The ECJ considers legal requirements to belong to the AG2R

EU law is not opposed to the French government making compulsory the affiliation to a scheme for supplementary reimbursement of healthcare costs for all undertakings within the sector concerned, without any possibility of exemption. Government authorities can confer the “exclusive” right to manage this scheme on insurers that are responsible for “services of general economic interest”. Companies in the sector in question are obliged to regularize their affiliation with the scheme.
This was the gist of the judgment handed down by the Court of Justice of the European Union (CJEU) on the 3rd of March, 2011.  The Court was petitioned by the Tribunal de Grande Instance de Périgueux (High Appellate Court) in the case C-437/09 to rule on the conformity to EU law of the clause designating AG2R Prévoyance to insure the reimbursement of supplementary healthcare costs for all companies and employees of the traditional bakery sector.
The CJEU first pointed out that this reimbursement scheme had been established by agreement between the social partners of the sector in the “form of an addendum to a collective bargaining agreement”, and that the nature and object of such an agreement do not fall within the scope of competition law. The agreement’s purpose is to: “[reduce] the costs which, in the absence of a collective bargaining agreement, would have had to be borne by the employees”. Therefore, the Court recognizes that the AG2R pursues a “social objective”.
Although the AG2R is a non-lucrative organization and acts on the principle of solidarity, it does nonetheless qualify as an undertaking “engaged in an economic activity” in a competitive market of provident services. The government’s decision to make affiliation to a scheme for supplementary reimbursement of healthcare costs compulsory without any possibility of exemption to the entire traditional bakery sector effectively grants that body an exclusive right to receive and manage the contributions paid by the employers and employees in that sector under that scheme. Thus, the AG2R holds a legal monopoly in this branch, which is not incompatible with the treaty as long as the company does not abuse its dominant position.
In addition, the Court recognizes that the scheme is characterized by “a high degree of solidarity”, and by reason of “the fixed nature of the contributions and the obligation to accept all risks”. The constraints of the insurance company make it “less competitive than a comparable service provided by insurance companies not subject to those constraints”, and justifies the “exclusive right of that body to manage such a scheme, without no possibility of exemption from affiliation”. Therefore, the Court recognizes not only the appointment clause but also the transfer clause, whose suppression would prevent the AG2R from “[performing] tasks of general economic interest which have been assigned to it under economically acceptable conditions”.

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