C-244/94
ECLI:EU:C:1995:254
- Súd
- Súdny dvor Európskej únie
- IČS
- 61994CC0244
- Zdroj
- eur-lex.europa.eu ↗
FÉDÉRATION FRANÇAISE DES SOCIÉTÉS D'ASSURANCE
OPINION OF ADVOCATE GENERAL TESAURO delivered on 13 July 1995 *
1. In this reference for a preliminary ruling, supplementary and optional old-age insur- the French Conseil d'Etat asks the Court to ance scheme for farmers, their spouses and ascertain whether a public body entrusted families ('the scheme'). According to that with the management of an optional supple- provision, the organization and operation of mentary old-age insurance scheme is subject the scheme are to be determined by decree. to the competition provisions of the Treaty.
Under Article 42 (III) of the Law, the contri- The facts of the case and their legislative butions paid under the scheme are deductible context are straightforward and may be sum- from taxable earned income. marized as follows.
Decree No 90-1051 of 26 November 2. Until 1988 there existed in France a com- 1990 ('the decree') 2laid down the detailed pulsory basic system of old-age insurance for rules for the operation of the scheme, farmers, managed by the Caisse nationale entrusting its management to the CNAVMA d'assurance vieillesse mutuelle agricole ('the in conjunction with the agricultural social CNAVMA'). In addition to that basic sys- insurance funds (Caisses de Mutualité Sociale tem, a number of private companies offered Agricole) for individual departments or for supplementary insurance services, which areas covering more than one department. were of course optional.
4. A number of commercial insurance com- panies ('the applicants') 3have challenged the 3. Article 42 (II) of Law No 88-1202 of 30 December 1988, 1 which inserted Article 1122-7 into the Code Rural, established a 2 — Décret relatif au régime complémentaire facultatif d'assurance vieillesse des personnes non salariées des profes- sions agricoles (JORF, p. 14581). 3 — Namely the Fédération Française des Sociétés d'Assurance, * Original language: Italian. lhe Société Patemelle-Vie, the Union des Assurances de Pans- 1 — Loi relative à l'adaptation de l'exploitation agricole à son Vie and the Caisse d'Assurance et de Prévoyance Mutuelle environnement économique et social (JORF p. 16745). des Agriculteurs.
I-4015
OPINION OF MR TESAURO — CASE C-244/94
decree before the Conseil d'Etat on the The French court asks in particular whether ground of abuse of powers, alleging, inter a non-profit-making organization which alia, infringement of the Treaty provisions manages an optional old-age insurance on competition. scheme, established by law to supplement a basic compulsory scheme, and operating according to the principle of capitalization in keeping with the rules laid down by the authorities in particular with regard to con- ditions for membership, contributions and benefits, is to be regarded as an undertaking for the purposes of Article 85 et seq. of the Treaty.
In particular, the applicants argue that the decree confers an effective monopoly upon the CNAVMA, contrary to Articles 86, 90 and 92 of the Treaty, capable of altering the 6. Before dealing with the substance of the structure of the existing market and causing matter, it will be useful to illustrate briefly the progressive elimination of all competing the essential characteristics of the scheme in undertakings in the sector. The determining question, in the light of the provisions of the factors are the tax deductibility of contribu- decree. 4 tions which the CNAVMA can offer and the advantages it enjoys in its capacity as the body entrusted with the management, as a monopoly, of the compulsory basic insur- ance scheme for the same clientele.
The new scheme is for farmers aged under 65 who contribute, on a compulsory or a voluntary basis, to the basic old-age insur- ance scheme, and for their spouses and fam- ilies.
5. The Conseil d'Etat considered that, 7. Contributions are calculated on the basis before declaring the decree incompatible of earned income, at the rate of either 4.5% with those Treaty provisions, it first needed or 7.0%, selected by the insured. to ascertain whether the CNAVMA consti- tuted an undertaking for the purposes of Community law. It therefore suspended the proceedings and made this reference for a 4 — The decree was supplemented by the Regulation of the Council of Administration of the CNAVMA, adopted on preliminary ruling. 28 December 1990 (JORF, p. 1572).
I - 4016
FÉDÉRATION FRANÇAISE DES SOCIÉTÉS D'ASSURANCE
An exemption from, or reduction in, contri- market are laid down by ministerial butions may be granted by a special commit- decision 6 and are subject to the supervision tee at the request of the person concerned in of the Cour des Comptes (Audit Court). The the event of illness of more than six months' French Government maintains that machin- duration. A 'social action fund', financed by ery has also been established to ensure that a levy on contributions, 5then compensates the insured receives benefits at least equiva- for the missing revenue. lent to the value of the contributions paid. It is not, however, apparent from the docu- ments in this case what that machinery and its characteristics are. Instead, the agent for the French Government expressly admitted at the hearing that the insured bears the Again at the request of the person con- investment risk in any event. cerned, the same committee may grant tem- porary suspension of the payment of contri- butions for reasons connected with the economic situation of the agricultural hold- ing, in which case the insured is obliged to make good the arrears up to the maximum level within two years following the end of the period of suspension. The benefits may be calculated and paid out only if, at the same time or previously, the insured also requested the calculation of the pension to which he was entitled under the basic scheme.
8. In keeping with the optional status of the scheme, its operation has been structured, as has already been mentioned, in accordance with the principle of capitalization. In other words, the contributions paid by the persons insured are capitalized and invested by the CNAVMA in various financial products, so 9. The activities of the CNAVMA and of the that the amount of the benefits finally other funds which contribute to the manage- enjoyed by each insured will depend on the ment of the scheme are subject to State con- results of the financial operations and the trol through the Ministry of Agriculture and success of the investments. the head of the regional inspectorate of labour, employment and social policy. 7In particular, the rules, balance sheets, accounts, board decisions and the employment and remuneration of staff by the various funds are subject to administrative approval. The types of operation which the CNAVMA is authorized to undertake in the financial 6 — Atrêté dn 27 février 19S7 modifiant l'arrêté du 13 mars 1973 relatif aux placements, prêts et emprunts des caisses de mutualité sociale agricole (JORF, p. 4332). 7 — Chef du service régional de l'inspection du travail, de 5 — At a maximum of 0.5% of total gross contributions. l'emploi et de la politique sonale.
I-4017
O P I N I O N O F MR TESAURO — CASE C-244/94
Essentially, therefore, the scheme at issue way in which it is financed. In that case, it here is supplementary and optional, estab- accordingly held that a non-profit-making lished and regulated by statute, and managed public employment agency was an undertak- by non-profit-making bodies which operate ing since, in principle at least, that activity in accordance with the principles of capitali- could be carried on by a private undertaking zation and financial investment. with a view to gain.
12. Ruling more recently on a situation sim- 10. As we know, the Treaty does not contain ilar to that now in issue, the Court con- any definition of an undertaking for the pur- cluded that two French organizations, one of pose of applying the competition rules. The which was entrusted with the management scope of Article 85 et seq. of the Treaty must of a compulsory old-age insurance scheme therefore be determined by reference to the for artisans and the other with the manage- case-law of the Court. ment of a compulsory sickness and mater- nity insurance scheme for self-employed per- sons in non-agricultural occupations, fell outside the scope of the Community compe- tition rules. 10
Since its first rulings on the issue, the Court has emphasized that the defining criterion of an undertaking for the purposes of the Treaty is the pursuit of an economic activi- The Court based that conclusion on the ty. 8 finding that the schemes in question pursued a social purpose, were based on the principle of solidarity and were subject to the control of the public authorities, which were respon- sible, inter alia, for setting the amount of contributions and benefits.
11. In its judgment in Case C-41/90 Höfner and Elser, 9 the Court elaborated further by stating that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the 13. The question submitted by the French Conseil d'Etat must therefore be determined in the light of the criteria that can be elicited 8 — See in particular the judgments in Joined Cases 17 and 20/61 Klöckner ν High Authority [1962] ECR 325 and in Case 19/61 Mannesmann AG ν High Authority [1962] ECR 357, delivered in the context of the ECSC Treaty. See also the judgment in Case 155/73 Sacchi [1974] ECR 409. 10 — Judgment in Joined Cases C-159/91 and C-160/91 Poucet 9 — [1991] ECR I-1979. and Pistre [1993] ECR I-637.
I-4018
FÉDÉRATION FRANÇAISE DES SOCIÉTÉS D'ASSURANCE
from the case-law as briefly summarized 15. In that regard, I should say at once that, above. whilst it is undeniable and undisputed that the scheme pursues a social purpose and is subject to the control of the public authori- ties, it seems to me that it is not, save to a minimal extent, based on the principle of sol- idarity.
To begin with, it is undisputed that the non- profit-malting status of the CNAVMA and the other agricultural social insurance funds is irrelevant, since the activity with which they are entrusted is undeniably capable of being carried on by a private undertaking with a view to gain within the meaning of In Poucet and Pistre, the Court found a the Höfner and Elser judgment, cited strong element of solidarity in the operation above. 11 of the French old-age insurance scheme for artisans and the sickness and maternity scheme for self-employed persons in non- agricultural occupations, by reason of their compulsory nature and of the mechanism for allocating burdens.
14. It therefore has to be determined whether or not, irrespective of their legal sta- tus, the agricultural social insurance funds pursue an activity that may be defined as economic in nature for the purposes of the case-law of the Court. 16. Solidarity was apparent in several respects: first, solidarity in time (a feature of all schemes based on allocation, in which there is no direct link between contributions and benefits), in that the contributions paid by active workers are directly used to More particularly, it must first be determined finance benefits paid to pensioners; secondly, whether the scheme in question has charac- financial solidarity between the various com- teristics in common with those identified by pulsory schemes, based on balancing the Court in relation to the schemes at issue between schemes in surplus and those in def- in the Poucet and Pistre case, in order to icit; and finally solidarity in relation to the ascertain whether the same reasons for least well-off, who are entitled to certain excluding those schemes from the scope of minimum benefits even in the absence of the competition rules exist in this case. contributions paid by them, or at any rate without reference to their amount. 12
11 — On the same point, sec, more recently, the judgment in Case C-364/92 SAT Fluggesellschaft ν Eurocontrol [1994] ECR I-43. 12 — See paragraphs 9 to 13.
I-4019
OPINION OF MR TESAURO — CASE C-244/94
17. The situation in the present case would 19. Finally, it is also hard, in my view, to appear to be quite different. perceive any real solidarity in relation to the least well-off. Although, as already men- tioned, the decree provides for a few cases of exemption from or reduction of contribu- tions, they are linked to the state of health of the person concerned rather than to his economic situation. Moreover, although the missing revenue is compensated for by the First of all, there does not appear to be any 'social action fund', which is financed by lev- solidarity in time as defined by the Court. ies on contributions, this is done only within Since the scheme in question is based on the the limit (laid down by legislation) of 0.5% principle of capitalization, there is on the one of total gross contributions. hand a direct link between the amount of contributions and the amount of benefits, whilst, on the other hand, the contributions and benefits may cease to be proportionate to each other by reason of the risk inherent in the investment policy of the managing organization. As for the suspension of payment of contri- butions which may be granted to insured persons for reasons connected with the econ- omic situation of the agricultural holding, this is, as has already been mentioned, only temporary and the arrears must in any event be reimbursed within the periods set. In other words, the insured pays contribu- tions to the institution, from which he later receives benefits which are related in any event to the financial results of the invest- ments and are proportionate to the contribu- tions paid, but he may also receive benefits that are proportionately lower, if the finan- 20. Therefore, contrary to the normal situa- cial results are negative. The rationale under- tion with regard to compulsory insurance lying the system is therefore quite different schemes, this scheme follows the principle of from that underlying a system in which the solidarity to only a minimal extent, namely intention is that the inactive population in so far as it provides for a limited balancing should be financed by the active population. mechanism between persons insured under the same scheme, operating by means of the 'social action fund'.
18. Secondly, there is no 'horizontal' solidar- ity, as there is no machinery for the recipro- cal balancing of surpluses and losses between Moreover, it seems obvious to me that the various optional insurance schemes. whilst, as the Court rightly pointed out in
I - 4020
FÉDÉRATION FRANCAISE DES SOCIÉTÉS D'ASSURANCE
the Poucet and Pistre judgment, solidarity is 22. The criteria relied upon by the Court in an inherent feature of compulsory schemes, holding that the organizations at issue in an optional scheme may well be structured Poncet and Pistre do not fall within the in such a way as to leave the requirements of scope of the competition rules therefore sug- solidarity out of account altogether or to sat- gest that the opposite solution should be isfy them only to a minimal extent. adopted in this case.
21. But there is more to it than that. Even if, as already mentioned, the operation of the system is subject to the control of the public I therefore consider that the CNAVMA (and authorities, such control is not absolute, at the other social insurance funds) must, at least as regards the method of calculating least in so far as their management of this contributions. The amount of the contribu- scheme is concerned, be classified as an tions, and thus of the benefits, also depends undertalung within the meaning of Article on the choice (albeit limited to two options) 85 et seq. of the Treaty. There is no reason of the insured. That possibility does not why that undertaking should enjoy treat- seem to me to correspond exactly to the ment any different from that reserved for rigid legislative framework which the Court competing undertakings which are in a pos- had identified in the insurance schemes at ition to provide the same service on similar issue in Poucet and Pistre. conditions.
23. I propose in the light of the foregoing considerations that the C o u r t give the following answer to the question submitted by the French Conseil d'Etat:
' A non-profit-making organization entrusted with the management of a supple- mentary and optional old-age insurance scheme, established b y law and operating according to the principle of capitalization u n d e r the control of the public author- ities, is an undertaking within the meaning of Article 85 et seq. of the E C Treaty.'
I - 4021