AOK Bundesverband, Bundesverband der Betriebskrankenkassen (BKK), Bundesverband der Innungskrankenkassen, Bundesverband der landwirtschaftlichen Krankenkassen, Verband der Angestelltenkrankenkassen eV, Verband der Arbeiter-Ersatzkassen, Bundesknappschaft and See-Krankenkasse v Ichthyol-Gesellschaft Cordes, Hermani & Co. (C-264/01), Mundipharma GmbH (C-306/01), Gödecke GmbH (C-354/01) and Intersan, Institut für pharmazeutische und klinische Forschung GmbH (C-355/01).
Date: 2004-03-16
46. The concept of an undertaking in competition law covers any entity engaged in economic activity, regardless of the legal status of the entity or the way in which it is financed (Case C-41/90 Höfner and Elser  [1991] ECR I-1979, paragraph 21, and Case C-218/00 Cisal  [2002] ECR I-691, paragraph 22).
47. In the field of social security, the Court has held that certain bodies entrusted with the management of statutory health insurance and old-age insurance schemes pursue an exclusively social objective and do not engage in economic activity. The Court has found that to be so in the case of sickness funds which merely apply the law and cannot influence the amount of the contributions, the use of assets and the fixing of the level of benefits. Their activity, based on the principle of national solidarity, is entirely non-profit-making and the benefits paid are statutory benefits bearing no relation to the amount of the contributions (Joined Cases C-159/91 and C-160/91 Poucet and Pistre  [1993] ECR I-637, paragraphs 15 and 18).
48. The fact that the amount of benefits and of contributions was, in the last resort, fixed by the State led the Court to hold, similarly, that a body entrusted by law with a scheme providing insurance against accidents at work and occupational diseases, such as the Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (the Italian National Institute for Insurance against Accidents at Work), was not an undertaking for the purpose of the Treaty competition rules (see Cisal , cited above, paragraphs 43 to 46).
49. On the other hand, other bodies managing statutory social security systems and displaying some of the characteristics referred to in paragraph 47 of the present judgment, namely being non-profit-making and engaging in activity of a social character which is subject to State rules that include solidarity requirements in particular, have been considered to be undertakings engaging in economic activity (see Case C-244/94 Fédération française des sociétés d’assurance and Others  [1995] ECR I-4013, paragraph 22, and Case C-67/96 Albany  [1999] ECR I-5751, paragraphs 84 to 87).
50. Thus, in Fédération française des sociétés d’assurance and Others , at paragraph 17, the Court held that the body in question managing a supplementary old-age insurance scheme engaged in an economic activity in competition with life assurance companies and that the persons concerned could opt for the solution which guaranteed the better investment. In paragraphs 81 and 84 of Albany , concerning a supplementary pension fund based on a system of compulsory affiliation and applying a solidarity mechanism for determination of the amount of contributions and the level of benefits, the Court noted however that the fund itself determined the amount of the contributions and benefits and operated in accordance with the principle of capitalisation. It deduced therefrom that such a fund engaged in an economic activity in competition with insurance companies.
56. The latitude available to the sickness funds when setting the contribution rate and their freedom to engage in some competition with one another in order to attract members does not call this analysis into question. As is apparent from the observations submitted to the Court, the legislature introduced an element of competition with regard to contributions in order to encourage the sickness funds to operate in accordance with principles of sound management, that is to say in the most effective and least costly manner possible, in the interests of the proper functioning of the German social security system. Pursuit of that objective does not in any way change the nature of the sickness funds’ activity.