Keywords
Summary

Keywords

1. Competition – Community rules – Undertaking – Meaning – Undertaking responsible for providing compulsory insurance against accidents at work and occupational diseases

(Arts 81 EC and 82 EC)

2. Freedom to provide services – Restrictions – National legislation establishing a compulsory insurance scheme against accidents at work and occupational diseases – Whether justified by requirements in the general interest – Financial equilibrium of a branch of social security

(Arts 49 EC and 50 EC)

Summary

1. A body to which undertakings in a particular branch of industry and a particular territory must be affiliated in respect of insurance against accidents at work and occupational diseases is not an undertaking within the meaning of Articles 81 EC and 82 EC, but fulfils an exclusively social function, where it operates within the framework of an insurance scheme which applies the principle of solidarity and is subject to State supervision. The fact that the body provides insurance services directly does not, of itself, affect the purely social nature of that function, in so far as it does not affect either the solidarity inherent in that scheme or State supervision of it.

As regards the condition relating to the solidarity inherent in the insurance scheme, that condition is satisfied where the scheme is financed by contributions the rate of which is not systematically proportionate to the risk insured and the value of the benefits paid is not necessarily proportionate to the insured person’s earnings. Doubt is not cast on the solidarity inherent in the funding either by the fact that there is no ceiling in respect of contributions or by the fact that the scheme is implemented not by a single body but by several bodies on a sectoral and/geographic basis or, lastly, by the fact that those bodies may decide to lay down a uniform minimum contribution.

As regards the condition relating to supervision by the State, the fact that employers’ liability insurance associations are given a degree of latitude, within the framework of a system of self-management, in order to lay down the factors that determine the amount of contributions and benefits cannot as such be capable of changing the nature of those associations’ activity in so far as that degree of latitude is established and strictly delimited by law and, in addition, those bodies are under State supervision in that regard.

(see paras 44, 50-55, 61-62, 64-68, operative part 1)

2. National legislation establishing a compulsory insurance scheme in respect of accidents at work and occupational diseases, which pursues a social objective, operates in a way that applies the principle of solidarity and is placed under State supervision, may constitute a restriction of the freedom to provide services, in that it hinders or renders less attractive, or even prevents, directly or indirectly, the exercise of that freedom by the providers of insurance services established in other Member States who wish to offer contracts of insurance covering such risks in the Member State concerned and by undertakings that are covered by the scheme who wish to approach such providers. However, such legislation reflects overriding requirements relating to the general interest intended to ensure the financial equilibrium of a branch of social security, since compulsory affiliation, in so far as it ensures that all undertakings covered by the relevant scheme are grouped together within risk communities, enables the principle of solidarity to be implemented. In those circumstances, Articles 49 EC and 50 EC do not preclude national legislation of that kind, to the extent that that scheme does not go beyond what is necessary to achieve the objective of ensuring the financial equilibrium of a branch of social security, which it is for the national court to verify.

In that regard, the fact that the scheme offers minimal cover, so that, despite the fact that it makes affiliation compulsory, undertakings covered by the scheme may top up their cover by taking out supplementary insurance, assuming it is available on the market, is a factor militating in favour of proportionality.

(see paras 77, 82-89, operative part 2)