30.4.2011

Official Journal of the European Union

C 130/5

(Case C-437/09)(1)

(Competition - Articles 101 TFEU, 102 TFEU and 106 TFEU - Scheme for supplementary reimbursement of healthcare costs - Collective agreement - Compulsory affiliation to a specific insuring body - Express exclusion of any possibility of exemption from affiliation - Concept of an undertaking)

2011/C 130/08

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: AG2R Prévoyance

Defendant: Beaudout Père et Fils SARL

Re:

Reference for a preliminary ruling — Tribunal de Grande Instance de Périgueux — Competition — National legislation making affiliation to a single designated insurer compulsory for all undertakings in a given professional sector — Concept of undertaking within the meaning of Article 81 EC — Body claiming payment of contributions from an undertaking which had already entered into a contract of insurance offering better cover — Explicit exclusion of any possibility of waiver of the affiliation obligation — Whether such an affiliation scheme is compatible with Articles 81 EC and 82 EC — Possible risk of abuse of a dominant position

Operative part of the judgment

1.Article 101 TFEU, read in conjunction with Article 4(3) EU, must be interpreted as not precluding the decision by the public authorities to make compulsory, at the request of the organisations representing employers and employees within a given occupational sector, an agreement which is the result of collective bargaining and which provides for compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all undertakings within the sector concerned, without any possibility of exemption.

2.Inasmuch as the activity consisting in the management of a scheme for supplementary reimbursement of healthcare costs such as that at issue in the main proceedings is to be classified as economic — this being a matter for the national court to determine — Articles 102 TFEU and 106 TFEU must be interpreted as not precluding, in circumstances such as those of the case in the main proceedings, public authorities from granting a provident society an exclusive right to manage that scheme, without any possibility for undertakings within the occupational sector concerned to be exempted from affiliation to that scheme.

(1) OJ C 24, 30.1.2010.