Cisal di Battistello Venanzio & C. Sas v Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro (INAIL).
Date: 2002-01-22
18 That line of argument cannot be accepted. First, it is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the case 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 (see, in particular, Joined Cases C-223/99 and C-260/99 Agorà and Excelsior [2001] ECR I-3605, paragraphs 18 and 19). In any event, in the present case, there is no suggestion in the order for reference that the Tribunale di Vicenza submitted the questions only on account of the 1997 reform relating to automatic payment of benefits. That reform is in fact mentioned by that court only in the description which it gives of the national legal context.
22 According to settled case-law, the concept of an undertaking in competition law covers any entity engaged in economic activity, regardless of the legal status of the entity or way in which it is financed (see, in particular, Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 74).
23 In that regard, it has also been consistently held that any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7; Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 36; and Pavlov, cited above, paragraph 75).
Arguments of the parties
31 According to settled case-law, Community law does not affect the power of the Member States to organise their social security systems (see, in particular, Case C-158/96 Kohll [1998] ECR I-1931, paragraph 17, and Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, paragraph 44).
32 In particular, the covering of risks of accidents at work and occupational diseases has for a long time been part of the social protection which Member States afford to all or part of their population.
34 The statutory scheme providing insurance against accidents at work and occupational diseases in question in the main proceedings, in so far as it provides for compulsory social protection for all non-salaried workers in the non-agricultural professions who carry out an activity classified as a risk activity by the law, pursues a social objective.
35 Such a 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 for civil liability to be incurred by the person drawing benefits in respect of the risk activity.
36 Furthermore, the social aim of that insurance scheme is highlighted by the fact that benefits are paid even when the contributions due have not been paid, which obviously contributes to the protection of all insured workers against the economic consequences of accidents at work or occupational diseases. Even after the 1997 reform, which abolished that automatic cover for self-employed workers, benefits may still be paid in the event of regularisation, even after contributions have not been paid in good time.
37 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 Pavlov, cited above, paragraph 118). In that regard, two other aspects deserve attention.
39 The insurance scheme is financed by contributions the rate of which is not systematically proportionate to the risk insured. For example, it is clear from the case-file that the rate may not exceed a maximum ceiling, even where the activity carried out entails a high risk, the balance of financing being born by all the undertakings in the same category as regards the risk run. Furthermore, contributions are calculated not only on the basis of the risk linked to the activity of the undertaking concerned but also according to the insured persons' earnings.
40 Second, the amount of benefits paid is not necessarily proportionate to the insured persons' earnings, since, for the calculation of pensions, only salaries situated between a minimum and a maximum corresponding to the average nationwide salary, decreased or increased by 30%, may be taken into consideration.
42 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.
43 In the second place, it is clear from the case-file that the activity of the INAIL, entrusted by law with management of the scheme in question, is subject to supervision by the State and that the amount of benefits and of contributions is, in the last resort, fixed by the State. The amount of benefits is laid down by law and they may be paid regardless of the contributions paid and the financial results of the investments made by the INAIL. Second, the amount of contributions, upon which the INAIL deliberates, must be approved by ministerial decree, the competent minister having the power to reject the scales proposed and to invite the INAIL to submit to him a new proposal taking account of certain information.
44 In summary, it is clear from the foregoing that the amount of benefits and the amount of contributions, which are two essential elements of the scheme managed by the INAIL, are subject to supervision by the State and that the compulsory affiliation which characterises such an insurance scheme is essential for the financial balance of the scheme and for application of the principle of solidarity, which means that benefits paid to insured persons are not strictly proportionate to the contributions paid by them.
45 In conclusion, it may be stated that in participating in this way in the management of one of the traditional branches of social security, in this case insurance against accidents at work and occupational diseases, the INAIL fulfils an exclusively social function. It follows that its activity is not an economic activity for the purposes of competition law and that this body does not therefore constitute an undertaking within the meaning of Articles 85 and 86 of the Treaty.
46 In view of all the foregoing considerations, the answer to be given to the first question must therefore be that the concept of undertaking, within the meaning of Articles 85 and 86 of the Treaty, does not cover a body entrusted by law with the management of a scheme providing insurance against accidents at work and occupational diseases, such as the INAIL.
The second question