C-238/94
ECLI:EU:C:1996:73
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GARCIA AND OTHERS ν MUTUELLE DE PRÉVOYANCE SOCIALE D'AQUITAINE AND OTHERS
OPINION OF ADVOCATE GENERAL TESAURO delivered on 29 February 1996 *
1. The question with which these proceed- In defining its own scope, the Third Direc- ings are concerned, submitted by the Tribu- tive refers to the general provisions of Coun- nal des Affaires de Sécurité Sociale for Tarn- cil Directive 73/239/EEC of 24 July 1973 2 et-Garonne, relates to the interpretation of ('the First Directive'), which regulates the certain provisions of Council Directive field in question. Under Article 2, the Third 92/49/EEC of 18 June 1992 on the coordina- Directive is to apply to the types of insur- tion of laws, regulations and administrative ance and undertakings referred to in Article provisions relating to direct insurance other 1 of the First Directive, but not to the types than life assurance and amending Directives of insurance, operations, undertakings or 73/239/EEC and 88/357/EEC (third non-life institutions which fall outwith the scope of insurance Directive) ' ('the Third Directive'). that directive.
In particular, the national tribunal seeks a 3. Article 1 of the First Directive provides ruling from the Court on the scope of the that it concerns the taking-up and pursuit of Third Directive, in order to determine the self-employed activity of direct insurance whether certain welfare schemes forming carried on by insurance undertakings which part of the French statutory social security are established in a Member State or which system fall within it. wish to become established there.
2. The Third Directive, adopted on the basis Article 2 goes on to specify the types of of Articles 57(2) and 66 of the Treaty, sets as insurance and operations excluded from the its main objective the completion of the scope of the First Directive. Under Article internal market in direct insurance other 2(1 )(d), 'insurance forming part of a statu- than life assurance from the point of view tory system of social security' is explicitly both of the right of establishment and of the excluded. freedom to provide services.
2 — First Council Directive on the coordination of laws, regula- tions and administrative provisions relating to the taking-up * Original language: Italian. and pursuit of the business of direct insurance other than life 1 — OJ 1992 L 228, p. 1. assurance (OJ 1973 L 228, p. 3).
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4. The problem to be considered here has Ascribing significant importance to the pre- arisen in the context of proceedings between amble to that directive, in particular the aims a number of self-employed persons, mainly expressed therein of liberalizing the market in skilled manual or commercial trades ('the in the sector concerned, the national tribunal plaintiffs'), and various social security orga- decided to join the cases pending before it, nizations responsible for administering the stay the proceedings in those cases, and sub- compulsory insurance schemes covering old mit the following question to the Court of age, health, maternity, invalidity and death Justice: 'Does Article 2(2) of Council Direc- for persons pursuing those occupations ('the tive 92/49/EEC concern at all, in whole or in defendant organizations'). 3 part, the actual subject-matter of the existing statutory social security system applied in France?'
In order to obtain settlement of the compul- sory contributions relating to certain insur- ance periods, which the plaintiffs had refused to pay, the defendant organizations issued 6. In other words, the national tribunal is enforceable demands against them. The asking the Court to determine whether the plaintiffs have challenged those measures Third Directive, notwithstanding the explicit before the national court, arguing, inter alia, exclusion of organizations such as the defen- that the insurance schemes in question were dants from its scope, cannot still be deemed incompatible either with the Third Directive to be applicable by virtue of the principles or, more specifically, with the principles of set out in its preamble, at least as regards the freedom on which that directive is based. activities entrusted to such organizations.
5. The national tribunal, explicitly acknowl- edging in its order for reference that the It is quite clear that the answer to that ques- defendant organizations administer schemes tion can only be in the negative. forming part of the national statutory system of social security within the meaning of the First and Third Directives and that those directives 'unquestionably' exclude such sys- tems from their scope, states that it has doubts as to 'the scope of that exclusion in the light of the provisions of [the Third] Directive itself'. 7. The very wording of Article 2(1)(d) of the First Directive, to which Article 2(2) of the Third Directive explicitly refers ('This Direc- 3 — In particular, the Caisse de Maladie Régionale des Profes- tive does not apply to insurance forming part sions Indépendantes Midi-Pyrénées, the CANCAVA and the Caisse ORGANIC Midi-Pyrénées. of a statutory system of social security'), is
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so absolute as to leave no scope at all for any case-law of the Court in the field, it does not other interpretation. seem to me possible for other elements of the Third Directive to suggest that its scope should be extended to include social security matters. Furthermore, an analysis of the It is, moreover, obvious that the exclusion of objectives of that directive in relation to the the defendant organizations from the scope provisions which form its legal basis, far of the Third Directive must relate also, and from supporting a different conclusion, con- even predominantly, to their activities in the firms that it does not concern schemes form- administration of the national social security ing part of a national social security system. system.
8. Furthermore, the Court itself has in its case-law unhesitatingly confirmed on a num- ber of occasions that, as it now stands, First of all, it should be noted that, consis- 'Community law does not detract from the tently with the objectives which it pursues, powers of Member States to organize their the Third Directive was adopted on the basis social security systems'. 4 of Treaty provisions pursuing freedom of establishment and freedom to provide ser- vices (namely, Articles 57(2) and 66); social security matters, however, are governed by different, specific provisions. 6 In other words, when, as in the present case, it is undisputed that the bodies in question are operating within the context of a national social security system which pursues a social objective and is based on the principle of sol- idarity, their activities cannot be regarded as being economic and thus that of an under- taking within the meaning of the Treaty. 5 10. More particularly, the view put forward by the plaintiffs (and apparently shared by the national tribunal) to the effect that the broad scope of the preamble to the Third Directive, setting out the opening up of the 9. Faced with a clear and explicit exclusion, insurance market to competition as the prin- therefore, together with the equally clear cipal objective of the rules laid down, makes it possible to interpret the directive itself as
4 — Case 238/82 Duphar ν Netherlands [1984] ECR 523, para graph 16. and Joined Cases C-159/91 and C-160/91 Poucet ana Ptstre ν Assurances Générales de France and Others 6 — None of these, moreover (Articles 51 and 117 et seq. of the [1993] ECR I-637, paragraph 6. Treaty), can constitute a proper legal basis for the adoption 5 — Poucet and Ptstre, paragraphs 18 and 19. Such a conclusion is of measures aimed at dismantling national social security not contradicted, but rather confirmed, by the recent judg- systems. It is only since the entry into force of the Maas- ment in Case C-244/94 FFSA and Others ν Ministère de tricht Treaty, and thus of the Protocol on Social Policy l'Agriculture [1995] ECR I-4013. in which the Court held appended thereto, that the Community (with the exception that bodies such as (or similar to) those in question here, but of the United Kingdom) has had a specific legal basis (which which administer an optional, supplementary insurance has in fact never yet been used) to adopt wider-ranging mea- scheme based on capitalization, arc to be regarded as under- sures in the field of social security (first indent of Article 2(3) takings for the purposes of the Treaty provisions on compe- of the Agreement on Social Policy appended to the Proto- tition. col).
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referring also to insurance schemes such as zation and regulation of the compulsory those in issue, is undoubtedly not merely social security schemes established under the unfounded but also irrelevant in the present legislation in force in the various Member context. States. 7
It is unfounded inasmuch as there is no trace It is irrelevant, moreover, because there is no in the preamble of any reference to social need in the present case to have recourse to security matters, from which it could be the preamble in order to define the purpose inferred or assumed that the real intention of or scope of a provision whose clarity, as we the legislature was to interfere in the organi- have seen, is incontrovertible.
11. I n the light of the foregoing I p r o p o s e that the C o u r t should give the following answer to the question raised b y the Tribunal des Affaires de Sécurité Sociale for Tarn-et-Garonne:
Article 2(2) of Council Directive 9 2 / 4 9 / E E C of 18 J u n e 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 7 3 / 2 3 9 / E E C and 8 8 / 3 5 7 / E E C (third non-life insurance Directive) m u s t be interpreted as meaning that the directive does n o t apply t o insurance forming p a r t of a statutory system of social security.
7 — Recital 22, for example, does no more than note that in some Member States, under and in accordance with the national legislation in force, private or voluntary health insurance may serve as a partial or complete alternative to health cover provided for by the social security systems, which justifies the right of the national authorities to require insurance undertakings to provide all the information necessary to ver- ify that the alternative is an effective one (Article 54(1)). It is obvious, on the other hand, that the need to abolish the monopoly enjoyed by certain bodies in certain Member States, expressed in recital 10, refers exclusively, as specified in Article 3, to the bodies explicitly referred to in Article 4 of the First Directive.
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