Pavel Pavlov and Others v Stichting Pensioenfonds Medische Specialisten.
Date: 2000-09-12
41 On 31 December 1997 there were 5 951 members, 1 063 former members and 4 220 pensioners receiving pension payments. Of the pensioners, 1 238 were widows or widowers, 185 were orphans and 2 797 were in receipt of old-age pensions. At the end of 1997, invested capital amounted to NLG 6 600 million.
The main proceedings and the questions referred for a preliminary ruling
42 Mr Pavlov and the other applicants in the main proceedings are five medical specialists practising in a hospital in Nijmegen. It is common ground that they were obliged to be members of the Fund until the end of 1995.
43 However, Mr Pavlov and the other applicants take the view that, as from 1 January 1996, they ought to have been exempted from compulsory membership of the Fund by virtue of Article 1(2) of the Fund's rules. Since that date they have been practising as salaried employees and they submit that, as such, they are required to be members of the Bedrijfspensioenfonds voor de Gezondheid, Geestelijke en Maatschappelijke Belangen (Pension Fund for the Health-Care and Psychological and Social Welfare Sector). On that ground, Mr Pavlov and the other applicants ceased paying contributions to the Fund.
44 The Fund does not accept that Mr Pavlov and the other applicants practise their profession under a contract of employment and has issued enforcement orders against them for the recovery of arrears of premiums.
51 According to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as competition, where the factual and legal issues are often complex (see, in particular, Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7, Case C-284/95 Safety High-Tech v S. & T. [1998] ECR I-4301, paragraphs 69 and 70, Case C-341/95 Bettati [1998] ECR I-4355, paragraphs 67 and 68, Case C-67/96 Albany [1999] ECR I-5751, paragraph 39, and Joined Cases C-115/97, C-116/97 and C-117/97 Brentjens' [1999] ECR I-6025, paragraph 38).
52 The information provided in orders for reference must not only be such as to enable the Court to provide a useful answer but must also give the governments of the Member States and other interested parties an opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court of Justice. It is the Court's duty to ensure that the opportunity of submitting observations is safeguarded, bearing in mind that, under Article 20, only orders for reference are notified to the interested parties (see, in particular, the order of 30 April 1998 in Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 6, the order of 11 May 1999 in Case C-325/98 Anssens [1999] ECR I-2969, paragraph 8, and the judgments in Albany, paragraph 40, and Brentjens', paragraph 39).
54 Furthermore, even though the Greek Government may have taken the view in this case that the information provided by the national court was not sufficient to enable it to adopt a position on certain aspects of the questions submitted to the Court, that information was amplified by the case-file forwarded by the national court, by the written observations and by the answers given to the questions asked by the Court. All that information, summarised in the Report for the Hearing, was made available to the governments of the Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity, if needed, to amplify their observations (see Albany, paragraph 43, and Brentjens', paragraph 42).
67 It should be borne in mind that, at paragraphs 64, 61 and 51 respectively of the judgments in Albany, Brentjens' and Drijvende Bokken, the Court held that agreements concluded in the context of collective bargaining between employers and employees and aimed at improving employment conditions are not, by reason of their nature and purpose, to be regarded as falling within the scope of Article 85(1) of the Treaty.
69 On this point, it should be emphasised that the Treaty contains no provisions, like Articles 118 and 118b of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) or Articles 1 and 4 of the Agreement on social policy (OJ 1992 C 191, p. 91), encouraging the members of the liberal professions to conclude collective agreements with a view to improving their terms of employment and working conditions and providing that, at the request of members of the professions, such agreements be made compulsory by the public authorities, for all the members of the profession in question.
74 The Court has consistently held that, in the context of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21, Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, paragraph 17, Case C-244/94 Fédération Française des Sociétés d'Assurance [1995] ECR I-4013, paragraph 14, Albany, paragraph 77, Brentjens', paragraph 77, and Drijvende Bokken, paragraph 67).
75 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, and Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 36).
76 In the present cases, the medical specialists who are members of the LSV provide, in their capacity as self-employed economic operators, services on a market, namely the market in specialist medical services. They are paid by their patients for the services they provide and assume the financial risks attached to the pursuit of their activity.
77 The self-employed medical specialists who are members of the LSV therefore carry on an economic activity and are thus undertakings within the meaning of Articles 85, 96 and 90 of the Treaty. The complexity and technical nature of the services they provide and the fact that the practice of their profession is regulated cannot alter that conclusion (see, to that effect, Case C-35/96 Commission v Italy, cited above, paragraphs 37 and 38).
85 Suffice it to say in this regard that the fact that a professional organisation is governed by a public-law statute does not preclude the application of Article 85 of the Treaty. According to its wording, that provision applies to agreements between undertakings and decisions by associations of undertakings. So, the legal framework within which an association decision is taken and the legal definition given to that framework by the national legal system are irrelevant as far as the applicability of the Community rules on competition and, in particular, Article 85 of the Treaty, are concerned (Case 123/83 BNIC v Clair [1985] ECR 391, paragraph 17, and Case C-35/96 Commission v Italy, cited above, paragraph 40).
87 Admittedly, a decision taken by a body having regulatory powers within a given sector might fall outside the scope of Article 85 of the Treaty where that body is composed of a majority of representatives of the public authorities and where, on taking a decision, it must observe various public-interest criteria (Case C-96/94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo [1995] ECR I-2883, paragraphs 23 to 25, and Case C-35/96 Commission v Italy, cited above, paragraphs 41 to 44).
91 It is settled case-law that, in defining the criteria for the application of Article 85(1) of the Treaty to a specific case, account should be taken of the economic context in which undertakings operate, the products or services covered by the decisions of those undertakings, the structure of the market concerned and the actual conditions in which it functions (Case C-399/93 Oude Luttikhuis and Others [1995] ECR I-4515, paragraph 10).
109 The Court also held, at paragraph 19 of its judgment in Poucet and Pistre, cited above, that that concept did not include bodies entrusted with the management of certain compulsory social security schemes, based on the principle of solidarity. First of all, under the sickness and maternity scheme forming part of the system in question, benefits were the same for all beneficiaries, even though contributions were proportional to income. Next, under the old-age pension scheme, pensions were funded by those in employment. Furthermore, statutory pension entitlements were not proportional to the contributions paid into the old-age pension scheme. Finally, schemes with a surplus contributed to the financing of those with structural financial difficulties. That solidarity made it necessary for the various schemes to be managed by a single body and for membership of the schemes to be compulsory.
110 In contrast, in Fédération Française des Sociétés d'Assurance and Others, cited above, the Court held that a non-profit-making body which managed an old-age pension scheme intended to supplement a basic compulsory scheme, established by law as an optional scheme and operating according to the principle of capitalisation, was an undertaking within the meaning of Articles 85, 86 and 90 of the Treaty. Optional membership, application of the principle of capitalisation and the fact that benefits depended solely on the amount of the contributions paid by beneficiaries and on the performance of the investments made by the managing body meant that that body carried on an economic activity in competition with life-assurance companies. Neither the social objective pursued, nor the fact that the body was non-profit-making, nor the requirements of solidarity, nor the other rules concerning, in particular, the restrictions to which it was subject in making investments altered the fact that the managing body was carrying on an economic activity.
112 In reaching that conclusion, the Court found that the sectoral pension funds in question in the cases mentioned in the paragraph above themselves determined the amount of the contributions and benefits, that they operated in accordance with the principle of capitalisation and that, by contrast with the benefits provided by bodies charged with the management of compulsory social security schemes of the kind in point in Poucet and Pistre, the amount of benefits provided by the funds depended on the performance of the investments which they made and in respect of which they were subject, like an insurance company, to supervision by the Insurance Board. Furthermore, the fact that a sectoral pension fund was in certain circumstances required or empowered to exempt undertakings from membership meant that it was carrying on an economic activity in competition with insurance companies (see Albany, paragraphs 81 to 84, Brentjens', paragraphs 81 to 84, and Drijvende Bokken, paragraphs 71 to 74).
117 The fact that the Fund is non-profit-making and the solidarity aspects emphasised by the Fund and the governments which have submitted observations are not sufficient to relieve the Fund of its status as an undertaking within the meaning of the competition rules of the Treaty (see Albany, paragraph 85, Brentjens', paragraph 85, and Drijvende Bokken, paragraph 75).
118 It is true that the pursuit of a social objective, the abovementioned solidarity aspects and the restrictions or controls on investments made by the Fund may render the service provided by the Fund less competitive than comparable services provided by insurance companies. Although such constraints do not prevent the activity engaged in by the Fund from being regarded as an economic activity, they might justify the exclusive right of such a body to manage a supplementary pension scheme (see Albany, paragraph 86, Brentjens', paragraph 86, and Drijvende Bokken, paragraph 76).
126 The Fund therefore has a legal monopoly in the supply of certain insurance services in a professional sector of a Member State and thus on a substantial part of the common market. In that respect it must be regarded as occupying a dominant position within the meaning of Article 86 of the Treaty (see Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 14, and Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 17).
127 However, the mere creation of a dominant position through the grant of exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86 of the Treaty. 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 granted to 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 (Höfner and Elser, cited above, paragraph 29, Case C-260/89 ERT [1991] ECR I-2925, paragraph 37, Merci Convenzionali Porto di Genova, cited above, paragraphs 16 and 17, Case C-323/93 Centre d'Insémination de la Crespelle [1994] ECR I-5077, paragraph 18, and Case C-163/96 Raso and Others [1998] ECR I-533, paragraph 27). As is clear from paragraph 31 of the judgment in Höfner and Elser, there is an abusive practice contrary to Article 90(1) of the Treaty, in particular, where a Member State grants to an undertaking an exclusive right to carry on certain activities and creates a situation in which the undertaking is manifestly not in a position to satisfy the demand prevailing on the market for activities of that kind.