Job Centre coop. arl.
Date: 1997-12-11
13 In so far as the questions refer to provisions concerning freedom of movement for workers, it need merely be pointed out that it does not follow from the fact that workers are among the founding members of JCC that Article 48 is applicable, since once JCC has been set up and is in operation it will be an independent legal person.
18 The German and Norwegian Governments, and the Commission, maintain that an exclusive right to place employees should be assessed in the light of the principles that can be extracted from the judgment in Höfner and Elser, cited above.
20 Having regard to the foregoing considerations, it is necessary to establish whether public placement offices such as those referred to in Article 11(1) of Law No 264 may be regarded as undertakings within the meaning of Articles 85 and 86 of the Treaty (see Höfner and Elser, cited above, paragraph 20).
21 It must be observed, in the context of competition law, first, that the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of its status and the way in which it is financed and, second, that the placement of employees is an economic activity.
23 The Italian Government further contends that according to Joined Cases C-159/91 and C-160/91 Poucet and Pistre v Assurances Générales de France and Others [1993] ECR I-637, a social security body acting under a monopoly system is not an undertaking within the meaning of Article 86 of the Treaty; in paragraphs 18 and 19 of that judgment the Court held that such activity was not an economic activity, since it was based on the principle of national solidarity and was entirely non-profit-making.
24 However, although it is clear from that judgment that administering mandatory social security schemes such as those described in the references for a preliminary ruling in Poucet and Pistre, cited above, does not constitute an economic activity, that conclusion, in paragraph 17, was based on the same criteria as had been applied in Höfner and Elser when it was concluded that employment procurement must be described as a business activity within the meaning of the Community competition rules.
26 Public placement offices entrusted under the legislation of a Member State with the operation of services of general economic interest, such as those envisaged in Article 11(1) of Law No 264, remain subject to the competition rules pursuant to Article 90(2) of the Treaty unless and to the extent to which it is shown that their application is incompatible with discharge of their duties (see Case 155/73 Sacchi [1974] ECR 409, paragraph 15, and Höfner and Elser, cited above, paragraph 24).
27 As regards the operation of public placement offices enjoying an exclusive right, compliance with which is ensured by a prohibition of any activity as an intermediary in employment relationships on pain of penal and administrative sanctions such as those provided for in Laws Nos 264 and 1369, it must be stated that the application of Article 86 of the Treaty cannot obstruct the performance of the particular task assigned to those offices if they are manifestly not in a position to satisfy demand in that area of the market.
28 Whilst it is true that Article 86 concerns undertakings and may be applied within the limits laid down by Article 90(2) to public undertakings or undertakings vested with exclusive rights or specific rights, the Treaty nevertheless requires the Member States not to take or maintain in force measures which could destroy the effectiveness of that provision (see Case 13/77 Inno v ATAB [1977] ECR 2115, paragraphs 31 and 32, and Höfner and Elser, cited above, paragraph 26). Article 90(1) provides that the Member States are not to enact or maintain in force, in the case of public undertakings and the undertakings to which they grant special or exclusive rights, any measure contrary to the rules contained in the Treaty, in particular those provided for in Articles 85 to 94.
29 Consequently, any measure adopted by a Member State which maintains in force statutory provisions that create a situation in which public placement offices cannot avoid infringing Article 86 is incompatible with the rules of the Treaty.
31 Secondly, the mere creation of such a dominant position by granting an exclusive right within the meaning of Article 90(1) is not as such incompatible with Article 86 of the Treaty (see CBEM, cited above, paragraph 17; Höfner and Elser, cited above, paragraph 29; Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 11; and Case C-323/93 Centre d'Insémination de la Crespelle v Coopérative de la Mayenne [1994] ECR I-5077, paragraph 18). A Member State will contravene 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 (see Case C-387/93 Banchero [1995] ECR I-4663, paragraph 51).
36 Thirdly, the question of the responsibility imposed on a Member State by virtue of Articles 86 and 90(1) of the Treaty arises only if the abusive conduct on the part of the placement agency concerned is liable to affect trade between Member States. That does not mean that the abusive conduct in question must actually have affected such trade. It is sufficient to establish that it is capable of having such an effect (see Michelin v Commission, cited above, paragraph 104).
38 In view of all the foregoing considerations, the reply to the national court must be that public placement offices are subject to the prohibition contained in Article 86 of the Treaty, so long as application of that provision does not obstruct the performance of the particular task assigned to them. A Member State which prohibits any activity as an intermediary between supply and demand on the employment market, whether as an employment agency or as an employment business, unless carried on by those offices, is in breach of Article 90(1) of the Treaty where it creates a situation in which those offices cannot avoid infringing Article 86 of the Treaty. That is the case, in particular, in the following circumstances:
- the public placement offices are manifestly unable to satisfy demand on the market for all types of activity; and
- the actual placement of employees by private companies is rendered impossible by the maintenance in force of statutory provisions under which such activities are prohibited and non-observance of that prohibition gives rise to penal and administrative sanctions; and
- the placement activities in question could extend to the nationals or to the territory of other Member States.
Interpretation of Article 59 et seq. of the Treaty