Case C-262/18 P: Appeal brought on 16 April 2018 by the European Commission against the judgment of the General Court (Second Chamber) delivered on 5 February 2018 in Case T-216/15: Dôvera zdravotná poisťovňa, a.s. v European Commission

Appeal brought on 16 April 2018 by the European Commission against the judgment of the General Court (Second Chamber) delivered on 5 February 2018 in Case T-216/15: Dôvera zdravotná poisťovňa, a.s. v European Commission

(Case C-262/18 P)

Parties

Appellant: European Commission (represented by: P.J. Loewenthal, F. Tomat, Agents)

Other parties to the proceedings: Dôvera zdravotná poisťovňa a.s., Slovak Republic, Union zdravotná poisťovňa a.s.

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Second Chamber) of 5 February 2018 in Case T-216/15, Dôvera v Commission;

— refer the case back to the General Court for consideration;

— alternatively, make use of its power under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union to give final judgment in the matter; and

— reserve the costs of the present proceedings, if it refers the case back to the General Court, or order Dôvera zdravotná poisťovňa a.s. and Union zdravotná poisťovňa a.s. to pay the costs of the proceedings, if it gives final judgment in the matter.

Pleas in law and main arguments

By the contested judgment, the General Court annulled Commission Decision (EU) 2015/248 of 15 October 2014 on the measures SA.23008 (2013/C) (ex2013/NN) granted by the Slovak Republic to Spoločná zdravotná poisťovňa a.s. (SZP) and Všeobecná zdravotná poist'ovňa a.s. (VZP) (OJ 2015, L 41, p. 25).

The Commission puts forward three grounds in support of its appeal of the contested judgment.

First, the Commission considers the General Court to have failed to fulfil its duty to state reasons under Article 36 and 53, paragraph 1, of the Statute of the Court of Justice. In the contested judgment, the General Court claims to annul the contested decision by upholding the applicant’s second plea at first instance, namely that the Commission was wrong to conclude that the Slovak compulsory health insurance scheme is predominantly solidarity-based. However, the legal standard it in fact applied to annul that decision is the one that the applicant proposed under its first plea at first instance, namely that the mere presence of any economic features transforms the provision of health insurance into an economic activity. Since the legal standard under the applicant’s first and second pleas were mutually exclusive, the Commission is not in a position to understand on what basis the contested decision was annulled.

Second, the Commission considers the General Court to have committed an error of law by misinterpreting the notion of undertaking within the meaning of Article 107(1) TFEU. In the contested judgment, the General Court upheld the Commission’s conclusion that the Slovak compulsory health insurance scheme was predominantly solidarity-based, as well as its explanation that its economic features were introduced to ensure that its social and solidarity objectives were attained. It nevertheless found that the Commission committed an error of assessment by concluding that the activity carried out by health insurers under the Slovak compulsory health insurance scheme is not economic in nature. It arrived at this conclusion by noting insurers’ ability to make, use and distribute part of their profits and the competition between insurers for customers and on quality of services. It then found that the mere presence of for-profit insurers in Slovakia transform SZP and VZP by contagion into undertakings within the meaning of Article 107(1) TFEU. In so concluding, the General Court disregarded the case-law according to which a health insurance scheme that is predominantly solidarity-based and whose economic features were introduced to ensure the continuity of the scheme and the attainment of the social and solidarity objectives underpinning it is non-economic in nature, so that the health insurance providers operating under that scheme are not undertakings.

Third, the Commission considers the General Court to have distorted the evidence submitted to it at first instance in concluding that there was ‘intense and complex competition’ between health insurance providers in Slovakia, when the case file only pointed to a very limited amount of competition for the provision of non-mandatory benefits free of charge.