AG2R Prévoyance v Beaudout Père et Fils SARL.
Date: 2011-03-03
24. It must be borne in mind that Article 101 TFEU, read in conjunction with Article 4(3) EU, requires the Member States not to introduce or maintain in force measures, whether legislative or regulatory, which may render ineffective the competition rules applicable to undertakings (see, inter alia, Albany , paragraph 65; Joined Cases C‑115/97 to C‑117/97 Brentjens’  [1999] ECR I‑6025, paragraph 65; and Case C‑219/97 Drijvende Bokken  [1999] ECR I‑6121, paragraph 55).
26. The Court has a duty to interpret all provisions of European Union law which national courts require in order to determine the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, to that effect, Case C‑45/06 Campina  [2007] ECR I‑2089, paragraph 31, and Case C‑350/07 Kattner Stahlbau  [2009] ECR I‑1513, paragraphs 25 and 26).
29. In that regard, it should be noted, firstly, that the Court has held that agreements entered into within the framework of collective bargaining between employers and employees and intended to improve employment and working conditions must, by virtue of their nature and purpose, be regarded as not falling within the scope of Article 101(1) TFEU (see, to that effect, Albany , paragraph 60; Brentjens’ , paragraph 57; Drijvende Bokken , paragraph 47; Joined Cases C‑180/98 to C‑184/98 Pavlov and Others  [2000] ECR I‑6451, paragraph 67; and Case C‑222/98 van der Woude  [2000] ECR I‑7111, paragraph 22).
35. It follows from paragraphs 26 and 27 of the judgment in van der Woude  that a collective agreement concerning a healthcare insurance scheme which designates a single insurer in the event of subscription to that scheme, thereby excluding any possibility of affiliation to competing insurers, is excluded from the scope of Article 101(1) TFEU.
37. Secondly, it follows from established case-law that, although it is true that Article 101 TFEU is, in itself, concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, that article, read in conjunction with Article 4(3) EU, none the less requires Member States not to introduce or maintain in force measures, whether legislative or regulatory, which may render ineffective the competition rules applicable to undertakings. Such is the case where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions which affect the economic sphere (see, to that effect, Case C‑35/96 Commission  v Italy  [1998] ECR I‑3851, paragraphs 53 and 54; Case C‑266/96 Corsica Ferries France  [1998] ECR I‑3949, paragraphs 35, 36 and 49; and Albany , paragraph 65).
38. In that regard, it should be noted that, in so far as it follows from paragraph 36 of the present judgment that an agreement such as Addendum No 83 does not come within the scope of Article 101(1) TFEU, the public authorities are free to make it compulsory for persons who are not formally bound by it (see, by way of analogy, Albany , paragraph 66; Brentjens’ , paragraph 66; and Drijvende Bokken , paragraph 56).
41. In that regard, it must be borne in mind that, in the context of European Union 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, inter alia, 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).
42. It is clear from established case-law that any activity consisting in offering goods and services on a given market is an economic activity (see, inter alia, Case C‑218/00 Cisal  [2002] ECR I‑691, paragraph 23).
45. However, 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, Albany , paragraph 86; Pavlov and Others , paragraph 118; Cisal , paragraph 37; and Kattner Stahlbau , paragraph 42).
46. It is further necessary to examine, 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 which instituted it, given that these are factors that are liable to preclude a given activity from being regarded as economic (see, to that effect, Kattner Stahlbau , paragraph 43 and the case-law cited).
– Application of the principle of solidarity
59. However, other characteristics relating to the appointment of AG2R as manager of the scheme for supplementary reimbursement of healthcare costs could lead to the view that that body enjoys a degree of autonomy.
60. Firstly, Article L 911‑1 of the Social Security Code provides that supplementary collective guarantees under which employees benefit can be established in different ways. The use of a collective agreement is, in that context, a choice made by the social partners, in the knowledge that that provision also allows such cover to be organised at the level of one undertaking, and not at that of an entire occupational sector.
61. Secondly, under Article 1 of Law No 89‑1009, as amended by Law No 94‑678, provident operations may be entrusted not only to provident societies and mutual insurance associations, but also to insurance companies.
62. It follows from those factors that there is no statutory obligation either on the social partners to appoint AG2R to manage a scheme for supplementary reimbursement of healthcare costs such as that at issue in the main proceedings or on AG2R to assume in fact the management of such a scheme.
63. In that context, Beaudout argues in its observations that there are other provident societies and insurance companies which, prior to the appointment of AG2R by Addendum No 83, offered services which are substantially identical to those provided by that body.
64. Accordingly, the question arises, firstly, as to the circumstances in which AG2R was designated pursuant to Addendum No 83 and, secondly, as to the margin of negotiation enjoyed by that body as to the details relating to its appointment and the repercussion of those factors on the functioning of the scheme concerned as a whole.
65. Based on those circumstances and that margin of negotiation, which it is for the national court to examine, it might be concluded that AG2R, although being non-profit-making and acting on the basis of the principle of solidarity, is an undertaking engaged in an economic activity which was chosen by the social partners, on the basis of financial and economic considerations, from among other undertakings with which it is in competition on the market in the provident services which it offers.
Applicability of Article 106(2) TFEU
66. Inasmuch as AG2R must be regarded as an undertaking engaged in an economic activity for the purposes of Article 102 TFEU, a decision by the public authorities to make compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all of the traditional bakery sector, without possibility of exemption, necessarily implies a grant to that body of an exclusive right to receive and manage the contributions paid by the employers and employees in that sector under that scheme. Accordingly, such a body could be regarded as an undertaking holding exclusive rights within the meaning of Article 106(1) TFEU (see, to that effect, Albany , paragraph 90; Brentjens’ , paragraph 90; and Drijvende Bokken , paragraph 80).
67. Since, because of those exclusive rights, undertakings in the French traditional bakery sector cannot pay contributions to a scheme for supplementary reimbursement of healthcare costs managed by a different body, AG2R has a statutory monopoly in a substantial part of the common market and may be regarded as occupying a dominant position within the meaning of Article 102 TFEU (see, by way of analogy, Pavlov and Others , paragraph 126).
68. According to well-established case-law, however, the mere creation of a dominant position through the grant of special or exclusive rights within the meaning of Article 106(1) TFEU is not in itself incompatible with Article 102 TFEU. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (see Höfner and Elser , paragraph 29; Albany , paragraph 93; Brentjens’ , paragraph 93; and Drijvende Bokken , paragraph 83).
69. Such an abusive practice contrary to Article 106(1) TFEU exists where, in particular, a Member State grants to an undertaking an exclusive right to carry on certain activities and creates a situation in which that undertaking is manifestly not in a position to satisfy the demand prevailing on the market for activities of that kind (see, to that effect, Höfner and Elser , paragraph 31, and Pavlov and Others , paragraph 127).
70. In that regard, Beaudout’s refusal to join the scheme managed by AG2R is based on the assertion that insurance companies offer better cover than the services supplied by AG2R.
71. However, it must be pointed out, firstly, that the fact that undertakings in the French traditional bakery sector are unable to have recourse to other bodies in order to obtain cover for supplementary reimbursement of healthcare costs for the benefit of their employees and the resulting restriction of competition derive directly from the exclusive right conferred on AG2R (see, by way of analogy, Albany , paragraph 97; Brentjens’ , paragraph 97; and Drijvende Bokken , paragraph 87).
72. Secondly, as the Advocate General noted in point 98 of his Opinion, there is no information in the documents supplied by the national court or in the observations submitted to the Court to show that the services supplied by AG2R do not meet the requirements of the undertakings concerned.
73. In those circumstances, it still remains to be determined whether AG2R is entrusted with the operation of services of general economic interest within the meaning of Article 106(2) TFEU.
74. As follows from paragraphs 47 to 52 of the present judgment, a scheme for supplementary reimbursement of healthcare costs such as that managed by AG2R is characterised by a high degree of solidarity. In addition, Addendum No 83 places particular constraints on AG2R, notably constraints of a financial nature, with a view to ensuring the continuity of cover granted to the persons insured.
75. Nevertheless, Beaudout argues that the introduction of a mechanism authorising exemptions from affiliation would not endanger the financial balance of the body which manages the scheme at issue in the main proceedings.
76. In that regard, it must be borne in mind that it follows from the case-law that it is not necessary, in order for the conditions for the application of Article 106(2) TFEU to be fulfilled, that the financial balance or economic viability of the undertaking entrusted with the operation of a service of general economic interest should be threatened. It is sufficient that, in the absence of the exclusive rights at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, defined by reference to the obligations and constraints to which it is subject, or that maintenance of those rights is necessary to enable the holder thereof to perform tasks of general economic interest which have been assigned to it under economically acceptable conditions (see, to that effect, Albany , paragraph 107; Brentjens’ , paragraph 107; and Drijvende Bokken , paragraph 97).
77. It must, however, be held that, if the transfer clause and, as a result, the exclusive right of AG2R to manage the scheme for supplementary reimbursement of healthcare costs for all undertakings in the French traditional bakery sector were to be set aside, that body, although required under Addendum No 83 to offer cover to the employees of those undertakings on the conditions laid down in that addendum, would run the risk of suffering the defection of low-risk insured parties, who would have recourse to undertakings offering them comparable or better cover in return for lower contributions. In those circumstances, the increasing share of ‘bad risks’ which AG2R would have to cover would bring about a rise in the cost of cover, with the result that that body would no longer be able to offer cover of the same quality at an acceptable price.
78. That would a fortiori be the position in the case of a scheme which, like that at issue in the main proceedings, is characterised by a high degree of solidarity by reason of, inter alia, the fixed nature of the contributions and the obligation to accept all risks.
79. Such constraints, which render the service provided by the body concerned less competitive than a comparable service provided by insurance companies not subject to those constraints, argue in justification of the exclusive right of that body to manage such a scheme, without there being any possibility of exemption from affiliation.
80. Consequently, the annulment of a transfer clause such as that laid down in Addendum No 83 could have the result of making it impossible for the body concerned to accomplish the tasks of general economic interest which have been assigned to it under economically acceptable conditions.
81. Accordingly, the answer to the second part of the question, as reformulated, is that, inasmuch as the activity consisting in the management of a scheme for supplementary reimbursement of healthcare costs such as that at issue in the main proceedings is to be classified as economic – this being a matter for the national court to determine – Articles 102 TFEU and 106 TFEU must be interpreted as not precluding, in circumstances such as those of the case in the main proceedings, public authorities from granting a provident society an exclusive right to manage that scheme, without any possibility for undertakings within the occupational sector concerned to be exempted from affiliation to that scheme.
Costs