C-411/98

OPINION OF MR COSMAS — CASE C-411/98

OPINION OF ADVOCATE GENERAL COSMAS delivered on 21 September 1999 *

Table of contents

I — Introduction I-8085 II — Legal Background I-8086 A — Community Legal Framework I-8086 (a) Provisions of the Treaty and of the relevant regulations I-8086 (b) Provisions of the Staff Regulations of Officials of the European Commu- nities (hereinafter 'the Staff Regulations') and the Joint Rules on sickness and insurance for officials of the European Communities I-8087 B — National legal framework I - 8088 (a) Insurance for illness and maternity for persons affiliated to the national scheme I-8088 (b) Insurance for illness and maternity for persons not affiliated to the national scheme I-8090 III — Facts I-8091 IV — The question referred for a preliminary ruling I - 8092 V — Answer to the question referred for a preliminary ruling I - 8094 A — Formulation of the question referred for a preliminary ruling I - 8094 B — Prohibition of discrimination on the ground of nationality I - 8095 (a) Legal basis of the prohibition on discrimination on the ground of nationality I - 8096 (aa) Application of Regulation No 1408/71 I - 8096 (ab) Application of Article 48 of the EEC Treaty and Regulation No 1612/68 I-8098 (ac) Application of Article 7 of the EEC Treaty I-8102 (ad) Conclusion concerning the choice of legal basis I-8108 (b) Different treatment of similar cases I - 8108 (ba) Scope of the different treatment I - 8109 (bb) Similarity of cases treated differently I-8110 (c) Objective justification for different treatment I-8113 (d) Conclusion on the prohibition of discrimination on the ground of nationality I-8114

I — Introduction Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified and updated by Council Regulation No 2001/83 of 2 June 1983, 4and, secondly, of Article 85(1) of the EEC Treaty. In particular, the Court of Justice is asked to rule on the compatibility with the prohibition of discrimination between nationals of Member States of the Community and protection of competi­ tion of first a national regulatory system 1. In this reference for a preliminary ruling, and, secondly, a circular of the Union des under Article 177 of the EC Treaty (now Caisses de Maladie (hereinafter 'the UCM') Article 234 EC), the Tribunal d'arrondisse­ and a decision of the Entente des Hôpitaux ment (District Court), Luxembourg (8th Luxembourgeois (Luxembourg Hospitals Chamber), referred to the Court of Justice a Group, hereinafter 'the EHĽ), which result preliminary question on the interpretation, in the application of different fees for first, of Articles 7 and 48 of the EEC medical and hospital care depending on Treaty, 1 Regulation No 1612/68 of the whether the persons concerned are affili­ Council of 15 October 1968 on freedom ated to the Luxembourg national social of movement for workers within the Com­ security scheme or not, as is the case with munity, 2as amended by Council Regula­ Community officials who are affiliated to tion (EEC) N o 312/76 of 9 February the Joint Sickness Insurance Scheme com­ 1976, 3and Regulation No 1408/71 of the mon to the Institutions of the European C o m m u n i t i e s (hereinafter ' t h e J o i n t Scheme'). 1 — The national court refers to the corresponding articles of the EC Treaty. However, in light of the material time of the facts of the case in the main proceedings, the answer to the request for a preliminary ruling ought to refer to the interpretation of the articles of the EEC Treaty. 2 — OJ, English Special Edition 1968 (II), p. 475. 3 — OJ 1976 L 39, p. 2. 4 — OJ 1983 L 230, p. 6.

3. Article 48(2) of the EEC Treaty (subse- 2. He shall enjoy the same social and tax quently Article 48(2) of the EC Treaty and advantages as national workers. now, after amendment, Article 39(2) EC) provides:

'Such freedom of movement shall entail the ...' abolition of any discrimination based on

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5. Article 2 of Regulation No 1408/71, as Treaty and now Article 81(1) EC) pro- codified and updated by Regulation vides: No 2001/83, provides:

'The following shall be prohibited as '1. This Regulation shall apply to workers incompatible with the common market: who are or have been subject to the all agreements between undertakings, deci- legislation of one or more Member States sions by associations of undertakings and and who are nationals of one of the concerted practices which may affect trade Member States or who are stateless persons between Member States and which have as or refugees residing within the territory of their object or effect the prevention, restric- one of the Member States, as also to the tion or distortion of competition within the members of their families and their survi- common market, and in particular those vors. which:

spouse of an official is insured against 11. Article 9(2) of the Joint Scheme pro- sickness as laid down in that article. vides that 'the institutions shall, wherever possible, take steps to negotiate with the representatives of the medical profession and/or the competent authorities, associa- tions and establishments agreements speci- fying the rates for both medical treatment and hospitalisation applicable to persons covered by this Scheme, account being taken of local conditions and, where appro- priate, the scales already in force'.

9. The Rules on Sickness Insurance for Officials of the European Communities were adopted having regard, inter alia, to the implementation of the above provi- 12. From the information in the case-file it sions. Under Article 2 of those rules, offi- appears that, at the material time of the cials are affiliated to the Joint Scheme. facts of the case in the main proceedings, Furthermore, Article 3 thereof provides no agreement had been concluded between that spouses of officials are also affiliated the Joint Scheme and the EHL, notwith- subject to certain conditions which, in the standing initiatives by the Communities to material case, Mr Ferlini's wife undoubt- that end. 5 edly appears to fulfil.

B •— National legal framework

15. As regards insurance for illness and maternity, the persons covered are compul- sorily insured by sickness funds, which are 14. In view of the nature of the social autonomous public entities with legal per- security system sought to be established by sonality, subject to Government supervi- the Luxembourg legislature, fees for med- sion. The sickness funds are financed ical treatment are entirely uniform. They mainly by contributions, either direct or indirect.

fixed the maximum contributions which could be called for by funds from their members, who were thenceforth entitled freely to choose their doctor, agreements were necessary, 16. As both Mr Ferlini and the Commis- even though they were still not compulsory. Moreover, the very nature of social insurance required uniform scales for sion state, the system applicable to mater- all members in the same professional category. nity services differed from that applied in The Law of 6 September 1933 introduced an Article 308 bis in the Code des Assurances Sociales under which, m the the case of illness. At the material time of

These agreements medical treatment, regardless of the income of the insured and the level of qualification of the provider. were made binding erga omnes by minis- Since the passing of that Law, there are four types of rules: collective agreements made binding by ministerial orders, terial order, even on providers of services decisions of the Conciliation and Arbitration Committee in the absence of collective agreements, also made binding by who were not members of the association ministerial orders, rules agreed on an entirely voluntary basis, and, finally, rules established by regulations or laws. which had negotiated the agreement. 7 By The medical services which may be the subject of scale fees contrast, the system applicable to maternity negotiated collectively or settled by an award of the Joint Committee are in principle only those contained in a insurance was based on a lump-sum pay- nomenclature determined by ministerial order, forming part of the regulations of the Luxembourg sickness funds. Since the adoption of the budgetary Law of 20 December 1982, the legislature has intervened directly to fix the scale of fees for c e r t a i nservices. The same practice has been 7 — The Commission points out that to date the system has not followed in every budgetary law since then. changed significantly, save tor the fact that a distinction is made between the hospital and non-hospital sectors.

9 — The text of this circular is annexed to the written observations submitted by Mr Ferlini. 10 — Referring to the UCM circular, Mr Ferlini states that the first of these three components was calculated by agree- ment between the UCM and the Luxembourg Association 19. According to the UCM circular of of Doctors and Dentists (hereinafter 'the AMMD'), the 1 December 1988, mentioned in the order second and third by agreement between the UCM and the EHL. Indeed, Mr Ferlini points out that, at the present time, the new legal system has been adapted in line with this practice whereby reference is made to fees fixed by agreement for 8 — Mémorial A No 95 of 31.12.1974, p. 2398. all components of the lump sum.

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21. On the other hand, the abovemen- Mr Ferlini and his wife are nationals of a tioned regulations and collective agree- Member State of the Community. 11 ments appear not to have applied to persons not affiliated to the national social security scheme and, subject to legal provi- sions or regulations or Luxembourg's inter- national obligations, the providers of ser- vices had complete freedom in determining fees. 24. Given that Mr Ferlini is an official of the European Communities, both he and his wife are affiliated to the Joint Scheme.

22. Thus, in the absence of an agreement between the Joint Scheme and the EHL, the 25. Between 17 and 24 January 1989, the latter unilaterally fixed the fees for hospital appellant's wife stayed at the Centre Hos- care to be applied as from 1 January 1989 pitalier de Luxembourg (hereinafter 'CHL') to persons not affiliated to the national in connection with her confinement. The social security scheme, including Commu- order for reference notes that CHL is a nity officials, who were affiliated to the public establishment. Joint Scheme.

32. In the alternative, the appellant con- siders that the sum claimed is excessive and disproportionate in the light of the services provided. 29. On 5 October 1994, Mr Ferlini appealed against that judgment.

33. The respondent, CHL, contends that the appeal should be rejected and the judgment of the lower court upheld and is seeking legal costs. The CHL contends 30. As indicated in the order for reference, essentially that the situation of Community the appellant maintains that the amount officials is not comparable to that of charged by CHL is calculated, partly, on persons affiliated to the national social the basis of the scale fees fixed by the EHL security scheme. The former do not pay and applicable as from 1 January 1989 to taxes or make contributions to national persons and organisations not affiliated to insurance schemes and have higher incomes the national social security scheme, and of while, at the material time of the facts of the scale fees applicable to persons affili- the case in the main proceedings, the Joint ated to sickness funds as set out in the Scheme had not concluded any agreement UCM circular of 1 December 1988. How- with the EHL. Finally, the CHL maintains ever, those fees exceeded by a considerable that the conditions laid down in Article 85 margin those charged to persons affiliated of the Treaty are not fulfilled in this case. to the national social security scheme and were discriminatory.

IV — The question referred for a preli- minary ruling 31. In support of his appeal, Mr Ferlini contends that the fixing of hospital scale fees by the CHL infringes the principle of equal treatment. The appellant also main- tains that the system of fixing hospital scale 34. According to the national court, Arti- fees to be applied to Community officials, cle 48 of the Treaty and Regulations

Having regard to Article 85(1) of the EEC Treaty which prohibits all agreements between undertakings, decisions by asso- ciations of undertakings and concerted practices which may affect trade between Member States and which have as their 36. Having regard to the above considera- object or effect the prevention, restriction tions, the Tribunal d'arrondissement, Lux- or distortion of competition within the embourg (8th Chamber) decided to refer common market;

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37. By the question submitted for a pre- 39. Accordingly, the question referred by liminary ruling by the Tribunal d'arrondis- the national court must be regarded as sement, Luxembourg (8th Chamber), the raising the issue whether Articles 7 and 48 Court is asked to form a view on the of the EEC Treaty and the provisions of prohibition of discrimination on grounds of Regulations No 1612/68 and No 1408/71 nationality (B) and on the protection of should be interpreted as precluding competition (C) with regard to the fixing in a Member State of medical and hospital 12 — See, for instance, Case 27/74 Demag [1974] ECR 1037, fees for maternity care provided for persons paragraph 8, Case C-204/90 Bachmann [1992] not affiliated to the national social security ECR I-249, paragraph 6, Case 22/80 Boussac [1980] ECR 3427, paragraph 5 and Case C-69/88 Krantz [1990] scheme, including Community officials ECR I-583, paragraph 7.

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national rules and practices of associations existence of distinctions, which may consist of persons providing medical and hospital in the application of different rules to services for maternity care from permitting similar situations or the application of the uniformly higher fees to be charged for same rule to different situations. 13 What is those services to persons and organisations prohibited is in fact arbitrary discrimina- not affiliated to the national social security tion which can be identified by an exam- scheme, including Community officials ination as to its objective justification. 14 affiliated to the Joint Scheme, than those charged to residents affiliated to the national social security scheme.

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based, constitutes a covert application of (a) Legal basis of the prohibition on the criterion of nationality, inasmuch as the discrimination on the ground of nationality majority of persons affiliated to the national scheme, as the Commission points out, are Luxembourg nationals, while the overwhelming majority of those not affili- ated to that scheme, particularly Commu- nity officials, are nationals of other Mem- ber States. 16 (aa) Application of Regulation No 1408/71

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the objectives and substantive scope of the Consequently, there are no grounds for regulation in mind'. 19 In other words, the classifying Mr Ferlini as an employed per- definition of employed person is essentially son within the meaning of Regulation dependent on the context in which that No 1408/71. regulation is applied.

4 7. T h u s , a l t h o u g h R e g u l a t i o n 49. In connection with the impossibility of No 1408/71, which was adopted on the classifying Mr Ferlini as an 'employed basis of Article 51 of the EEC Treaty, is person' within the meaning of Regulation connected with the establishment of free No 1408/71 regard must also be had to the movement for workers, its basic aim is ground of non-application of that regula- nevertheless to coordinate different tion under Article 2(1) thereof, which is national legislation on social benefits in directly relevant to the present case. Under order to ensure that free movement of that provision, Regulation No 1408/71 workers does not result in workers who 'shall apply to workers who are or have exercise this freedom being placed in a less been subject to the legislation of one or favourable position than workers engaged more Member States and who are nationals in activities within a single Member State. of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors'. In the present case, Mr Fer- lini, being an official of the Commission of the European Communities, is affiliated to the Joint Scheme. Consequently, and as would appear to be borne out by the case- file, neither Mr Ferlini nor his spouse are 48. In the present case, as the Commission affiliated to the national social security points out in its observations, the general scheme, as required by Article 2(1) of conditions governing the application of Regulation No 1408/71. Regulation No 1408/71 are not fulfilled because this is not a matter involving the coordination of national social security schemes, but of providing care within a single Member State and applying different fees for those services to a category of persons which essentially includes workers who are nationals of other Member States.

20 — In this respect, it is worth noting that Article 16(3) of Regulation No 1408/71 provides, especially for auxiliary staff in the European Communities, the possibility of choosing between certain national social security schemes. It follows indirectly from the above limitation on the possibility of this choice that the regulation .itself accepts that permanent Community officials are not affiliated to national systems and, consequently, do not fall within its scope. According to the Luxembourg Government, the Joint Scheme, which is based on the rights of Community officials under the Staff Regulations, does not fall within 53. The term 'conditions of work and the scope of application of Regulation No 1408/71 to the extent to which it provides a level of protection at least employment', used in the above provisions, equal to the coordination measures introduced pursuant to appears to include matters directly inherent Article 51 of the EEC Treaty. 21 — See Martinez Sala (cited above, footnote 17), para- in the employment contract, such as remu- graph 31. neration, dismissal, the calculation of 22 — See, for example, Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723 where the Court seniority, reinstatement or re-employment. held that 'a national of a Member State who in another Member State occupies a post governed by a special statute In this respect, it is significant that the under internationallaw, such as for example a post at the Court, in order to decide whether a system European Space Agency, must be regarded as a worker within the meaning of Article 48(1) and (2) of the Treaty, and is therefore entitled, as are the members of his family, to the rights and privileges prescribed in those provisions and in Regulation No 1612/68 of the Council' (para- 23 — As regards the different question of the direct horizontal graph 15). See also Schmid (cited above, footnote 18), effect of Article 48, see below, paragraph 77 of this paragraph 20. Opinion.

54. In the present case, I am of the opinion that the imposition of higher fees for medical and hospital maternity care does not fall within the concept of 'conditions of employment and work'. As the Commis- 56. According to the Commission, in light sion points out, despite the fact that the of the above definition, it is not impossible imposition of those fees may place a burden for a guaranteed level of fees for medical on the net income of persons not affiliated services, which in accordance with the logic to the Luxembourg national social security of the Luxembourg system, corresponds to scheme, since it is likely that they have to the real costs of the services in question, to pay more as their insurance bodies are be regarded as constituting a social advan- unable to cover the totality of the fees tage which should be provided to all charged, those fees are none the less linked workers in Luxembourg. only indirectly and hypothetically to 'con- ditions of employment and work' and, in particular, to the remuneration of those workers. The contrary position would, in effect, lead to the simplistic view that any method of setting fees for products and services which entails extra expenditure, as in the case of expenditure for medical and 57. According to Mr Ferlini, the lump-sum hospital maternity care, must be regarded payment for childbirth made by the Lux- as having an effect on workers' contrac- tually or legally fixed remuneration. 25 —See, for instance, Cases 65/81 Reina [1982] ECR 33, paragraph 12, 249/83 Hoeckx [1985] ECR 973, para- graph 20, 157/84 Frascogna [1985] ECR 1739, para- graph 30, and Schmid (cited ahove, footnote 18), 24 —See Case C-315/94 De Vos [1996] ECR I-1417, para- paragraph 18 and Meints (cited above, footnote 14), graph 18. paragraph 39.

59. However, I consider that the disputed determination of fees for medical and hospital maternity care can be regarded as falling within the scope ratione materiae of the principle of equal treatment enshrined in Article 7 of Regulation No 1612/68, without its being necessary to seek a service or advantage of positive content. It is sufficient to reason a majori ad minus. If 58. Both the Commission, which refers to a equal treatment is held to apply in respect right to reasonable fees corresponding to real costs, and Mr Ferlini, who refers to the lump-sum payment for childbirth, attempt 27 — Thus, for instance, Case 15/69 Ugliola [1969] ECR 363 to give positive content to the right to equal concerning protection from the unfavourable conse- treatment in respect of the fees for the quences arising out of absence through obligations for military service, Case 44/72 Marsman [1972] ECR 1243 services concerned so that the definition of concerning protection measures against dismissal, Case 152/73 Sotgiu [1974] ECR 153 concerning 'the separation this right as an 'social advantage' is con- allowance' made to workers separated from their home, sistent with the Court's case-law which has Case 32/75 Cristini [1975] ECR 1085 concerning fares reduction cards issued by a national railway authority, defined as 'social advantages' services prin- Case 237/83 Prodest [1984] ECR 3153 concerning the right to retain affiliation to the general social security scheme of the Member State where the undertaking is established and Case 137/84 Mutsch [1985] ECR 2681 concerning the possibility for a worker to use his mother 26 — See Case C-111/91 Commission v Luxembourg [1993] tongue in court proceedings in the Member State where he ECR I-817. is resident.

61. However, in the present case, it is not easy to contend that, other than establish- ing indirect discrimination on the ground of nationality, the application in a Member State of maternity care fees higher than those applied to persons affiliated to that Member State's social security scheme 60. If it is accepted that the material facts would generally prevent or deter a national of the case in the main proceedings fall of another Member State from working, within the scope of Article 7(2) of Regula- especially as a Community official, in the tion No 1612/68, a final question should first Member State. I reach this conclusion be raised. According to the Court's recent taking into account the exceptional, rea- case-law, if national legislation falling sonably foreseeable and limited nature of within the scope of Article 48 of the Treaty maternity care expenses and having regard and Article 7(2) of Regulation No 1612/68 to the fact that insurance cover against prevents or deters nationals of a Member maternity expenses is widely available in State from leaving their country with a the various Member States in which the view to exercising their right to freedom of Joint Scheme is available. On the other movement, it is regarded as contravening hand, if in a Member State, such as, in the Article 48 of the Treaty without its being present case, Luxembourg, the scale of fees necessary to examine whether there is a were shown to be generally discriminating case of indirect discrimination on grounds in like manner in the case of all — or a of nationality. 28On the basis of this ruling, significant number of — medical and hos- pital services, it could indeed be argued that

65. At this juncture, it should be stressed that the Court appears to accept a substan- 63. Inasmuch as the principle of non-dis- tively broad interpretation of this condi- crimination on the ground of nationality is tion, recognising that the Treaty's scope specifically referred to in Article 48 of the encompasses situations which, while not Treaty, it must therefore be accepted that, linked directly to the fundamental freedoms in the present case, there is no ground for laid down by Community law, have an applying Article 7 of the Treaty unless indirect effect on the exercise of those Article 48 and Regulation No 1612/68 are freedoms. 31 In other words, the definition not applicable. On the basis of the above of the Treaty's scope, within the meaning of analyses, the question of the application of Article 7, is a dynamic process allowing a range of matters not alien to Community law or which are governed, albeit in part, 30 — See, for instance, Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 13 and Case C-18/93 Cor- sica Ferries [1994] ECR 1-1783, paragraph 19. As regards the so-called subsidiary character of Article 6 of the EC 31 — See, for instance, Data Delecta and Forsberg (cited above, Treaty (now Article 12 EC), see also the conclusions of footnote 30), at paragraphs 14 and 15, concerning Advocate General La Pergola (paragraph 10 et seq.) in national legal provisions that fall within the scope of the Case C-43/95 Data Delecta and Forsberg [1996] Treaty's application on account of their effect, albeit ECR I-4661. indirect, on intra-Community trade in goods and services.

67. In that judgment, which preceded Ech- ternach and Moritz (footnote 22) and Schmid (footnote 18), the Court decided 66. With particular regard to Community to base its judgment on Article 7 of the officials, in the Forcheri judgment which, EEC Treaty, tacitly considering that a like the present case, concerned the posi- Community official and national of a tion of a European Community official's Member State of the Community is not a wife, 33 the Court accepted at the outset worker within the meaning of Article 48 of that 'the legal position of officials of the the Treaty and Regulation No 1612/68, but Community in the Member State in which accepting that he cannot be refused the they are employed comes within the scope rights recognised by those Community of the Treaty on a dual basis by reason of rules. Thus, the question arose as to the their post with the Community and because determination of those persons who, with- they must enjoy all the benefits flowing out being workers within the above mean- from Community law for the nationals of ing, might come within the scope of the Member States in relation to freedom of Treaty. The Court resolved that question by movement, freedom of establishment and relying on application of the criterion that social security'. 34 Likewise, in the same the person concerned had to be the judgment, the Court, in examining the 'national of another Member State lawfully more specific question of whether the established in the first Member State'. payment by a Community official's wife Indeed, while it appears from the grounds who is not a national of the Member State of the judgment that Mr Forcheri's wife in which she is established with her hus- derived her right to equal treatment as the band of an enrolment fee falls within the spouse of a Community official, which scope of the Treaty and is consistent with guaranteed her lawful establishment in the Community law, the Court held that 'if a Member State concerned, the operative Member State organises educational part of the Court's judgment seems to refer courses relating in particular to vocational generally to the condition of lawful estab- training, to require of a national of another lishment, irrespective of the special case of Member State lawfully established in the spouses of Community officials. This has first Member State an enrolment fee which led commentators of the judgment to speak of the new perspective opened up for Community law by the Court; in other 32 — On the subject of vocational training, see, for instance, words, once a Community national, even if Case 293/83 Gravur [1985] ECR 593 and Case 24/86 Blmzot [1988] ECR 379. 33 — There was no doubt that that Mr Forcheri's wife was an Italian national. 34 — Case 152/82 [1983] ECR 2323, paragraph 9. 35 — Paragraph 18.

68. On this point, it should be noted that this perspective, which was opened up in 1983 in the Court's case-law, has been reaffirmed in Article 8 (now, after amend- ment, Article 17 EC) and Article 8a (now, after amendment, Article 17 EC) of the EC Treaty. 37 As the Court has recently held, 'Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope ratione materiae of the Treaty. It follows 69. Applying this case-law to the present that a citizen of the European Union, such case, it must be accepted that, in so far as as the appellant in the main proceedings, Mr Ferlini's wife was a national of a who is lawfully resident in the territory of Member State of the Community — a fact the host Member State, can rely on Arti- which it is for the national court to cle 6 of the Treaty in all situations which verify — and lawfully established in Lux- embourg as the wife of a Community official who worked there, she should not 36 — See Starkle, G., 'Extension du principe de non-discrimina- be discriminated against on the ground of tion en droit communautaire au ressortissent d'un État membre licitement installé dans un autre Etat membre' nationality, which is prohibited by Article 7 [observations on the Forcheri judgment, cited above], of the Treaty in all cases falling within its Cahiers de droit européen, 1984, p. 672 et seq. Also, according to Advocate General Darmon, in the Forcheri scope. It is clear that the scale fees for judgment, 'the Court apparently recognises the right of all Community nationals, regardless of whether or not they medical and hospital care relate to services are employed by a Community institution, to enjoy "all the which, as the Commission points out in its benefits flowing from Community law", in particular in relation to freedom of movement for workers' (see observations, indubitably were and remain conclusions of Echternach and Moritz cited above, foot- note 22), paragraph 24. within the scope of the Treaty, 39 without 37 — Article 8 provides that: its being necessary to establish a link with '1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed 38 — See Martínez Sala, cited above, footnote 17, para- thereby'. graphs 62 and 63. Moreover, pursuant to Article 8a(1), 'Every citizen of the 39 — On the subject of medical services, the Commission refers Union shall have the right to move and reside freely within to Joined Cases 286/82 and 26/83 Luisi and Carbone the territory of the Member States, subject to the [1984] ECR 377 where it was held that 'tourists, persons limitations and conditions laid down in this Treaty and receiving medical treatment... are to be regarded as by the measures adopted to give it effect'. recipients of services' (paragraph 16).

71. The final, but no less important, ques- tion to be examined in the context of the interpretation of Article 7 of the EEC Treaty is the possibility of that article being 73. That answer can be based on the fact applied not only in the case of discrimina- that action of legal persons governed by tion arising from the action of the Com- munity institutions or Member States, but also in the case of discrimination arising in 41 — T h e principal arguments underpinning these reservations were as follows: (a) the general economy of the Treaty is the case of relationships between indivi- based on obligations incumbent on the Member States, duals. In the light of the material facts of except in very few situations where the Treaty explicitly places obligations on individuals, principally on under- the case in the main proceedings, the above takings, for reasons of protecting competition; (b) other provisions of the Treaty that were vaguely formulated, question arises where discrimination is such as Article 48(2), did not have horizontal direct effect; (c) responsibility for ensuring that the obligations arising attributable to the activities of legal persons from the Treaty are respected lies primarily with the governed by private law, that is to say, Commission which can only bring before the Court an act attributable to a Member State. On this subject, see Durand, C'.-F., 'Les Principes', in Commentaire Mégret. Le droit la CEE, Vol. 1, Preambule, Principes. Libre circulation des marchandises. Editions de l'Université de 40 — See above. paragraph 52 et seq. of this Opinion. Bruxelles, Études européenes, 2nd edition, 1992, p. 60.

75. However, if, in the present case, the discrimination were deemed to be attribu- table to the decisions and practices of the 74. In the context of regulatory arrange- UCM and the EHL, the above case-law of ments governing employment relations, the the Court could not be applied nor could it Court has accepted such reasoning, con- be accepted that Article 7 of the EEC sidering that the action of legal persons Treaty was applicable in the present case governed by private law is of a quasi on the ground that, irrespective of the regulatory nature which assimilates it to public or private character of the above action taken by the State itself. Accord- legal persons, the general intention of their ingly, in regard to Articles 7 and 48 of the action is the collective regulation of social EEC Treaty, the Court has held that security in Luxembourg. It is true that, as 'Articles 7, 48 and 59 have in common indicated in the order for reference and the the prohibition, in their respective spheres observations of the parties, those legal of application, of any discrimination on persons actively participate in collective grounds of nationality ...' .42 More specifi- negotiations in relation to the setting of fees cally, as regards Article 48 of the EEC for medical and hospital care and therefore, Treaty (subsequently Article 48 of the EC in the context of social security, play a role Treaty and now Article 39 EC), the Court similar to that of trade union and employ- has also held that 'the abolition as between ers' representatives engaged in the regula- Member States of obstacles to freedom of tion of employment relations through col- movement for persons and to freedom to lective agreements. Thus, viewed from the provide services would be compromised if standpoint of their general responsibilities, the abolition of State barriers could be those persons are regulatory agents in the neutralised by obstacles resulting from the social security sector which, in a general exercise of their legal autonomy by asso- sense, lends to their action a quasi regula- ciations or organisations not governed by tory character. Nevertheless, in the main public law... It has also observed that proceedings, the EHL's practice of setting working conditions in the different Mem- fees for medical and hospital maternity care ber States are governed sometimes by for persons not affiliated to the national provisions laid down by law or regulation social security scheme does not amount to and sometimes by agreements and other collective regulation of social security because, on the one hand, that practice is

77. Indeed, in the present case, the origin of discrimination on the ground of nationality appears to be the national legal framework (Articles 6, 13 and 308 bis et seq. of the Code des Assurances Sociales) which pro- 78. In this respect, the Court has accepted vided the possibility of regulating by col- that the fact that abstention by a Member lective agreement fees for medical and State from taking action or, as the case may hospital care and the adoption of the be, failure to adopt adequate measures to Grand-Ducal Regulation of 31 December prevent obstacles to Community freedoms 1974 which defined the services in kind in guaranteed within the single market with- the case of confinement. It is precisely in out internal frontiers, obstacles caused regard to the interpretation of that legal particularly by actions of private indivi- and regulatory framework, which is clearly duals on its territory, may have conse- attributable to the Member State, that there quences equally as serious as those of a is a failure to extend to nationals of other positive act aimed at obstructing those Member States of the Community not freedoms. To this end, the Member States affiliated to the national social security themselves have an obligation not only to scheme the fees applied to persons affiliated abstain from adopting measures or enga- to that scheme. This legal and regulatory ging in conduct liable to constitute an framework, without directly setting higher obstacle to the fundamental freedoms, but also, when read with Article 5 of the EEC Treaty (subsequently Article 5 of the EC 44 — Sec also below, paragraphs 113 to 115 of this Opinion. Treaty and now Article 10 EC), to take all

necessary and appropriate measures to Community, pursuant to Article 7 of the ensure that these freedoms are respected EEC Treaty. Consequently, even if that on their territory. 45 discrimination on the ground of nationality were deemed to be attributable to the exercise of discretion by an individual hospital, such as the CHL, or the applica- tion by that hospital of a decision based on an agreement between hospitals, such as the EHL, and those persons were held to be legal persons governed by private law, 79. In view of the fact that discrimination Article 7 of the EEC Treaty would still resulting from action taken by private have to be held to be applicable. individuals on its territory can thus be attributed to a Member State, there is no doubt that not only Article 48 of the EEC Treaty and Article 7 of Regulation No 1612/68, but also Article 7 of the EEC Treaty, particularly where the obliga- tions arising from this article are defined and clear, may be applied to relationships (ad) Conclusion concerning the choice of between those individuals. Accordingly, it legal basis is by no means paradoxical that, in regard to Article 119 of the EEC Treaty (subse- quently Article 119 of the EC Treaty; Articles 117 to 120 of the EC Treaty have 80. In light of the foregoing, I therefore been replaced by Articles 136 EC to 143 propose that, as regards the legal basis of EC), it is henceforth accepted that, since the prohibition on discrimination on the that article has overriding effect, the pro- ground of nationality, the Court should hibition on discrimination between male declare that the national court should apply and female workers applies not only to Article 7(2) of Regulation No 1612/68 to public authorities, but also to all contracts the material facts of the case in the main which collectively regulate paid work, proceedings. If, notwithstanding, the Court including contracts between individuals. 46 should rule that those facts do not come That being the case, it is indeed difficult to within the scope ratione materiae of that imagine that, while an employment con- regulation, then it is entirely open to it to tract between individuals must, pursuant to rule that Article 7 of the EEC Treaty is Article 119 of the EEC Treaty, comply with applicable. the principle of equal pay for male and female workers, in the case of a contract for the provision of medical and hospital care, it would be possible not to comply with the principle of equal treatment between nationals of the Member States of the (b) Different treatment of similar cases

(ba) Scope of the different treatment 83. However, it is worth noting that, as Mr Ferlini contends and as the documents appended to his pleadings appear to show, on the basis of the fees applied in practice, 82. In the order for reference, the national the different treatment relates only to court gives no details as to which compo- certain hospital services and, in particular, nents of hospital care expenses for child- to general childbirth expenses which were birth are treated differently, in terms of the regulated by the unilateral decision of the fees applied, with respect to those persons EHL in respect of persons not affiliated to affiliated to the national social security the national scheme. According to Mr Fer- scheme and those not affiliated to it. The lini, for certain other services not including only relevant figures in the order for childbirth and hospitalisation expenses, the reference pertaining to fees are contained EHL had decided, again unilaterally, to in the outline of the appellant's claims, 47 apply to persons not affiliated to the but in no case is there any precise indica- national social security scheme the uniform tion as to the rules, agreements or decisions fees contractually agreed on 31 December on the basis of which each of the afore- 1974 between the UCM and the EHL in mentioned fees was set. The only informa- relation to expenses covered by the lump tion to be gleaned from the order for sum for childbirth payable to those persons reference and, more specifically, from the affiliated to the Luxembourg insurance formulation of the question for a prelimin- funds. Furthermore, according to Mr Fer- ary ruling which is capable of affording to lini, the above contract was probably the Court guidance in giving its reply is the adopted having regard to the contract fact that from all the provisions existing in concluded between the UCM and the Luxembourg at the time of the material AMMD. facts of the case in the main proceedings it emerges that, in respect of persons and organisations not affiliated to the national social security scheme and European Com-

determine the scope of different treatment bourg on the one hand, and, on the other, and the details of the procedure resulting in those not affiliated to it, including Com- such treatment. munity officials affiliated to the Joint Scheme, are in a similar position, such that the application of different fees for hospital maternity care to each of those categories constitutes discrimination. I consider that the answer to the above question should be 85. However, it is worth noting that, if the affirmative, despite the arguments adduced Court considers that the different treatment by the Luxembourg Government and the and, with it, the resulting discrimination, is CHL, the respondent in the main proceed- attributable to the legal and regulatory ings. framework of the Grand Duchy of Luxem- bourg, 48 then there is no particular point in clarifying the precise basis of the fees charged, or of the decisions, agreements or practices pursuant to the above legal and regulatory framework on which such dis- crimination is based. Discrimination is established where there is the possibility of according different treatment contrary to Community law, which is the case in respect of the abovementioned legal and 87. First, the fact that the two categories of regulatory framework, irrespective of whe- persons are affiliated to different legal ther those applying that framework decide, social security schemes cannot justify the for whatever reason, to avail themselves of contention that these are two cases which that possibility at a given time, or not to do should be treated differently under Com- so. munity law in respect of fees for medical and hospital maternity care. Notwithstand- ing their respective autonomy neither the Luxembourg national social security scheme nor the Joint Scheme can infringe the principles and rules which govern Community law. As the Court has held, even if, 'in the absence of harmonisation at Community level, it is therefore for the (bb) Similarity of cases treated differently legislation of each Member State to deter- mine, first, the conditions concerning the right or duty to be insured with a social security scheme ... and, second, the condi- tions for entitlement to benefits ... the 86. In light of the material facts of the case Member States must nevertheless comply in the main proceedings, the question arises with Community law when exercising as to whether the two categories of persons, those powers'. 49 Moreover, it would be in other words, those affiliated to the difficult to view discrimination in respect of national social security scheme in Luxem-

89. Secondly, the fact that, at the time of 88. Moreover, the argument that Commu- the material facts of the case in the main nity officials do not need to rely on the proceedings, no agreement had been con- rules of Community law in order to move cluded between the Joint Scheme and the freely within the territory of the Member EHL, while such agreements existed with States of the Community because they the UCM, does not appear to be relevant in enjoy the rights conferred on them by the regard to the existence of discrimination Protocol on the Privileges and Immunities between similar cases. As the Commission of the European Communities is not per- and Mr Ferlini point out, the present case suasive. Those rights are conferred in the concerns fees for services not arising out of interest of the Communities to enable them contract, but in relation to all the childbirth to accomplish their mission, 50theyrefer as services provided for by the legal and a rule to the treatment accorded to diplo- regulatory provisions. In any case, it should matic missions 51and they do not have the be noted that, in view of their mandatory scope and force of the rights conferred by nature within the framework of the Lux- Community law on Community nation- embourg system, the abovementioned

52 — A non-national of a Member State may he appointed as a 50 — See Article 18 of the Protocol. Community official subject to an exception as provided for 51 — See Article 6 of the Protocol. in Article 28(a) of the Staff Regulations.

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92. Moreover, as to the fact that persons not affiliated to the national social security scheme do not pay taxes, the Court has ruled, in relation to the specific situation of 94. As the Commission correctly states, if a Community official and his family, that the above argument were accepted, espe- 'although under the second paragraph of cially in conjunction with the assertion of Article 13 of the Protocol on the Privileges the CHL, the respondent in the main and Immunities of the European Commu- proceedings, that the fees applied to Com- nities he is exempt from national taxes on salaries, wages and emoluments paid by the Communities, he is liable on the other 53 — See Forcheri (cited above, footnote 34), paragraph 19.

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97. Apart from the fact that they are not invoked by either the CHL or the Luxem- bourg Government, none of the exceptions provided for in Article 48(3) of the EEC Treaty, not even that concerning public health, appear to be applicable in the present case. As the Commission rightly points out, nobody could reasonably ima- gine that public health is dependent on fixing different fees for medical services in respect of persons affiliated to the national 95. Finally, as the Commission correctly scheme, on the one hand, and Community points out, whilst all the foregoing argu- officials, on the other, or actually that the ments concerning the financial situation of application of the same fees constitutes a Community officials and the fact that they threat to public health. pay neither taxes nor contributions could possibly be used in an attempt to justify the Luxembourg insurance funds in not cover- ing or reimbursing medical expenses, on no account do those arguments appear appro- priate merely in order to justify increased healthcare fees. 98. Since the different treatment at issue is concerned with a purely economic pro- blem, it could possibly be argued that it 54 — Sec Cases 186/87 COHWI [1989]ECR 195. paragraphs 15 comes within the terms of the ruling in to 17, and C-45/93 Commission v Spurn [1994| ECR 1-911 concerning the right or tourists, who arc nationals or a Member State of the Community, to enter another Member Stare ami receive services there tinder the same conditions applicable to nationals of that State who arc 55 — See, for instance. Menus (cited above, footnote 14}, permanently resident there. paragraph 45.

102. In the final analysis, there is nothing to support the view that, owing to their incomes which may be comparatively high 100. It should be borne in mind that and the fact that their insurance fund neither the Luxembourg State nor the provides levels of cover and reimbursement Luxembourg insurance funds cover medical which may be comparatively high, Com- and hospital maternity care expenses for munity officials and their insurance orga- persons not affiliated to the national nisation are obliged to finance the Luxem- scheme and, more specifically, Community bourg national social security scheme. officials, whilst in the case of persons who are affiliated those expenses are covered by the State and not by the insurance funds. Consequently, despite the perhaps consid- erable number of Community officials who live in Luxembourg, medical and hospital maternity care provided for those officials does not appear to place a particular (d) Conclusion on the prohibition of dis- burden on that State's social security sys- crimination on the ground of nationality tem.

103. Having regard to the foregoing obser- vations, I therefore consider that Arti- 101. If it were shown that the fees applied cle 7(2) of Regulation No 1612/68 pre- to persons affiliated to the national scheme cludes the application to nationals of are lower than the cost of the services

57 — See above, paragraph 94 of this Opinion. 56 — See Case C-120/95 [1998] ECR I-1831, paragraph 39. 58 — See above, paragraph 92 of this Opinion.

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105. In the present case, the possible infringement of Article 85(1) of the EEC Treaty relates mainly to the fact that a group of hospitals, in this case the EHL, 107. In order to decide therefore whether, applies to persons and organisations not in the present case, there is a prohibited affiliated to the national social security scheme, which category includes European 60 — See above, paragraph 77 of this Opinion. 61 — See, for instance, Cases C-2/91 Meng |[993] ECR I-5751, paragraph 14 and C-7G795 Sodemare and Others [1997] 59 — See Terhoere (cited above, footnote 28), paragraph 57. ECR I-3395, paragraph 4 1 .

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111. The CHL and other Luxembourg hospitals are engaged in economic activities (a) Existence of an undertaking and asso- to the extent that they provide services — ciation of undertakings in the present case, maternity care ser- vices — for payment. 63 I consider that, having regard to the broad interpretation given in the Court's case-law to the concept of economic activity and, in consequence, to the term 'undertaking', the objection 108. Article 85(1) deals with agreements cannot be raised that professional activities, between undertakings, decisions by asso- such as those exercised by the medical ciations of undertakings and concerted profession which are governed by particu- practices. Accordingly, the first issue to be lar rules of ethics and for the fixing of fees, examined is whether hospitals are under- are not in principle of a commercial nature takings and whether a group of hospitals, and cannot, on those grounds alone, con- like the EHL, constitutes an association of stitute economic activity subject to the undertakings within the meaning of the competition rules. 64 That is even more so provision in question. the case when, as I shall explain below, the

62 — See, for instance, Cases C-41/90 Höfner and Elser [1991] ECR 1-1979, paragraph 21 and Joined Cases C-159/91 and C-160/91 Poucet and fistre [1993] ECR 1-637, paragraph 17. 63 — On the concept of economic activity, see Case C-35/96 Commission v Italy [1998] ECR 1-3851, paragraph 36. 109. The Court has ruled that the concept 64 — See Commentaire J. Mégret. Le droit de la CE. 4. of an undertaking 'encompasses every Concurrence; Waelbroeck, M., and Frignani, A., Études européennes, collection dirigée par l'Institut d'Études entity engaged in economic activity, regard- européennes, 2nd edition, 1997, pp. 37-38.

113. As the Commission correctly points out, it cannot be maintained that, in their relations with persons not affiliated to the 114. On the latter point, which is also the national social security scheme, hospitals, point at issue in connection with the even if deemed public, carry on an activity possible infringement of the competition within the scope of the social security rules, it should be noted, as the Court has services. Since the hospitals themselves rely held, 'in competition law, the term "under- on the fact that Community officials do not taking" must be understood as designating come within the scope of the above ser- an economic unit for the purpose of the vices, their relations with those officials, subject-matter of the agreement'. 66 In although they concern medical and hospital other words, in each case, the term 'under- care, cannot but be deemed economic in taking' must be understood in a functional principle and alien to every concept of sense, having regard to the activity which is national solidarity in the context of social connected to the subject-matter of the security. Consequently, there are no specific agreement between undertakings, grounds for applying the judgment cited the decision by associations of undertak- above in Poucet and Pistre in which the ings or the concerted practice. Court held that 'sickness funds, and the organisations involved in the management of the public social security system, fulfil an 65 — Poucet and Pistre (cited above, footnote 62), para- exclusively social function. That activity is graphs 18 and 19. 66 — On this point, see Case 170/83 Hydrotherm Gerätebau based on the principle of national solidarity [1984] ECR 2999, paragraph 11.

67 — It should be noted that it is accepted that 'an association of 116. Once hospitals may be deemed under- undertakings' exists if there is a coordinated body, even if takings, in regard to their relations with it has no legal personality (on this point, see Commentaire J. Méßret, op. cit., pp.133-134). Also, the Court has ruled persons not affiliated to the national social that it is irrelevant whether the association is or is not profit-making (see Joined Cases 209/78 to 215/78 and security scheme, it appears that their group, 218/78 Van Limdeivyck and Others [1980] ECR 3125, in the present case the EHL, may constitute paragraph 88). Moreover, it is worth noting that, in connection with the an association of undertakings in the con- existence of 'an association of undertakings', the Court has frequently reiterated the idea of direct or immediate text of the above relations. However, since representation of undertakings' interests in a given sector the order for reference gives no detailed and has established the conditions under which members of certain committees, responsible for setting the tariffs account of the rules governing the EHL's applicable to all the undertakings engaged in a given activity, may not be regarded as representatives of the organisation and operation, the Court is industrial undertakings concerned. Under the Court's case- not in a position to consider the matters law, those conditions are: (a) the members of the boards in question (tariff boards) must not be bound by orders or adverted to principally by Mr Ferlini instructions from the undertakings or associations that propose them for appointment; the boards cannot be according to which the EHL constitutes a regarded as meetings of representatives of undertakings in non-profit-making association with legal the sector concerned; the members of the boards can accordingly be regarded as independent experts; and (b) personality and should be deemed to con- the members of these tariff boards are obliged by law to set tariffs having regard not only to the exclusive interests of stitute an association of undertakings the undertakings or associations of undertakings in the sector which appointed them, but also to the general within the meaning of Article 85(1). It is interest and the interests of undertakings in other sectors or for the national court, which is conversant users of these services. See, for instance, Cases C-185/91 Reiff [1993] ECR 1-5801, C-153/93 Delta Scbiffahrts- und with the national law, to form a view as to Speditionsgesellschaft [1994] ECR I-2517, C-96/94 Centro Servizi Spediporto [1995] ECR I-2883 and Joined Cases those matters and to apply the criteria C-140/94 to C-142/94 DIP and Others [1995] established in the Court's case-law as to ECR I-3257.

120. Moreover, 'as the Court has consis- tently held, it is unnecessary to consider the actual effects of an agreement if it is apparent that it has the object of prevent- 118. Since Article 85(1) of the Treaty refers ing, restricting or distorting competition. to the three possible forms of cooperation The same principle applies to a decision of (an agreement between undertakings, a an association of undertakings'. 68 decision by an association of undertakings or a conceited practice), the precise dis- tinction between them does not appear of major significance in answering the pre- liminary question before the Court. How- ever, in light of the foregoing, the present case would appear in all probability to 121. Furthermore, a horizontal agreement, involve a decision by an association of a concerted practice or a decision by an undertakings, though the existence of an association of undertakings in the same agreement between undertakings or a mere sector to set uniform scale fees for services concerted practice cannot of course be provided constitutes, as both the Commis- ruled out. In any case, it is once again for sion and Mr Ferlini state, a classic example the national court, which is more conver- of an agreement which has as its object the sant with the legal aspects and material prevention of competition in the relevant facts of the case in the main proceedings, to market for services. For that reason, Arti- make the appropriate determination in cle 85(1 )(a) expressly prohibits any infrin- applying the conclusions of the Court's gements of the rules of free competition case-law and possibly referring to the Court, if necessary, a new question for a preliminary ruling in connection with that 68 — Sec Case 45/85 Verband der Saehverstcherer (19871 determination. ECR 405, paragraph 39.

124. Moreover, it has been consistently held that 'the fact that a price-fixing (d) Effect on intra-Community trade agreement of the type in question only covers the marketing of products in a single Member State does not rule out the possi- ' bility that trade between Member States may be affected. In fact, a restrictive 123. It is worth remembering that, as the agreement extending over the whole of Court has consistently held, Article 85(1) the territory of the Member State is by its of the Treaty does not stipulate that very nature liable to have the effect of agreements caught by this provision must reinforcing the compartmentalisation of have affected intra-Community trade, markets on a national basis, thereby hold- which in the majority of cases is difficult ing up the economic interpénétration which to prove to the requisite legal standard, but the Treaty is designed to bring about and requires it to be established that those protecting domestic production. In that agreements are likely to have such an connection, it is important to identify the effect. 70 Likewise, it has been consistently means available to the parties to a restric- tive agreement to ensure that customers

69 — See Case 243/83 Binon [1985] ECR 2015, paragraph 44 and Verband der Sachversicherer (cited above, foot- 71 — See, for instance, Ferriere Nord v Commission (cited note 68), paragraph 41. above, footnote 70), paragraph 20, Case C-399/93 Onde 70 — See, for instance, Cases 123/83 BNIC v Clair [1985] Luttikhuis and Others [1995] ECR I-4515, paragraph 18 ECR 391, paragraph 22 and C-219/95 P Fernere Nord v and Van Landewyck (cited above, footnote 67), para- Commission [1997] ECR I-4411, paragraph 19. graph 170.

125. In the present case, the effect on intra- Community trade may result from the fact that the imposition of higher charges for hospital maternity care may, in all prob- ability, lead those not affiliated to the Luxembourg national scheme to seek treat- 127. First, the practice of fixing higher fees ment outside Luxembourg. In other words, for hospital maternity care, which apply the contested decision of the EHL to fix throughout the whole territory and in all higher charges for those not affiliated to the the hospitals of a Member State may in national scheme and for Community offi- general terms, by its very nature, have the cials employed in Luxembourg and affili- effect of further partitioning the national ated to the Joint Scheme, may deflect from market, thereby preventing the economic its anticipated course the commercial activ- interpenetration which the Treaty is ities consisting in the provision of hospital designed to bring about. The fact that the care in the case of maternity on the present case concerns the Luxembourg appropriate market. State and, principally, Community officials who work there, militates significantly in favour of the above probability. On account of Luxembourg's small geographi- cal size and its proximity to three other Member States (Belgium, France and Ger- 126. Although it is for the national court, many), it may be considered highly likely which is more conversant with the national that a large number of Community officials law and the material facts of the case in the who work in Luxembourg will seek hospi- main proceedings, to examine in detail the tal treatment in the neighbouring Member legal and factual parameters on the basis of States, and also highly likely that Commu- which the above effect on intra-Community nity officials who work in those neighbour- trade is likely to be established, it is worth ing States will avoid receiving treatment in pointing out certain matters which, in light Luxembourg hospitals because of the high fees charged there. Moreover, the possibi- lity cannot be discounted that, as Mr Fer- 72 — See Case 73/74 Groupement des fabricants de papiers lini points out in his observations, hospitals peints de Belgique and Others v Commission (1975) ECR 1491, paragraphs 24-26. in neighbouring States will attempt to It is worth noting that in other judgments the Court adjust their fees in line with the high fees appears to use a more absolute formula, stating simply that 'an agreement extending over the whole territory of a set by the EHL or that, as the Commission Member State has by its very nature the effect of reinforcing the compartmcntalisation of markets on a notes, organisations with which those not national basis, thereby holding up the economic interpé- affiliated to the national social security netration which the Treaty is designed to bring about'. See, for instance, Cases 8/72 Vereniging van Cementhandelaren scheme are insured, will conclude prefer- v Commission [1972] ECR 977, paragraph 29 and 42/84 ential agreements with hospitals or clinics Remia and Others v Commission [19851 ECR 2545, paragraph 22. located in another Member State.

129. At this point it should be noted that the national court may find that the fore- going probable restrictions on intra-Com- munity trade have not yet been found to (e) The appreciable extent of the restriction exist in practice, particularly to the appre- on competition and its effect on intra- ciable extent required by case-law, 74 Community trade because the higher fees for hospital mater- nity care applied mainly to Community officials are to a very large extent covered by the Joint Scheme, which reduces the importance Community officials attach to the level of fees in question when choosing 130. To fall within the scope of the prohi- a hospital. Nevertheless, a possible finding bition laid down in Article 85, an agree- to that effect should not lead to the conclusion that there is no effect on intra- Community trade within the meaning of 75 — It is worth noting that, in Case 107/82 AEG v Commission [1983] ECR 3151, paragraph 60, the Court held, in the provisions of Community law. On the connection with agreements that by their nature can have an effect on intra-Community trade, that 'the mere fact that at a certain time traders applying for admission to a distribution network or who have already been admitted are not engaged in intra-Community trade cannot suffice 73 — However, as the Commission points out, if the higher to exclude the possibility that restrictions on their freedom uniform fees at issue apply to all hospital care and not just of action imposed by the manufacturer may impede intra- to the costs of maternity expenses (see above, para- Community trade, since the situation may change from graph 83 of this Opinion), that will have to be taken into one year to another in terms of alterations in the account in assessing the overall probable effect on intra- conditions or composition of the market both in the Community trade. common market as a whole and in the individual national 74 — See below, paragraph 130 et seq. markets' (emphasis added).

ment between undertakings, a decision by case in the main proceedings, to assess an association of undertakings or a con- whether intra-Community trade is appreci- certed practice must be capable of having ably affected by the EHL's decision, having an appreciable effect on trade between regard to the position which Luxembourg Member States and on competition. 76 On hospitals occupy in the relevant market. this point, the Court has ruled that 'the However, it is first necessary to determine effect which an agreement might have on the relevant market. trade between Member States is to be appraised in particular by reference to the position and the importance of the parties on the market for the products con-

131. In the present case, it is for the compulsory for all. Moreover, from the national court, which is more conversant point of view of demand, in other words with the legal and factual parameters of the from the point of view of those persons affiliated to the national social security scheme who need hospital maternity care, 76 — See Case 22/71 Béguelin [1971] ECR 949, paragraph 16. the services in question cannot be substi- 77 —See Case C-306/96 Javico [1998| ECR I-1983, para- tuted by other services, which renders the

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national social security scheme and who, the EEC Treaty should be interpreted as for the most part, appear to be Community meaning that it prohibits a decision by an officials. In particular, consideration must association of hospitals, such as EHL's be given to the geographical size of the decision in the present case, fixing for place where the hospitals providing mater- nationals of Member States who work in nity care are situated and, given the nature the territory of another Member State such of those services, their location at an as, in this case, the Grand Duchy of appropriate distance from the place where Luxembourg, but who are not affiliated to the recipients of the above services reside. It the national social security scheme of that could be argued that, in general terms, on State, including European Community offi- the basis of the above criteria, a relevant cials affiliated to the SIS, fees for hospital market is defined geographically as extend- maternity care higher than those applicable ing, in the material case, throughout the to residents of that State who are affiliated whole territory of Luxembourg and into to the national social security scheme, if the the relevant part of the neighbouring States' national court considers that the above- territory. mentioned decision is capable of having an appreciable effect on intra-Community trade. 78

134. On the basis of the foregoing con- siderations, it is for the national court to determine whether, within the abovemen- tioned geographically defined market, the market share of the hospitals belonging to the EHL concerned with providing the abovementioned services to persons work- ing in Luxembourg who are not affiliated to the national social security scheme is significant or not.

(2) Article 85(1) of the EEC Treaty must be interpreted as meaning that it prohibits a decision by an association of hospitals such as, in the present case, the decision by the EHL fixing for nationals of Member States who work in the territory of another Member State such as, in this case, Luxembourg, but are not affiliated to the national social security scheme of that State, including European Community officials affiliated to the Joint Scheme, fees for maternity hospital care higher than those applicable to residents of that State who are affiliated to the national social security scheme, if it is judged that the above decision is capable of having an appreciable effect on intra-Community trade.

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