Official Journal of the European Union

(Case C-350/07) (*)

(Competition - Articles 81 EC, 82 EC and 86 EC - Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases - Concept of an ‘undertaking’ - Abuse of dominant position - Freedom to provide services - Articles 49 EC and 50 EC - Restriction - Justification - Risk of serious harm to the financial equilibrium of the social security scheme)

2009/C 102/07

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Kattner Stahlbau GmbH

Defendant: Maschinenbau- und Metall- Berufsgenossenschaft

Re:

Reference for a preliminary ruling — Sächsisches Landessozialgericht — Interpretation of Articles 81 EC and 82 EC and of other provisions of Community law — National legislation establishing a compulsory insurance scheme against the risk of accidents at work and occupational diseases, consisting of a number of associations for the prevention of accidents at work (‘Berufsgenossenschaft’) and which provides for undertakings to be compulsorily affiliated to the association having the requisite territorial and occupational competence — Whether such associations for the prevention of accidents at work, which are able to fix the level of their subscriptions independently, without any upper limit being prescribed by national legislation, constitute an ‘undertaking’ within the meaning of Articles 81 EC and 82 EC

Operative part of the judgment

1.Articles 81 EC and 82 EC are to be interpreted to the effect that a body such as the employers' liability insurance association at issue in the main proceedings, 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 those provisions, but fulfils an exclusively social function, where such a body operates within the framework of a scheme which applies the principle of solidarity and is subject to State supervision, which it is for the referring court to verify.

2.Articles 49 EC and 50 EC are to be interpreted to the effect that they do not preclude national legislation such as that at issue in the main proceedings, pursuant to which undertakings in a particular branch of industry and a particular territory must be affiliated to a body such as the employers' liability insurance association at issue in the main proceedings, 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 referring court to verify.

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(*) OJ C 269, 10.11.2007.