Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft.
Date: 2009-03-05
24. As regards, first, the wording of the questions referred for a preliminary ruling, it must first of all be recalled that in proceedings brought under Article 234 EC the Court has no jurisdiction to apply the rules of Community law to a specific case nor, consequently, to classify provisions of national law with respect to such a rule. It may, however, provide the national court with all the criteria for the interpretation of Community law which might be useful in assessing the effects of such provisions of national law (see, to that effect, Case 37/86 Coenen  [1987] ECR 3589, paragraph 8, and Joined Cases C‑145/06 and C‑146/06 Fendt Italiana  [2007] ECR I‑5869, paragraph 30). To that end, the Court may have to reformulate the questions referred to it (see, in particular, Case C‑45/06 Campina  [2007] ECR I‑2089, paragraph 30, and Case C‑420/06 Jager  [2008] ECR I‑1315, paragraph 46).
25. In the present case, while it is true that, with its first question, the referring court asks the Court to apply Articles 81 EC and 82 EC to the dispute in the main proceedings by deciding itself whether MMB is an undertaking within the meaning of those provisions and that it does not, in that respect, specify the circumstances that would be relevant for the purpose of such classification, there is nothing to stop the Court from reformulating the question with a view to providing the referring court with an interpretation of those provisions that would help it resolve the dispute before it.
26. Moreover, according to case-law, where a question referred for a preliminary ruling merely refers to Community law, and does not state which provisions of Community law are in issue, the Court must extract from all the factors provided by the referring court, and in particular from the statement of grounds contained in the order for reference, the provisions of Community law requiring an interpretation, having regard to the subject-matter of the dispute (see, to that effect, in particular, Case 204/87 Bekaert  [1988] ECR 2029, paragraphs 6 and 7).
28. As regards, second, the usefulness of the questions referred for the referring court, it must be pointed out that, in the context of the cooperation between the Court and the national courts provided for by Article 234 EC, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling (see, in particular, C‑238/05 Asnef‑Equifax and Administración del Estado  [2006] ECR I‑11125, paragraph 15, and the case-law cited).
29. However, in exceptional circumstances, the Court must examine the conditions in which the case was referred to it by the national court in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions. None the less, a reference from a national court may be refused only if it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Asnef‑Equifax and Administración del Estado , paragraphs 16 and 17 and the case-law cited).
34. According to consistent case-law, in the context of competition law, the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, in particular, Case C‑41/90 Höfner and Elser  [1991] ECR I‑1979, paragraph 21, and Case C‑280/06 ETI and Others  [2007] ECR I‑10893, paragraph 38).
36. As the Court held in respect of the Italian statutory insurance scheme in respect of accidents at work and occupational diseases, the covering of those risks has for a long time been part of the social protection which Member States afford to all or part of their population ( Cisal , paragraph 32).
37. According to settled case-law, Community law does not detract from the powers of the Member States to organise their social security systems (see, in particular, Case C‑158/96 Kohll  [1998] ECR I‑1931, paragraph 17; Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraph 44; and Case C‑372/04 Watts  [2006] ECR I‑4325, paragraph 92).
38. Moreover, a statutory insurance scheme in respect of accidents at work and occupational diseases such as the one at issue in the main proceedings, in so far as it provides for compulsory social protection for all workers, pursues a social objective (see, by analogy, Cisal , paragraph 34).
40. Moreover, the submissions to the Court show that the scheme is intended to provide all the persons protected with cover against the risks of accidents at work and occupational diseases, irrespective of any fault which may have been committed by the victim or by the employer and therefore without any need to examine the question of the civil liability of the person drawing benefits in respect of the risk activity (see, by analogy, Cisal , paragraph 35).
41. Furthermore, the social aim of such a scheme is also highlighted by the fact that, as the documents before the Court show, benefits are paid even when the contributions due have not been paid, which obviously contributes to the protection of all workers against the economic consequences of accidents at work (see, by analogy, Cisal , paragraph 36).
42. However, as is clear from the case-law of the Court, the social aim of an insurance scheme is not in itself sufficient to preclude the activity in question from being classified as an economic activity (see, to that effect, Case C‑67/96 Albany  [1999] ECR I‑5751, paragraph 86; Joined Cases C‑180/98 to C‑184/98 Pavlov and Others  [2000] ECR I‑6451, paragraph 118; and Cisal , paragraph 37).
43. It remains to be examined, in particular, whether that scheme can be regarded as applying the principle of solidarity and to what extent it is subject to supervision by the State, given that these are factors that are likely to preclude a given activity from being regarded as economic (see, to that effect, Cisal , paragraphs 38 to 44).
– Application of the principle of solidarity
44. As regards, in the first place, the application of the principle of solidarity, an overall assessment of the scheme at issue in the main proceedings shows, first, that it is, like the scheme at issue in Cisal (paragraph 39), financed by contributions the rate of which is not systematically proportionate to the risk insured.
45. The level of contributions depends not only on the risk insured, but also, as is clear from Paragraph 153(1) to (3) of SGB VII, on the earnings of the insured persons, situated between a maximum amount and, where relevant, a minimum amount (see, by analogy, Cisal , paragraph 39).
48. Moreover, according to Paragraph 176 of SGB VII, employers’ liability insurance associations are under an obligation to apportion any excess costs amongst themselves where the expenditure of one association significantly exceeds the average expenditure of all the associations. It follows that the principle of solidarity is thus also applied amongst all branches of industry at the level of the country as a whole, with different employers’ liability insurance associations being grouped together in a risk community, which enables them to effect an equalisation of costs and risks between them (see, by analogy, Joined Cases C‑159/91 and C‑160/91 Poucet and Pistre  [1993] ECR I‑637, paragraph 12, and AOK Bundesverband,  paragraph 53).
51. As regards the first factor, it should be noted that, although a ceiling certainly contributes to the application of the principle of solidarity, especially where the balance of financing is borne by all undertakings in the same category (see, to that effect, Cisal , paragraph 39), the fact that there is no ceiling cannot, alone, have the effect of removing from a scheme that has all the abovementioned features its characteristic of solidarity.
55. Second, it should be noted that, as the Court found in Cisal (paragraph 40), the value of the benefits paid by employers’ liability insurance associations such as MMB is not necessarily proportionate to the insured person’s earnings.
59. The absence of any direct link between the contributions paid and the benefits granted thus entails solidarity between better paid workers and those who, given their low earnings, would be deprived of proper social cover if such a link existed (see Cisal , paragraph 42).
– Supervision by the State
61. However, the fact that employers’ liability insurance associations such as MMB are given that degree of latitude, within the framework of a system of self-management, in order to lay down the factors that determine the amount of contributions and benefits cannot as such change the nature of those associations’ activity (see, to that effect, AOK Bundesverband and Others,  paragraph 56).
65. Therefore, it is clear from the foregoing that, under a statutory insurance scheme such as that at issue in the main proceedings, the amount of contributions and the amount of benefits, which are the two essential elements of such a scheme, appear – subject to verification to be carried out by the referring court –, first, to apply the principle of solidarity, which entails that benefits are not strictly proportionate to contributions and, second, to be subject to State control (see, by analogy, Cisal , paragraph 44).
66. In those circumstances, and subject to verification by the referring court of those two factors relating to the principle of solidarity and supervision by the State, it must be held that, in participating in the management of one of the traditional branches of social security, in this case insurance against accidents at work and occupational diseases, a body such as MMB fulfils an exclusively social function, so that its activity is not an economic activity for the purposes of competition law; accordingly that body does not constitute an undertaking within the meaning of Articles 81 EC and 82 EC (see, to that effect, Cisal , paragraph 45).
71. As regards the interpretation of Articles 49 EC and 50 EC, it should be noted that, as previously stated in paragraph 37 of this judgment, since Community law does not detract from the powers of the Member States to organise their social security, in the absence of harmonisation at Community level it is for the legislation of the Member State concerned to determine the conditions governing the right or duty to be insured with a social security scheme (see, in particular, Kohll , paragraph 18, Smits and Peerbooms , paragraph 45, and Watts , paragraph 92).
74. While it is true that, according to the consistent case-law cited in paragraph 71 of this judgment, in the absence of Community harmonisation, it is for the legislation of each Member State to determine, in particular, the conditions concerning the requirement to be insured with a social security scheme and, consequently, the method of financing that scheme, the Member States must nevertheless comply with Community law when exercising those powers (see, in particular, Kohll , paragraph 19, Smits and Peerbooms , paragraph 46). It follows that that power of the Member States is not unlimited (Case C‑103/06 Derouin [2008] ECR I-0000, paragraph 25).
75. Consequently, the fact that national legislation such as that at issue in the main proceedings concerns only the financing of a branch of social security, that is to say, insurance against accidents at work and occupational diseases, by providing for compulsory affiliation of undertakings covered by the scheme at issue to the employers’ liability insurance associations entrusted by the law with providing such insurance, does not exclude the application of the EC Treaty rules, in particular those relating to freedom to provide services (see C‑18/95 Terhoeve [1999] ECR I‑345, paragraph 35).
78. In this respect, it must be recalled that, according to the case-law, the freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (see, to that effect, in particular, Case C‑205/99 Analir and Others  [2001] ECR I‑1271, paragraph 21; Joined Cases C‑202/04 and C‑94/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 56; and Case C‑208/05 ITC  [2007] ECR I‑181, paragraph 55).
79. Furthermore, according to settled case-law, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State ( Kohll , paragraph 33, and Smits and Peerbooms , paragraph 61).
82. However, since, as the facts of the case in the main proceedings show, the statutory insurance scheme at issue in the main proceedings appears also to be intended to cover risks that may be insured with insurance companies that do not operate in accordance with the principle of solidarity, such a scheme may constitute a restriction of the freedom of companies established in other Member States, who wish to offer contracts of insurance covering such risks in the Member State concerned, to provide services, in that it hinders or renders less attractive, or even prevents, directly or indirectly, the exercise of that freedom (see, to that effect, Freskot , paragraph 63).
83. Moreover, such a scheme in addition is apt to deter, or even prevent, undertakings that are covered by it from approaching such providers of insurance services established in Member States other than the Member State in which they are affiliated, and might also constitute an obstacle to freedom to provide services for those undertakings (see, by analogy, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16; Kohll , paragraph 35, and Smits and Peerbooms , paragraph 69).
84. Nevertheless, such a restriction may be justified where it reflects overriding requirements relating to the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, in particular, Case C‑398/95 SETTG  [1997] ECR I‑3091, paragraph 21; Cipolla and Others , paragraph 61, and Case C‑250/06 United Pan‑Europe Communications Belgium and Others  [2007] ECR I‑11135, paragraph 39).
85. In this respect, it must be noted that, according to the Court’s case-law, the risk of seriously undermining the financial equilibrium of the social security system may constitute an overriding reason in the public interest capable of justifying an obstacle to the principle of freedom to provide services (see, in particular, Kohll , paragraph 41; Smits and Peerbooms , paragraph 72, and Case C‑444/05 Stamatelaki  [2007] ECR I‑3185, paragraph 30).
89. As regards the question whether such legislation does not go beyond what is necessary to achieve the desired objective, the information in the file before the Court indicates, as previously stated in paragraph 81 of this judgment, that the statutory scheme at issue in the main proceedings offers minimal cover, so that, despite the fact that it makes affiliation compulsory, undertakings covered by the scheme may top up their cover by taking out supplementary insurance, assuming it is available on the market. That is a factor militating in favour of the proportionality of a statutory insurance scheme such as that at issue in the main proceedings (see, to that effect, Freskot , paragraph 70).
90. Moreover, as regards the scope of cover such as that provided by that statutory insurance scheme, it is conceivable that, as MMB submits, if compulsory affiliation were to be applied only in respect of certain benefits, such as those aimed at prevention, as Kattner surmises in its submissions, undertakings employing, for example, young employees in good health engaged in non-dangerous activities would seek more advantageous insurance terms from private insurers. The progressive departure of those ‘good’ risks would leave employers’ liability insurance associations such as MMB with an increasing share of ‘bad’ risks, thereby increasing the cost of benefits, particularly for undertakings with older employees engaged in dangerous activities; those associations could no longer offer pensions at an acceptable cost to such undertakings. Such a situation would arise particularly in a case where, as in the main proceedings, the statutory insurance scheme at issue, inasmuch as it applies the principle of solidarity, is characterised, in particular, by the absence of a strictly proportionate link between contributions and risks insured (see, by analogy, Albany , paragraphs 108 and 109).