manifestly not in a position to satisfy the demand prevailing on the market for activities of that kind and when the effective pursuit of such activities by private companies is rendered impossible by the maintenance in force of a statutory provision under which such activities are prohibited and non-observance of that prohibition renders the contracts concerned void.‘ (199) 407. In Job Centre (200) the Italian State actively enforced a similar employment procurement monopoly through criminal proceedings. The Court confirmed its judgment in Höfner. It stressed the particularities of the market for the provision of services relating to the placement of employees and held: 'On such an extensive and differentiated market, which is, moreover, subject to enormous changes as a result of economic and social developments, public placement offices may well be unable to satisfy a significant portion of all requests for services.‘ (201) 408. In those two cases, contrary to the ERT-type cases, the State did nothing more than grant an exclusive right. Nevertheless the Court found that, owing to the specific economic context and the nature of the services involved, the monopolist could not avoid abusing its dominant position by constantly 'limiting production, markets or technical development to the prejudice of consumers‘ within the meaning of Article 86(b). In the exceptional circumstances the Court therefore felt justified in making a real exception to the principle of not challenging Member States' freedom to grant exclusive rights. 409. However, by referring in Höfner to an undertaking manifestly not in a position to satisfy demand the Court made it clear that it exercises only marginal review of the legality of monopolies. 410. The question arises whether the present cases present a Höfner-type situation where the fund merely by exercising its exclusive right cannot avoid abusing its dominant position. Is the factual and economic context such that compulsory supplementary pension funds are manifestly and systematically unable to satisfy demand? 411. The parties strongly disagree on that point. The Court is not in a position to resolve the question, which requires detailed economic and factual assessments. In a preliminary reference submitted by a national court in accordance with Article 177 of the Treaty, those assessments are for the national courts. Some guidance may none the less be helpful concerning the factors which the national courts may find relevant in making such assessments. 412. First and foremost, the national courts must bear in mind the respective responsibilities of the Netherlands Government and the funds within Articles 90(1) and 86. A Member State may be held responsible only where there is a system failure, i.e. where abuses are the 'direct consequence‘ of its regulatory or decisional intervention, whereas undertakings enjoying exclusive or special rights are alone responsible for any infringement of the competition rules attributable exclusively to them. Articles 90(1) and 86 will therefore not be infringed where the only reason for a fund's being 'manifestly not able to satisfy demand‘ is its own bad management or investment policy. 413. Secondly, the national courts should be aware that that kind of question is always one of degree, raises issues of considerable complexity and entails judgments on important economic and social choices. It must therefore be emphasised that the Court in the Höfner-type situation has limited its and the national courts' review to national systems which are manifestly inadequate. 414. Finally, because the granting of exclusive rights involves difficult economic assessments, Member States must in areas such as this enjoy a margin of assessment in deciding whether the monopolist can satisfy demand. That is a further ground for limiting the scope of review by the national court. 415. According to a supplementary argument adduced by the Commission, the funds can in any event not be compared to a normal insurer, since they have to limit their activities to one sector and are not allowed to make a selection of the good and the bad risks. 416. In my view, those arguments are related to Article 90(2) and lead me directly to the third group of cases, namely the Corbeau-type cases. (c) The Corbeau-type cases 417. In Corbeau (202) the Court was asked to rule on the compatibility with Articles 90(1) and 86 of the monopoly for postal services in Belgium. The Court did not clearly identify which, if any, features of the Belgian legislation were contrary to Articles 90(1) and 86. Instead it stated that Article 90(1) had to beread together with Article 90(2) and immediately started a balancing process on the justification of the scope of the monopoly. It held inter alia: '[Article 90(2)] thus permits the Member States to confer on undertakings to which they entrust the operation of services of general economic interest, exclusive rights which may hinder the application of the rules of the Treaty on competition in so far as restrictions on competition, or even the exclusion of all competition, by other economic operators are necessary to ensure the performance of the particular tasks assigned to the undertakings possessed of the exclusive right.‘ (203) 418. Recently in Corsica Ferries France (204) the Court followed the same approach when considering the exclusive rights of mooring groups in two important Italian ports. Without ruling on a prima facie infringement of Article 90(1), it held that in any event those exclusive rights were justified under Article 90(2). 419. Even the early judgment in Sacchi (205) falls in my view into that category. In the operative part of the judgment (206) the Court referred to Article 90 without specifying, as it did elsewhere in the judgment, the applicable paragraph. In the light of the Opinion of Advocate General Reischl (207) the possibility that the Court had Article 90(2) in mind cannot be excluded. 420. It follows from that case-law that where the exception in Article 90(2) applies the grant of exclusive rights is in any event justified. Is Article 90(2) applicable in the present cases? 421. Article 90(2) provides: 'Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.‘ 422. The first issue is whether the funds are entrusted with the operation of services of general economic interest. In my view there can be little doubt on that point. 423. In the Netherlands the statutory pension scheme grants merely a basic pension related to the minimum salary. Thus, supplementary pension schemes help to guarantee that a large proportion of the population enjoys pension benefits going beyond that minimum. The funds thus have a social objective. They do not act primarily in their own or in their affiliated members' individual private interest, (208) but mainly in the general interest. The Community legislature recently indirectly recognised the important social function of supplementary pensions when it adopted a directive on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community. (209) 424. Moreover, the funds are, as already mentioned, non-profit-making. They are obliged to accept every employer and employee belonging to the sector. They are therefore not allowed to make any selection of risks through questionnaires or medical examinations. There is no link between the risk and the contributions. All persons affiliated pay an average contribution which does not take into account, for example, the age of employees or the size of the employing undertaking. In case of incapacity for work, exemptions from the obligation to pay contributions are granted. 425. Accordingly, the decree making affiliation compulsory is an act of a public authority entrusting the fund concerned with a service of general interest. 426. The next issue, whether abolishing the system of compulsory affiliation would obstruct the performance, in law or in fact, of the particular tasks assigned to the funds, is therefore decisive. 427. The Funds and the Netherlands Government contend that the maintenance of their exclusive rights is a necessary condition for the survival of the pension schemes. Referring to the Court's judgment in Corbeau, they argue that in the absence of compulsory affiliation their financial equilibrium would be threatened. In that respect they use the argument of a negative spiral, where the 'good risks‘ (e.g. big undertakings with a young and healthy workforce engaged in non-dangerous activities) would look for more advantageous arrangements with private insurers leaving the funds with a higher concentration of bad risks. That in turn would lead to an increase in the cost of pensions for employees of e.g. small and medium sized companies with an aged personnel engaged in dangerousactivities. As a consequence, it would become more and more difficult, maybe even impossible, to insure bad risks at acceptable prices. 428. Furthermore, they contend that it is only on the basis of compulsory affiliation that average contributions (not linked to risk) and average pensions (not linked to salary) are possible. In their view, that kind of pension insurance could never be offered by private insurers. 429. According to Albany, Brentjens and Drijvende Bokken, the Netherlands system of compulsory affiliation goes beyond what is necessary to achieve the objective of an adequate level of social protection. 430. First, collective agreements containing minimum pension requirements would suffice. The detailed rules for the administration of collected pension contributions should in principle be left to employers. Minimum requirements could also be imposed by law where necessary. A good example of that approach is a law in force since 1 January 1998 which prohibits prior medical examination in the context of group pension insurance contracts. 431. With regard to the argument that average premiums and benefits are only feasible in the context of compulsory affiliation, it is said that a system of average contributions is in fact no longer an essential feature of supplementary pension schemes and is not required by law. Conversely, various sectoral pension schemes operate with average premiums and without compulsory affiliation. 432. Finally, there is empirical evidence that compulsory affiliation is not necessary since 15 supplementary pension schemes in the Netherlands operate without compulsory affiliation. 433. In my view, too many important points concerning the factual background are still disputed between the parties and/or not entirely clear. 434. Why for example can certain sectoral pension funds survive in the absence of compulsory affiliation? The Netherlands Government's written answer to a question put by the Court still leaves some doubts and was moreover partly contested by the applicants. At the hearing the parties disagreed also on the point whether, and if so to what extent, average contributions and benefits were still a typical feature of the Netherlands sectoral supplementary pension funds. 435. Accordingly, the Court is again not in a position to decide whether abolishing compulsory affiliation would obstruct the performance in law or in fact of the particular tasks assigned to the pension funds. The detailed examination of all the economic, financial and social matters involved is for the national courts, which will have to take into account the following. 436. Article 90(2) seeks to reconcile the Member States' interest in using certain undertakings as an instrument of economic or social policy with the Community's interest in ensuring compliance with the rules on competition and the internal market. (210) Since it is a provision permitting derogation from the Treaty rules, it must be interpreted strictly. (211) 437. However, when Member States define the services of general economic interest which they entrust to certain undertakings, they cannot be precluded from taking account of national policy objectives. (212) In that respect it must be borne in mind that Member States retain competence to organise their social security systems. (213) They therefore have a wide margin of discretion in that area. 438. The Court has recently made it clear that for the exception of Article 90(2) to apply it is not necessary that the survival of the undertaking itself is threatened. (214) It follows from the wording of that rule that it is sufficient that the application of the competition rules would obstruct the performance, in law or in fact, of the special obligations incumbent upon that undertaking. 439. The national courts will therefore have to determine first what precisely are the public service obligations assigned to the funds and secondly whether the performance of those obligations would be obstructed in the absence of compulsory affiliation. 440. Accordingly, compulsory affiliation as such infringes Articles 90(1) and 86 only where by reason of the Netherlands regulatory framework the funds are manifestly not in a position to satisfy demand and where abolishing compulsory affiliation would not obstruct the performance of the services of general interest assigned to the funds. 2. The rules on discretionary exemptions from compulsory affiliation 441. As already stated, the Netherlands system contains rules on individual exemptions from compulsory affiliation where employers or employees have made or wish to make special alternative pension arrangements. Three features of thoserules are important. First, the decision on individual exemptions is taken by the competent sectoral fund itself. Secondly, in most cases the fund enjoys a discretion. Thirdly, as a consequence of that discretion the national courts exercise only marginal review of the fund's decision. (215) 442. Albany, Brentjens and Drijvende Bokken, referring to the judgment in GB-INNO-BM, (216) contend that those rules infringe Articles 90(1) and 86 because they put the funds in a position where they can themselves decide upon the degree of competition to which they are exposed. 443. In contrast, the Funds argue that their discretion is de facto limited. In practice the funds cannot grant exemptions more often because that would create dangerous precedents. More exemptions would endanger sector-wide solidarity, compulsory affiliation as such and ultimately the existence of the funds. It follows, in their view, that the funds are not comparable to the public body in GB-INNO-BM. 444. The Commission contends, first, that the possibility of individual exemptions is an exceptional opening in an otherwise hermetically closed system. In its view, it would not be coherent to examine the compatibility of the rules on individual exemptions where compulsory affiliation as such is compatible with the Treaty. 445. If I correctly understand the Commission's argument, any rule whatsoever concerning individual exemptions would automatically be lawful once compulsory affiliation, and therefore the funds' exclusive right as such, had been held to be compatible with Articles 90(1) and 86. 446. I do not agree with that view. 447. The reach of each fund's monopoly is determined not only by the decree making affiliation compulsory but also by the available possibilities for exemption. If the funds' exclusive right as so defined were held to be lawful, it would indeed be contradictory to claim that Articles 90(1) and 86 required that further (obligatory) grounds for exemption should be created. To that extent I agree with the Commission. 448. However, the problem here is different. The issue is not the material scope of the funds' exclusive right as determined by the decree on compulsory affiliation and by the available grounds for exemption, but the formal mechanism by which decisions on that scope are taken. Where a fund takes a discretionary decision on an application for individual exemption, it in fact itself determines the scope of itsstatutory monopoly. That delegation of decision-making powers is not a necessary and inherent part of rules on the material scope of the exclusive right. It can therefore be severed from those rules and challenged separately. 449. At the hearing, the Commission argued, secondly, that nothing in the Netherlands regulatory framework led the funds to misuse their discretion. Referring to Crespelle, (217) the Commission stated that the funds alone would therefore be responsible for any abuse. 450. Again I am not convinced. By entrusting the funds with the decision on individual exemptions, the Netherlands legislation creates an obvious conflict of interest. 451. By adopting rules on discretionary exemption, the Netherlands legislature has recognised that there may be situations where undertakings belonging to a certain sector may have legitimate interests in applying for an exemption. One can think for example of undertakings belonging to a group of undertakings with its own group pension policy, or of other situations which are now laid down as obligatory exemption grounds in the latest version of the exemption guidelines. (218) 452. By contrast, sectoral funds have an obvious interest in maintaining a high level of affiliation. More affiliated persons means, for example, greater economies of scale as regards administrative costs, more buying power on the investment markets and a more advantageous spreading of risks. 453. The exemption guidelines in the version applicable to the main proceedings entrust the funds with the task of balancing those two sets of interests. Thus, in a certain sense the fund occupies simultaneously the role of judge and party. 454. It is settled case-law that the creation of similar conflicts of interest infringes Articles 90(1) and 86. 455. In France v Commission (219) the Court was asked to rule on a directive based on Article 90(1) and (3) (220) which obliged Member States to ensure that with regard to telecommunications terminal equipment responsibility for regulatory and supervisory matters was entrusted to a body independent of the undertaking operating the public network. The Court held: '... a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. To entrust an undertaking which markets terminal equipment with the task of drawing up the specifications for such equipment, monitoring their application and granting type-approval in respect thereof is tantamount to conferring upon it the power to determine at will which terminal equipment may be connected to the public network, and thereby placing that undertaking at an obvious advantage over its competitors.‘ (221) 456. In GB-INNO-BM (222) the Court reiterated that statement and added that 'the maintenance of effective competition and the guaranteeing of transparency require‘ that the body adopting regulatory measures and granting type-approval is independent of any undertaking acting on the market for terminal equipment. 457. In Tranchant (223) the Court held more specifically that the requirement of independence 'seeks to eliminate any risk of conflict of interest between on the one hand the regulatory authority ... and, on the other hand, undertakings ...‘. 458. In other similar cases the Court has also exercised a tight control of the requirement of independence. (224) In Decoster (225) and Taillandier (226) it held for example that independence was not guaranteed where different directorates of the French Ministry for Posts and Telecommunications were responsible simultaneously for operating the public network and implementing commercial policy on the one hand and granting type-approval for terminal equipment on the other hand. 459. A different type of conflict of interest has been held to infringe Articles 90(1) and 86 in the judgments in ERT (227) and recently in Raso. (228) Particularly in the latter judgment the Court explains clearly why such conflicts of interest are a threat for the competitive process and for competitors. 460. Moreover, it follows from the judgments in GB-INNO-BM (229) and in Raso (230) that it is the fact that the legal framework causes the conflict of interest in question which is contrary to Articles 90(1) and 86. It is not necessary to identify any particular case of abuse. 461. In the present cases the dangers inherent in such a conflict of interest are considerably aggravated by the two other features of the system, namely the discretion of the funds and the limited judicial review of their decisions. 462. With regard to a similar situation, albeit in a different context, the Court held in Meroni v High Authority: 'The consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a discretionary power implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy.‘ (231) 463. As regards more particularly the funds' discretion, the Court's judgment in Lagauche (232) is relevant. The Belgian telecommunications operator was also entrusted with the task of granting type-approval for telecommunications equipment. In contrast to the situation in the GB-INNO-BM case, it was however the minister who determined the technical requirements necessary for type-approval. The sole task of the monopolist was therefore to check whether the equipment complied with the requirements determined by the minister. In the absence of any discretion, the Court did not find an infringement of Articles 90(1) and 86. 464. As regards the importance of full judicial review, it may suffice to point to the same two cases GB-INNO-BM (233) and Lagauche. (234) In both judgments the Court - albeit in the context of Article 30 - made it clear that decisions of a body with regulatory or supervisory authority which potentially affect the rights which individuals derive from Community law must be subject to judicial review. 465. In the present cases, the exemption guidelines create a framework where all three decisive features, namely conflict of interest, discretion and merely marginaljudicial review, are present. I conclude therefore, without its being necessary to take a stance on the new version of the exemption guidelines, that the Netherlands rules on discretionary individual exemption infringe Articles 90(1) and 86. 466. It remains to deal briefly with the Commission's final arguments. It contends first that as a matter of fact the management board of the fund is the only body in a position to decide on applications for exemption. Secondly, it invokes the possibility of a complaint to the Insurance Board. 467. In my view the first argument is - at least partly - contradicted by the second. If the independent Insurance Board can hear complaints concerning decisions of the fund, why then is it not able to take decisions on individual exemption? Why should no other independent body be able to strike the balance between the funds' and the affiliated persons' interests? As regards the second argument, it became apparent in the course of the written and oral procedure that, as already stated, the Board cannot take legally binding decisions. Thus, the complaint to the Insurance Board is not an appropriate remedy. 468. Accordingly, rules such as the Netherlands exemption guidelines infringe Articles 90(1) and 86 in so far as they entitle the funds to take discretionary decisions on applications for individual exemption from compulsory affiliation which are subject only to marginal judicial review. X - The legal effects of the Court's judgment 469. The Hoge Raad asks the Court expressly to spell out the consequences of its judgment. 470. It follows from the foregoing that two features of the Netherlands legislation must be distinguished: compulsory affiliation as such and the rules on discretionary individual exemptions. 471. The first issue would arise only if the national court were to hold that the Netherlands system of compulsory affiliation as such, or a decree making affiliation to a particular fund compulsory, was contrary to Articles 90(1) and 86, and concerns the consequences of such a judgment. 472. Contrary to the Funds' contention, that national judgment would be based on the lex specialis of Articles 90(1) and 86 and not on Article 5(2). (235) Articles90(1) and 86 have direct effect. (236) National laws and decrees making affiliation compulsory would therefore in principle be inapplicable. (237) 473. The Netherlands Government asks the Court to limit the temporal effects of its ruling. 474. An interpretation which the Court gives to a rule of Community law merely clarifies and defines the meaning and scope of a rule of Community law as it must have been understood and applied from the time of its coming into force. The Court has however held that exceptionally, in application of the general principle of legal certainty and taking account of the serious effects which its judgment might have, the temporal effects of its ruling, as regards the past, may be restricted. (238) 475. Against such a limitation it could be argued that, since the Hoge Raad's reference in Van Schijndel, (239) the economic actors concerned could have had some doubts about the legality of compulsory affiliation to supplementary pension funds. (240) 476. In the area of pensions, on the other hand, the need for a limitation ratione temporis is particularly acute. Judgments without such limitations could retroactively upset the financial balance of many pension schemes and put into question legal situations which have exhausted all their effects in the past. (241) I am therefore inclined to support an exceptional limitation ratione temporis of the effects of the judgment. 477. It must be stressed that it is for the Court alone to decide on such an exceptional restriction and that it may be allowed only in the actual judgment ruling on the interpretation sought. (242) 478. In the present cases, according to my analysis, it is the national court which will have to take the definitive decision on the compatibility of compulsoryaffiliation with Community law. In my view, that does not however prevent the Court from taking the final decision on the effects ratione temporis of its ruling, by explicitly basing its ruling on the assumption that, in the light of its interpretation, the national courts declare the Netherlands framework contrary to Articles 90(1) and 86. 479. The second issue concerns the effects of a judgment declaring rules on individual exemptions such as those found in the Netherlands incompatible with Articles 90(1) and 86. 480. Owing to the direct effect of Articles 90(1) and 86, the rules on discretionary individual exemption are inapplicable. Since those rules are severable, as already mentioned, the rules on compulsory affiliation as such would not be affected. (243) Other effects would again be a matter of national law within the limits imposed by Community law. XI - Conclusion Accordingly the questions referred in these cases should in my opinion be answered as follows: (1) Article 85(1) of the Treaty is not infringed where representatives of employers and employees within a particular sector of the economy agree collectively to set up a single sectoral pension fund and apply jointly to the authorities to make affiliation to the fund compulsory for all persons belonging to that sector. (2) Articles 5 and 85 of the Treaty are not infringed where, at the joint request of the representatives of employers and employees, a Member State makes participation in a sectoral pension scheme compulsory for all undertakings belonging to that sector. (3) The Netherlands sectoral pension funds are 'undertakings‘ within the meaning of the competition rules of the Treaty. (4) Articles 90(1) and 86 of the Treaty preclude rules on compulsory affiliation to sectoral pension funds such as the rules encountered in the Netherlands only where, owing to the regulatory framework and the decree making affiliation compulsory, the funds are manifestly not in a position to satisfy demand and where the abolition of compulsory affiliation would notobstruct the performance of the services of general interest assigned to the funds. Articles 90(1) and 86 of the Treaty preclude rules such as the Netherlands exemption guidelines in so far as they entitle the sectoral pension funds to take discretionary decisions on applications for individual exemption from compulsory affiliation which are subject only to marginal judicial review. (5) In so far as national rules are held to be contrary to Articles 90(1) and 86 of the Treaty, they are inapplicable, subject to a potential restriction imposed by the Court on the effects ratione temporis of its ruling. 1: Original language: English. 2: - Stb. 1956, 281. 3: - Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v SPF [1995] ECR I-4705. 4: - Stb. 1949, J 121. 5: - Kamerstukken II 1948-1949, 785, No 5, p. 2. 6: - Hand. II, 1 February 1949, p. 1101. 7: - Staatscourant 1953, 1. 8: - E. Lutjens, Pensioenvoorzieningen voor werknemers: juridische beschouwingen over ouderdomspensioen, Zwolle 1989, p. 364. 9: - Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871. 10: - Joined Cases C-320/90, C-321/90 and C-322/90 [1993] ECR I-393. 11: - Case C-307/95 [1995] ECR I-5083. 12: - See Meilicke, cited in note 8, paragraph 26 of the judgment, and Telemarsicabruzzo, cited in note 9, paragraph 6. 13: - Telemarsicabruzzo, cited in note 9, paragraph 7 of the judgment, and Case C-157/92 Banchero [1993] ECR I-1085, paragraph 5 of the order. 14: - Max Mara, cited in note 10, paragraph 8 of the orders and Case C-326/95 Banco de Fomento e Exterior [1996] ECR I-1385, paragraph 7. 15: - Max Mara, cited in note 10, paragraph 8 of the orders and Case C-2/96 Sunino and Data [1996] ECR I-1543, paragraph 5. 16: - Question 1 in Brentjens, question 2 in Drijvende Bokken. 17: - Question 2 in Brentjens, question 3 in Drijvende Bokken, to a certain extent question 2 in Albany. 18: - Question 3 in Brentjens, question 1 in Drijvende Bokken, question 1 in Albany. 19: - Question 4 in Brentjens, questions 4 and 5 in Drijvende Bokken, question 3 in Albany. 20: - Question 6 in Drijvende Bokken. 21: - Joined Cases C-430/93 and C-431/93, cited in note 2. 22: - See however the Opinion of Advocate General Lenz in Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraphs 273 and 274; see also the Commission's Decision of 30 September 1986 86/507/EEC Irish Banks' Standing Committee, OJ 1986 L 295, p. 28 and the reply to the Written Question No 777/89, OJ 1990 C 328, p. 3. I will discuss those statements in more detail below. 23: - Article 7, Ordonnance n. 86-1243 du 1er décembre 1986. 24: - Conseil de la Concurrence, 26 June 1990, Décision N. 90-D-21 Syndicats d'artistes-interprètes. 25: - CA Paris, 1re Chambre, 6 March 1991, Syndicat français des artistes interprètes et autres, reproduced in Contrats-Concurrence-Consommation, 1991, 108: '[L]a prohibition édictée par l'ordonnance ... intéresse toute forme de concertation, quels qu'en soient les auteurs et les victimes directes, dès lors qu'objectivement elles ont pour objet ou peuvent avoir pour effet d'empêcher, de restreindre ou de fausser le jeu de la concurrence sur un marché.‘ 26: - See the reasoning in the Décision of the Conseil de la Concurrence, cited in note 23. 27: - Conseil de la Concurrence, Avis N. 92-A-01 of 21 January 1992 Syndicat français des assureurs-conseils. 28: - Kom. 1987:4, p. 61; HE 148/1987 vp., p. 14 and HE 162/1991 vp., p. 9. 29: - KHO taltio 1586, 11 April 1995. 30: - Lov nr. 384, 10 June 1997. 31: - Ufr. 1965.634H cf. Ufr. 1965B.260. 32: - '... soweit sie geeignet sind, die Erzeugung oder die Marktverhältnisse für den Verkehr mit Waren oder gewerblichen Leistungen durch Beschränkung des Wettbewerbs zu beeinflussen.‘ 33: - Amtliche Begründung für den Entwurf eines Gesetzes gegen Wettbewerbsbeschränkungen, BT-Drucks. 2/1158, S. 30. 34: - Judgment of 27 June 1989, 1 AZR 404/88, partly reproduced in WuW/E VG 347. 35: - Letter of the Bundeskartellamt of 31 January 1961 - Z 2 - 121 100 - 465/60, reproduced in WuW/E BKartA 339. 36: - Written submissions of the Bundeskartellamt in proceedings before the Landgericht Berlin of 3 April 1989 - P-178/88, summarised in WuW 1989, pp. 563 and 564. 37: - Judgment of the Kammergericht of 21 February 1990 - Kart. U 4357/89, reproduced in WuW/E OLG 4531. 38: - See note 35. 39: - R. Whish, Competition Law, Butterworths, 3rd edition, 1993, at p. 77. See also, under the former Restrictive Trade Practices Act 1976, the employment exceptions in section 9(6) (goods) and section 18(6) (services): agreements relating to remuneration, conditions of employment, hours of work and working conditions were not registrable. 40: - Labour Practices in TV and Film-making, Cm 666 (1989). 41: - 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations is hereby declared to be illegal.‘ 42: - Duplex Printing Press Co. v Deering, 254 US 443. 43: - 312 US 219. 44: - Connell Construction v Plumbers and Steamfitters Local Union No 100, 2 June 1975, 421 US 616. 45: - 7 June 1965, 381 US 657. 46: - 7 June 1965, 381 US 676. 47: - 116 S. Ct. 2116 (1996). 48: - See, for example, Joined Cases 209/84 to 213/84 Ministère Public v Asjes [1986] ECR 1425, paragraph 40 of the judgment. 49: - Joined Cases 209/84 to 213/84 Ministère public v Asjes, cited in note 47, paragraph 40 of the judgment; Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803. 50: - Case C-393/92 Almelo [1994] ECR I-1477. 51: - Case 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021, paragraphs 6 to 9 of the judgment. 52: - Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405. 53: - Case 45/85, cited in note 51, paragraph 15 of the judgment. 54: - Case C-41/90 Höfner and Elser [1991] ECR I-1979. 55: - Case C-55/96 [1997] ECR I-7119. 56: - Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637. 57: - Case C-244/94 Fédération Française des Sociétés d'Assurances [1995] ECR I-4013. 58: - Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR I-3395, paragraph 43 of the judgment. 59: - Case C-238/94 García and Others v Mutuelle de Prévoyance Sociale d'Aquitaine and Others [1996] ECR I-1673. 60: - 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, OJ 1992 L 228, p. 1. 61: - See to the same effect the Opinion of Advocate General Lenz in Bosman, in which he stated: 'There is in my view no rule to the effect that agreements which concern employment relationships are in general and completely outside the scope of the provisions on competition in the EC Treaty‘, Case C-415/93, cited in note 21, paragraph 273 of the Opinion. In paragraph 138 of its judgment, the Court considered that it was not necessary to rule on the interpretation of Articles 85 and 86 of the Treaty. 62: - Case C-280/93 Germany v Council [1994] ECR I-4973, paragraphs 78 and 87 of the judgment. 63: - Community Charter of the Fundamental Social Rights of Workers, The Heads of State or Government of the Member States of the European Community meeting in Strasbourg on 9 December 1989. 64: - Opinion 2/94 [1996] ECR I-1759, paragraph 33. 65: - Case C-260/89 ERT [1991] ECR I-2925, paragraph 41 of the judgment. 66: - Case 175/73 [1974] ECR 917, paragraph 14 of the judgment. 67: - Case C-415/93, cited in note 21, paragraphs 79 and 80 of the judgment. 68: - Joined Cases C-193/87 and C-194/87 Maurissen and European Public Service Union v Court of Auditors [1990] ECR I-95, paragraphs 11 to 16 and 21 of the judgment. 69: - National Union of Belgian Police v Belgium, 27 October 1975, Eur. Court HR Rep., Series A, 19 (1975), paragraph 39. 70: - National Union of Belgian Police v Belgium, cited in note 68, paragraph 40. 71: - National Union of Belgian Police v Belgium, cited in note 68, paragraph 39; Swedish Engine Drivers' Union v Sweden, 6 February 1976, Eur. Court HR Rep., Series A, 20 (1976), paragraph 40. 72: - National Union of Belgian Police v Belgium, cited in note 68, paragraph 38. 73: - Swedish Engine Drivers' Union v Sweden, cited in note 70, paragraph 39. 74: - Schmidt and Dahlström v Sweden, 6 February 1976, Eur. Court HR Rep., Series A, 21 (1976), paragraph 36. 75: - Swedish Engine Drivers' Union v Sweden, cited in note 70, paragraph 38 of the judgment. 76: - National Union of Belgian Police v Belgium, cited in note 68, paragraph 38. The Court commented upon the meaning of Article 6(1) of the Charter in the course of interpreting Article 11 of the European Convention on Human Rights. 77: - Swedish Engine Drivers' Union v Sweden, cited in note 70, paragraph 39. The Court commented upon the meaning of Article 6(2) of the Charter again in the course of interpreting Article 11 of the European Convention on Human Rights. 78: - Schmidt and Dahlström v Sweden, cited in note 73, paragraph 34 of the judgment. 79: - Gustafsson v Sweden, 25 April 1996, R.J.D., 1996-II, No 9. 80: - Partly dissenting opinion of Judges Ryssdal, Spielmann, Palm, Foighel, Pekkanen, Loizou, Makarczyk and Repik in Gustafsson v Sweden, cited in note 78. 81: - Dissenting opinion of Judge Martens, joined by Judge Matscher in Gustafsson v Sweden, cited in note 78, paragraph 6. 82: - Gustafsson v Sweden, cited in note 78, paragraph 45 of the judgment. 83: - Gustafsson v Sweden, cited in note 78, paragraph 53 of the judgment. 84: - Case C-15/96 Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47; Case C-35/97 Commission v France, judgment of 24 October 1998. 85: - Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607. 86: - Case C-44/94 R v Minister of Agriculture, Fisheries and Food, ex parte Fishermen's Organizations and Others [1995] ECR I-3115, paragraph 55 of the judgment. 87: - OJ 1992 C 191, p. 90. 88: - See for example Articles 4, 6, 17(3) and 18(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of working time, OJ 1993 L 307, p. 18. 89: - Irish Banks' Standing Committee, OJ 1986 L 295, p. 28, paragraph 16. 90: - Notice concerning the assessment of cooperative joint ventures pursuant to Article 85 of the EEC Treaty, OJ 1993 C 43 p. 2., III.2(d). 91: - Case 26/76 Metro [1977] ECR 1875, paragraph 43 of the judgment; Case 42/84 Remia [1985] ECR 2545, paragraph 42; Synthetic Fibres, OJ 1984 L 207, p. 17, paragraph 37; and Ford/Volkswagen, OJ 1993 L 20, p. 14, paragraph 23. 92: - Case C-262/88 Barber [1990] ECR I-1889. 93: - Case C-41/90 Höfner and Elser, cited in note 53. 94: - See, for example, Case 30/87 Bodson v Pompes Funèbres des Régions Libérées [1988] ECR 2479; Case C-41/90 Höfner, cited in note 53, and Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43. 95: - Case C-73/95 P Viho v Commission [1996] ECR I-5457 and the cases quoted in that judgment at paragraph 16. 96: - Case 170/83 Hydrotherm v Compact [1984] ECR 2999 (emphasis added), paragraph 11 of the judgment. 97: - Case C-41/90, cited in note 53. 98: - Case C-343/95 Calì e Figli [1997] ECR I-1547. 99: - Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73, and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 539 of the judgment. 100: - Ibid., paragraph 542 of the judgment. 101: - Case C-262/88 Barber, cited in note 91. 102: - See the judgments in Case C-343/95 Calì, cited in note 97, and Case C-41/90 Höfner, cited in note 53. 103: - See recently, with respect to Italian customs agents, Case C-35/96 Commission v Italy [1998] ECR I-3851. 104: - See, for a detailed comparison with 'normal‘ undertakings, the judgment in Commission v Italy, cited in note 102, paragraphs 36 to 38. 105: - For example Articles 48 and 59 of the Treaty. 106: - See Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 88 of the judgment; and Case C-244/94 Fédération Française des Sociétés d'Assurances, cited in note 56, paragraph 21. 107: - Implicit in Case 127/73 BRT v Sabam and Fonior [1974] ECR 313, paragraph 7 of the judgment; Opinion of Advocate General Mayras in that Case, at page 322; Opinion of Advocate General Lenz in Case C-415/93 Bosman, cited in note 21, paragraph 256. 108: - Opinion of Advocate General Lenz in Case C-415/93 Bosman, cited in note 21, paragraph 258. 109: - See the problems in Case T-18/96 R SCK and FNK v Commission [1996] ECR II-407 and in Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739. 110: - Case 123/83 BNIC v Clair [1985] ECR 391, paragraph 17 of the judgment. 111: - Case 71/74 Frubo v Commission [1975] ECR 563, paragraphs 30 and 31 of the judgment. 112: - Case 28/77 Tepea v Commission [1978] ECR 1391, paragraph 41 of the judgment. 113: - Case 107/82 AEG v Commission [1983] ECR 3151, paragraph 38 of the judgment. 114: - Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112 of the judgment; and Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck, cited in note 105, paragraph 86. 115: - Cited in note 88. 116: - Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grovvareselskab [1994] ECR I-5641, paragraph 31 of the judgment; Case C-399/93 Oude Luttikhuis and Others v Coberco [1995] ECR I-4515, paragraph 10; Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission, judgment of the Court of First Instance of 15 September 1998, paragraphs 136 and 137. 117: - Case 56/65 Société Technique Minière v Machinenbau Ulm [1966] ECR 235; Case C-234/89 Delimitis [1991] ECR I-935; Case 78/70 Deutsche Grammophon v Metro [1971] ECR 487; Case 258/78 Nungesser v Commission [1982] ECR 2015; and Case 161/84 Pronuptia [1986] ECR 353. 118: - Case C-399/93 Oude Luttikhuis and Others v Coberco, cited in note 115, paragraph 12 of the judgment. 119: - OJ 1968 C 75, p. 3 corrected by OJ 1968 C 84, p. 14. 120: - OJ 1993 C 43, p. 2. 121: - Case C-399/93 Oude Luttikhuis, cited in note 115, paragraphs 13 and 14 of the judgment. 122: - Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 37 of the judgment; Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraphs 115 to 119; and Cement, OJ 1994 L 343, p. 112, point 8. 123: - Cement, cited in note 121. 124: - Case C-2/91 Meng [1993] ECR I-5751. 125: - Case C-245/91 Ohra [1993] ECR I-5851. 126: - Case 267/86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16 of the judgment; Case C-2/91 Meng, cited in note 123, paragraph 14; Case C-185/91 Reiff [1993] ECR I-5801, paragraph 14; Case C-245/91 Ohra, cited in note 124, paragraph 10; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 14; Case C-96/94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo [1995] ECR I-2883, paragraphs 20 and 21; Joined Cases C-140/94, C-141/94 and C-142/94 DIP and Others v Comune di Bassano del Grappa and Comune di Chioggia [1995] ECR I-3257, paragraphs 14 and 15; Case C-70/95 Sodemare, cited in note 57, paragraphs 41 and 42; Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraphs 35, 36 and 49; and Case C-35/95 Commission v Italy, cited in note 102, paragraphs 53 and 54. 127: - See the ruling in Case C-2/91 Meng, cited in note 123 and Case C-245/91 Ohra, cited in note 124. 128: - See, for a recent example, Case C-266/96 Corsica Ferries France, cited in note 125, paragraph 51 of the judgment. 129: - Case C-323/93 Centre d'insémination de la Crespelle v Coopérative de la Mayenne [1994] ECR I-5077, paragraph 15 of the judgment. 130: - See paragraph 207 above. 131: - Joined Cases C-159/91 and C-161/91 Poucet and Pistre, cited in note 55. 132: - Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v SPF, cited in note 2. 133: - Cited in note 56. 134: - See above in paragraph 214. 135: - Case C-41/90 Höfner, cited in note 53, paragraph 21 of the judgment; and Case C-55/96 Job Centre, cited in note 54, paragraph 21. 136: - Case C-41/90 Höfner, cited in note 53. 137: - Case 118/85 Commission v Italy [1987] ECR 2599, paragraphs 6 to 16 of the judgment; and Case C-387/93 Banchero [1995] ECR I-4663, paragraph 50. 138: - Case C-343/95 Calì e Figli, cited in note 97. 139: - Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck, cited in note 105, paragraph 88 of the judgment; Opinion of Advocate General Lenz in Case C-415/93 Bosman, cited in note 21, paragraph 317. 140: - Case 155/73 Sacchi [1974] ECR 409, paragraphs 13 and 14 of the judgment. 141: - Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 18 and 19 of the judgment. 142: - Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 8 of the judgment. 143: - Case C-260/89 ERT, cited in note 64, paragraph 33 of the judgment; Case C-311/84 CBEM v CLT and IPB [1985] ECR 3261, paragraph 17. 144: - Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 9 of the judgment. 145: - Case C-41/90 Höfner and Elser, cited in note 53, paragraph 22 of the judgment. 146: - Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ v Commission [1983] ECR 3369, paragraph 20 of the judgment; Case 71/74 Frubo v Commission, cited in note 110, paragraphs 30 and 31. 147: - Case T-6/89 Enichem [1991] ECR II-1623, paragraph 235 of the judgment. 148: - Case 118/85 Commission v Italy, cited in note 136, paragraphs 7 and 8 of the judgment; and Case C-343/95 Calì e Figli, cited in note 97, paragraphs 16 and 17 of the judgment. 149: - Case 30/87 Bodson v Pompes Funèbres des Régions Libérées [1988] ECR 2479, paragraph 18 of the judgment. 150: - Case 118/85 Commission v Italy, cited in note 136, paragraphs 7 and 8 of the judgment; and Case C-343/95 Calì e Figli, cited in note 97, paragraphs 16 and 17. 151: - Case C-364/92 SAT Fluggesellschaft v Eurocontrol, cited in note 93, paragraph 30 of the judgment; Case C-343/95 Calì e Figli, cited in note 97, paragraphs 22 and 23. 152: - Case C-41/90 Höfner and Elser, cited in note 53. 153: - Joined Cases C-159/91 and C-161/91 Poucet and Pistre, cited in note 55. 154: - Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, cited in note 2, paragraphs 53 to 65 of the Opinion. 155: - Case C-244/94 Fédération Française des Sociétés d'Assurances, cited in note 56. 156: - See paragraph 312 above and notes 134 to 137. 157: - Paragraph 14 read in conjunction with paragraph 16 of the judgment. 158: - Paragraph 11 of the judgment. 159: - Paragraph 18 of the judgment. 160: - See paragraph 312 above and notes 138 and 139. 161: - See paragraph 313 above and notes 145 and 146. 162: - Paragraph 12 of the judgment. 163: - Paragraph 15 of the judgment. 164: - Paragraphs 10 and 18. 165: - Paragraph 15. 166: - Paragraph 19 of the judgment. 167: - Paragraph 9 of the judgment. 168: - Paragraph 10 of the judgment. 169: - Paragraph 13 of the judgment. 170: - Paragraph 15. 171: - Paragraphs 17 and 22 of the judgment. 172: - See paragraph 15 above. 173: - Case C-41/90, cited in note 53. 174: - Case C-18/88 [1991] ECR I-5941. 175: - See paragraph 301 above. 176: - Case 13/77 Inno v ATAB [1977] ECR 2115, paragraphs 30 and 31 of the judgment; Case 66/86 Ahmed Saeed Flugreisen v Zentrale zur Bekämpfung Unlauteren Wettbewerbs, cited in note 48, paragraph 48; and Case C-260/89 ERT, cited in note 64, paragraph 35. 177: - See paragraphs 298 to 305 above. 178: - Case 13/77 Inno v ATAB, cited in note 175, paragraphs 32 and 42 of the judgment; and Case 66/86 Ahmed Saeed Flugreisen v Zentrale zur Bekämpfung Unlauteren Wettbewerbs, cited in note 48, paragraph 50. 179: - Case C-323/93 Centre d'insémination de la Crespelle v Coopérative de la Mayenne, cited in note 128, paragraph 15 of the judgment. 180: - Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraphs 43 and 44 of the judgment; Case 311/84 CBEM v CLT and IPB, cited in note 142, paragraphs 16 and 17; and Case C-323/93 Centre d'insémination de la Crespelle v Coopérative de la Mayenne, cited in note 128, paragraphs 24 to 27. 181: - Joined Cases C-359/95 P and C-379/95 P Commission and France v Ladbroke [1997] ECR I-6265, paragraphs 32 to 37 of the judgment. 182: - Case 311/84 CBEM v CLT and IPB, cited in note 142, paragraph 16 of the judgment; Case C-41/90 Höfner and Elser, cited in note 53, paragraph 28; Case C-260/89 ERT, cited in note 64, paragraph 31; Case C-179/90 Merci Convenzionali Porto di Genova, cited in note 143, paragraph 14; Case C-163/96 Raso and Others [1998] ECR I-533, paragraph 25; and Case C-266/96 Corsica Ferries France, cited in note 125, paragraph 39. 183: - Case 311/84 CBEM v CLT and IPB, cited in note 142, paragraph 16 of the judgment. 184: - Case 26/75 General Motors [1975] ECR 1367, paragraph 9 of the judgment. 185: - Case C-323/93 Centre d'Insémination de la Crespelle v Coopérative de la Mayenne, cited in note 128, paragraph 20 of the judgment. 186: - See, for example, Case C-311/84 CBEM v CLT and IPB, cited in note 142, paragraph 17 of the judgment; Case C-41/90 Höfner and Elser, cited in note 53, paragraph 29; Case C-179/90 Merci Convenzionali Porto di Genova, cited in note 143, paragraph 16; and Case C-320/91 Corbeau, cited in note 141, paragraph 11. 187: - Case C-323/93, cited in note 128. 188: - See, for a similar line of argument, Case C-387/93 Banchero, cited in note 136, and Case C-55/96 Job Centre, cited in note 54. 189: - Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 22 of the judgment. 190: - See for example Case C-179/90 Merci Convenzionali Porto di Genova, cited in note 143, paragraph 17 of the judgment, and Case C-203/96 Chemische Afvalstoffen Dusseldorp [1998] ECR I-4075, at paragraph 61. 191: - Case C-260/89, cited in note 64; also Case C-179/90 Merci Convenzionali Porto di Genova, cited in note 143; and Case C-163/96 Raso and Others, cited in note 181. 192: - Case C-41/90, cited in note 53, and Case C-55/96 Job Centre, cited in note 54. 193: - Case C-320/91, cited in note 141; also Case C-266/96 Corsica Ferries France, cited in note 125; and Case 155/75 Sacchi, cited in note 139. 194: - Case C-163/96, cited in note 181. 195: - Case C-179/90, cited in note 143. 196: - Paragraph 19 of the judgment. 197: - Case C-163/96 Raso and Others, cited in note 181, paragraph 31 of the judgment; and Case C-18/88 GB-INNO- BM, cited in note 173, paragraphs 23 and 24. 198: - Case C-41/90, cited in note 53. 199: - Paragraphs 29 to 31 of the judgment. 200: - Case C-55/96, cited in note 54. 201: - Paragraph 34 of the judgment. 202: - Case C-320/91, cited in note 141. 203: - Paragraph 14 of the judgment. 204: - Case C-266/96, cited in note 125. 205: - Case 155/73, cited in note 139. 206: - Paragraph 14, third subparagraph. 207: - At page 443. 208: - Case 127/73 BRT v SABAM and Fonior, cited in note 106, paragraph 23 of the judgment, and Case 172/80 Züchner v Bayerische Vereinsbank, cited in note 50, paragraph 7 a contrario. 209: - Council Directive 98/49/EC, OJ 1998 L 209, p. 46. 210: - Case C-157/94 Commission v Netherlands [1997] ECR I-5699, paragraph 39 of the judgment. 211: - Case C-157/94, paragraph 37 of the judgment. 212: - Case C-157/94, cited in note 209, paragraph 40 of the judgment. 213: - Case 283/82 Duphar v Netherlands [1984] ECR 523, paragraph 16 of the judgment; Joined Cases C-159/91 and C-161/91 Poucet and Pistre, cited in note 55, paragraph 6; and Case C-70/95 Sodemare and Others v Regione Lombardia, cited in note 57, paragraph 27. 214: - Case C-157/94 Commission v Netherlands, cited in note 209, paragraph 43 of the judgment. 215: - See paragraphs 352 to 363 above. 216: - Case C-18/88, cited in note 173. 217: - Case C-323/93, discussed above at paragraph 392. 218: - See paragraph 360 above. 219: - Case C-202/88 France v Commission, cited in note 188. 220: - Compare paragraph 13 of the judgment. 221: - Paragraph 51 of the judgment. 222: - Case C-18/88, cited in note 173, paragraph 26 of the judgment. 223: - Case C-91/94 Tranchant [1995] ECR I-3911, paragraph 19 of the judgment. 224: - Joined Cases C-271/90, C-281/90, C-289/90 Spain and Others v Commission ('telecommunications services‘) [1992] ECR I-5833, paragraph 22 of the judgment; Case C-69/91 Decoster [1993] ECR I-5335; Case C-92/91 Taillandier [1993] ECR I-5383. 225: - Cited in note 223. 226: - Cited in note 223. 227: - Case C-260/89, cited in note 64, paragraph 37 of the judgment. 228: - Case C-163/96, cited in note 181, paragraphs 28 to 31 of the judgment. 229: - Case C-18/88, cited in note 173, paragraphs 23 and 24. 230: - Paragraph 31 . 231: - Case 9/56 Meroni v High Authority [1958] ECR 133, p. 152. 232: - Joined Cases C-46/90 and C-93/91 Lagauche [1993] ECR I-5267. 233: - Case C-18/88, cited in note 173, paragraphs 34 to 36 of the judgment. 234: - Cited in note 231, paragraphs 25 to 29 of the judgment. 235: - See paragraph 304 above and Case C-323/93 Centre d'insémination de la Crespelle v Coopérative de la Mayenne, cited in note 128, paragraph 15 of the judgment. 236: - Case C-179/90 Merci Convenzionali Porto di Genova, cited in note 143, paragraph 23 of the judgment. 237: - Case 34/67 Lück v Hauptzollamt Köln [1968] ECR 245, p. 251; Joined Cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE'90, judgment of 22 October 1998, paragraphs 18 to 21. 238: - Case C-231/96 EDIS, judgment of 15 September 1998, paragraphs 15 and 16. 239: - Joined Cases C-430/93 and 431/93, cited in note 2. 240: - Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others, cited in note 21, paragraph 146 of the judgment. 241: - Case C-262/88 Barber, cited in note 91, paragraph 44 of the judgment. 242: - Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Finanze v Salumi [1980] ECR 1237, paragraph 11 of the judgment. 243: - See in a comparable situation the Opinion of Advocate General Tesauro in Case C-69/91 Decoster, cited in note 223, at p. 5371.