Opinion of the Advocate-General

Opinion of the Advocate-General

I – Introduction

1. In these joined cases, collective agreements were negotiated by the social partners with a view to establishing supplementary social insurance schemes, providing amongst other things for the payment of healthcare costs. In those agreements the social partners designated a single insuring body, without any competitive tendering procedure having been used. Subsequently, the public authorities made membership of the schemes compulsory for all employees and employers in the relevant sector, by means of an extension procedure.

2. The principal legal question raised in these matters is whether the case-law relating to the interpretation of Article 56 TFEU, the principle of equal treatment, and the consequent obligation of transparency (case-law which has largely been developed by the Court in the field of service concessions) applies mutatis mutandis to the extension procedure described above.

3. The present references for preliminary rulings, Cases C‑25/14 and C‑26/14, are made by the Conseil d’État (Council of State, France) and arise respectively out of two actions in which the Union des syndicats de l’immobilier (UNIS) (‘UNIS’) and Beaudout Père et Fils SARL (‘Beaudout’) seek annulment of two orders of the French Minister for Work, Employment and Health, extending the collective agreements as described above. The question they raise is whether there is an obligation of transparency which arises from Article 56 TFEU and applies to an extension decision made by the public authorities, whereby an exclusive right (2) is granted to an economic operator. These matters are therefore closely related to the case that gave rise to the judgment in AG2R Prévoyance , (3) in that they involve considering the same scheme (that to which Case C‑26/14 relates) in the light of the fundamental freedoms, particularly the freedom to provide services, rather than in the light of EU competition law.

II – The French legal background

4. In France, healthcare costs incurred by employees in the event of illness or accident are reimbursed in part by the basic social security scheme. The portion of the costs for which the insured remains responsible may be reimbursed in part by supplementary health insurance.

5. The relevant provisions of French law are found in the Social Security Code and the Labour Code.

6. Under Article L. 911-1 of the Social Security Code, the collective cover to which employees are entitled may be determined, amongst other methods, by means of collective agreements whose provisions are, in principle, binding only on members of the representative bodies of employers and employees which negotiated and concluded them. Article L. 911-3 of the code provides that such agreements may, however, be extended by order of the competent Minister.

7. Under Article L. 912-1 of the Social Security Code, in the version which was in force between 24 June 2006 and 25 December 2013, ‘where the occupational or inter-occupational agreements mentioned in Article L. 911-1 provide for a pooling of the risks for which cover is arranged, pursuant to their terms, with one or more of the bodies mentioned in Article 1 of Law No 89 1009 ... or one or more of the institutions mentioned in Article L. 370-1 of the Insurance Code, such that the undertakings subject to those agreements are obliged to participate in that pooling of risks, they shall contain a clause setting out the circumstances in which, and the frequency with which, the detailed arrangements for the pooling of risks may be reviewed. The frequency of the review may not be less than once every five years.’ (4)

8. The procedure for extending an agreement is governed by the Labour Code, more particularly Articles L. 2261-15, L. 2261-19, L. 2261-24, L. 2261-25, L. 2261-27 and D. 2261-3 thereof. The effect of those provisions is that sectoral agreements and occupational or inter-occupational agreements concluded through joint committees, including their addenda and annexes, may be extended in certain circumstances by order of the competent Minister, so as to make them binding on all employees and employers falling within the scope of the agreement in question. The National Commission for Collective Bargaining must have been consulted in advance, and must have delivered a reasoned opinion in favour of the extension. In the event that at least two of the bodies of employers or two of the bodies of employees represented on the commission oppose the extension, giving reasons for so doing, the Minister may hold further, detailed consultations with the commission, and may then decide to extend the agreement having regard to the new opinion.

9. Article L. 2261-25 of the Labour Code provides:

‘The Minister responsible for labour may, following a reasoned opinion from the National Commission for Collective Bargaining, exclude clauses from the extension where they would conflict with legal provisions.

The Minister may also exclude clauses which can be removed without altering the scheme of the agreement, but which are not appropriate in the sector or sectors which fall within the extended scope under consideration.

...’

10. Article D. 2261-3 of the Labour Code provides:

‘Before an order is made extending or broadening the scope of a collective agreement, a notice shall be published in the Official Journal of the French Republic inviting observations from interested bodies and persons. The notice shall state where the agreement has been filed and the office to which the observations are to be presented.

The interested bodies and persons have 15 days beginning with the publication of the notice to submit their observations.’

11. Article 1 of Law No 89-1009 of 31 December 1989 enhancing the cover offered to insured persons against certain risks (5) provides:

‘The provisions of this Title shall apply to operations intended to insure against, and provide cover in respect of, the risk of death, risks of physical injury or relating to childbirth, or risks of incapacity for work, disability or unemployment.

Only the following bodies may provide the insurance cover referred to in the first paragraph of this Article:

(a) undertakings governed by the Insurance Code;

(b) institutions subject to Title III of Book VII of the Social Security Code;

(c) institutions subject to Part 4 of Chapter II of Title II of Book VII of the Rural Code;

(d) mutual organisations subject to the Mutuality Code.’

III – The facts, the main proceedings, the question referred and the procedure before the Court

12. As regards Case C‑25/14, the national collective agreement for real estate was concluded on 9 September 1988. A compulsory scheme of insurance covering death, incapacity for work and invalidity, and a compulsory scheme for reimbursement of healthcare costs, were instituted by Addendum No 48 of 23 November 2010, and Addenda Nos 49 and 50 of 17 May 2011. Article 17 of Addendum No 48 designates the provident society Institution de Prévoyance de Groupe Mornay as sole insuring body in respect of the cover provided under those two schemes, for a period of three years.

13. By order of 13 July 2011, the Minister of Labour, Employment and Health made Addenda Nos 48 to 50 binding on all employees and employers in the sector concerned.

14. As regards Case C‑26/14, the national collective agreement for traditional bakery and pastry-making undertakings was concluded on 19 March 1976. A scheme for supplementary reimbursement of healthcare costs, benefiting employees in that sector, was established by Addendum No 83 of 24 April 2006, based on a pooling of the insured risks and compulsory participation by employers. By the same addendum, the provident society AG2R (‘AG2R’) was designated as the scheme’s sole managing body. By Article 6 of Addendum No 100 of 27 May 2011, AG2R was again designated, on this occasion for a period of 5 years, as the scheme’s insuring body.

15. By order of 23 December 2011, the Minister of Labour, Employment and Health made Addendum No 100 binding on all employees and employers in the sector concerned.

16. By actions brought before the Conseil d’État, on 23 September 2011 and 24 February 2012 respectively, UNIS sought the annulment of the extending order of 13 July 2011, and Beaudout that of the extending order of 23 December 2011.

17. Amongst other pleas, UNIS and Beaudout submitted that the insuring bodies of the supplementary social insurance schemes in question had been appointed in breach of the obligation of transparency arising from Article 56 TFEU, as interpreted by the Court. In this regard, UNIS and Beaudout relied in particular on the judgment in Sporting Exchange , (6) arguing that in that judgment the Court characterised the obligation of transparency as a mandatory prior condition to the right of a Member State to grant an operator an exclusive right to carry out an economic activity, which applies regardless of the method used to select that operator.

18. The referring court has indicated that the provident societies Institution de Prévoyance de Groupe Mornay and AG2R, despite being non-profit-making organisations operating on the principle of solidarity, must be considered to be undertakings engaged in economic activity, which had been selected by the social partners from amongst other undertakings against which they compete in the market for the insurance services they offer.

19. The referring court considers that the outcome of the pleas based on breach of the obligation of transparency depends on whether compliance with that obligation is a mandatory prior condition to an extension such as those at issue in the main proceedings, and that this issue is decisive in the disputes before it.

20. As it was in doubt as to the correct interpretation of Article 56 TFEU, the Conseil d’État, by two decisions of 30 December 2013, stayed the main proceedings and referred the following question, formulated in identical terms in both cases, to the Court for a preliminary ruling:

‘Is compliance with the obligation of transparency flowing from Article 56 TFEU a mandatory prior condition for the extension, by a Member State, to all undertakings within a sector, of a collective agreement under which a single operator, chosen by the social partners, is entrusted with the management of a compulsory supplementary social insurance scheme for employees?’

21. Written observations were submitted by UNIS, Beaudout, the Syndicat national des résidences de tourisme (SNRT) and Others (‘SNRT’), the Confédération nationale de la boulangerie et boulangerie-pâtisserie française, the Fédération générale agroalimentaire FGA — CFDT and Others, the French Government, the Belgian Government, and the European Commission, all of which were represented at the hearing which took place on 22 January 2015.

IV – Analysis

A – Preliminary remarks

22. I should make clear at the outset that the Conseil d’État’s question relates to a procedure by which a Member State extends a collective agreement, including the designation of a single insurer, to all undertakings in a sector, and not to the selection of that operator by the social partners. To my mind it is obvious, however, that the question of whether the decisions at issue comply with the provisions relating to the freedom to provide services cannot be analysed in isolation from the procedure followed by the social partners, which forms the background to the decision, given that, in extending a collective agreement, the competent Minister cannot select a different insurer from that chosen by the social partners.

23. Some of the parties which submitted written observations have emphasised the importance of freedom of contract and the right of collective bargaining. It is true that the right of collective bargaining is recognised by the provisions of various international instruments on which the Member States have cooperated or which they have ratified, and also by instruments produced by the Member States at EU level or within the EU framework, such as Article 28 of the Charter of Fundamental Rights of the European Union, which is given the same legal value as the Treaties by Article 6 TEU. (7)

24. The exercise of the fundamental right of collective bargaining must nevertheless be reconciled with the requirements stemming from the freedoms which are protected by the Treaty on the Functioning of the European Union, and must comply the principle of proportionality. (8)

25. Accordingly, the provisions of collective agreements are not outside the scope of the provisions of the Treaty which relate to the free movement of persons. The rights arising from the provisions of the Treaty in relation to the free movement of goods, persons, services and capital must be weighed against the objectives pursued by social policy. (9)

26. As a second preliminary point, it should be noted that the French legislation has been amended since the present requests for preliminary rulings were lodged.

27. Indeed, by decision of 13 June 2013, (10) the French Constitutional Council (Conseil constitutionnel), dealing with a request to review the constitutionality of the provisions of a law entitled ‘Law on greater security of employment’, (11) declared to be unconstitutional the provisions of the first and second paragraphs of Article L. 912-1 of the Social Security Code, relating to compulsory affiliation, by undertakings within the scope of certain agreements, to a scheme for supplementary reimbursement of healthcare costs, managed by a designated body.

28. In accordance with the decision of the Constitutional Council, the declaration that Article L. 912-1 was unconstitutional took effect on the date of publication of that decision, namely 16 June 2013, but does not apply to contracts which had been entered into pursuant to that Article and were in the course of performance at that time.

29. Subsequently, Article L. 912-1 of the Social Security Code was amended by Law No 2013-1203 of 23 December 2013. (12) It now provides that occupational agreements can make arrangements for insurance cover for the risks concerned, by recommending one or more organisations which are authorised to act as insuring bodies. Under paragraph 1 of that article, ‘such a recommendation must be preceded by a competitive tendering procedure involving the bodies or institutions concerned, conducted under conditions of transparency, fairness and equal treatment of candidates , and in accordance with detailed rules laid down by decree’. (13)

30. The orders for reference must, however, be analysed in light of the legislation which was applicable before that amendment.

31. I will begin my analysis by considering whether Article 56 TFEU is relevant to the main proceedings. It will then be appropriate, in order to assess whether it was necessary, in the present case, to comply with the requirements of transparency which, according to settled case-law, arise from Article 56 TFEU, to examine whether the management of the schemes at issue in the main proceedings is of certain cross-border interest, and to consider the case-law of the Court in relation to service concession contracts. I will conclude my analysis by examining whether the interpretation of Article 56 TFEU, developed largely in the case-law relating to service concession contracts and concerning the obligation of transparency, can be applied to the circumstances of the main proceedings. Lastly, it will be necessary to express my opinion on the request to limit the temporal effect of the judgment to be given the Court.

B – The applicability of Article 56 TFEU in the present case

32. It is necessary first of all to decide whether the cases in the main proceedings do in fact fall within the ambit of the freedom to provide services. At the hearing, SNRT and the Confédération nationale de la boulangerie et boulangerie-pâtisserie française argued that only institutions which have obtained authorisation from the French Government and are established in France can operate in the field of social security. (14)

33. In this regard, I think it is useful to point out that the supplemental social insurance schemes at issue in the main proceedings can be managed not only by provident societies, but also by undertakings governed by the Insurance Code.

34. Since the expiry of the period for transposition of Directive 92/49, (15) the third non-life insurance directive, the taking-up and pursuit of the business of insurance has been subject to a single administrative authorisation, granted by the authorities of the Member State where the insurance undertaking is established. This authorisation enables the undertaking to pursue its business throughout the European Union, either under the freedom of establishment or under the freedom to provide services. It should be noted that, in accordance with Article L. 362-2 of the Insurance Code, any EU insurance undertaking established in a Member State other than the French Republic may insure risks, or enter into commitments, on French territory from its place of establishment, under the freedom to provide services, in accordance with authorisations granted to it by the supervising authorities of its own Member State.

35. The insurance schemes to which the main proceedings relate supplement social security, and are therefore outside the statutory social security scheme. I should add, however, that it is clear from Commission v Belgium that although, in principle, Directive 92/49 does not concern insurance provided under a statutory social security scheme, it does apply to insurance forming part of such a scheme which is offered by insurance undertakings at their own risk. (16)

36. Accordingly, having regard to that directive, to the national legislation and to Commission v Belgium , it seems to me that insurance undertakings which are established in other Member States, and which have obtained authorisation in those Member States, should be able to offer their services in France, in accordance with the freedom to provide services, in connection with the management of supplementary schemes for the reimbursement of healthcare costs, such as those at issue in the main proceedings.

37. I should add, however, that if such services could not be offered on a cross-border basis, the issue of the implications which the obligation of transparency has for the selection of the insuring body would in any event remain relevant, in relation to the freedom of establishment.

38. Lastly, I note that in citing Article 56 TFEU, the referring court starts from the premiss that the grant of exclusive rights such as those at issue in the main proceedings constitutes a restriction on the freedom to provide services, and that such a restriction can be justified. Since the question referred does not concern the assessment of whether such a restriction exists or whether it is justified, and since there has been no argument as to those issues, I will not address them any further.

39. Before examining in greater detail the way in which Article 56 TFEU has been interpreted by the Court as regards the delineation of the obligation of transparency, and before considering whether that interpretation can be applied to the circumstances of the main proceedings, I should examine whether the activity at issue in the main proceedings presents certain cross-border interest. This, in any event, is a prior condition of the obligation of transparency, as developed through the case-law of the Court.

C – Whether the management of a supplementary social security scheme such as those at issue in the main proceedings is of cross-border interest

40. I begin by observing that the referring court has made no mention of the concept of ‘certain cross-border interest’ in the orders for reference. At the hearing UNIS and Beaudout indicated that the issue had not been expressly discussed before the Conseil D’État either. However, the fact that the referring court has not made any prior findings as to the existence of certain cross-border interest does not render the request for a preliminary ruling inadmissible if, in spite of that deficiency and in light of the material on the file, the Court considers that it is able to provide a response which is of assistance to the referring court. The Court’s response will nevertheless be subject to the proviso that the referring court, on the basis of a detailed assessment of all the relevant material concerning the main proceedings, finds there to be certain cross-border interest in those proceedings. (17)

41. It seems to me that the question referred is posed on the basis that the management of the schemes at issue in the main proceedings is of certain cross-border interest. I therefore consider that the question should be examined.

42. The parties which have submitted written observations differ as to whether the activity of managing a supplementary insurance scheme, such as those at issue in the main proceedings, is of certain cross-border interest.

43. According to Beaudout and the Commission, the management of such schemes is of cross-border interest. The Commission asserts that an undertaking in another Member State can offer such a service without encountering any particular difficulty. Beaudout also refers, in Case C‑26/14, to the value of the management contract concerned, which it puts at EUR 70 million. (18)

44. By contrast, the other parties to submit written observations, except for the French Government, maintain that this type of contract is of no interest to economic operators situated in other Member States. Amongst the reasons advanced in this regard were the economic characteristics of insurance markets (19) and the close relationship that has to be maintained with the social security administration, as well as with the employers and employees concerned. Furthermore, the links that the selected provident society has to maintain with the social partners, which are jointly responsible for its supervision, are such that no entity established in another Member State can take the place of such an institution.

45. The existence of a cross-border interest has been considered in the case-law relating to public contracts which, in view of their value, are not subject to the procedures laid down by directives in that field, and in the case-law relating to service concession contracts.

46. Thus, in SECAP and Santorso , (20) the Court held that whether a given contract was of cross-border interest had to be assessed by reference to its particular characteristics. A works contract could, for example, be of such cross-border interest because of its estimated value in conjunction with its technical complexity or the fact that the works were to be located in a place which is likely to attract the interest of foreign operators. Objective criteria indicating certain cross-border interest can include the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out. The possibility of such an interest may also be excluded in a case, for example, where the economic interest at stake in the contract in question is very modest.

47. According to Belgacom (21) certain cross-border interest may result, inter alia, from the financial value of the proposed agreement, its place of performance, or its technical characteristics, and it is the referring court that must carry out a detailed assessment of all the relevant facts in that regard.

48. Certain cross-border interest may exist whether or not an economic operator has actually shown an interest. This is particularly so where the dispute relates to a lack of transparency surrounding the agreement in question. In such a case, economic operators established in other Member States have no real opportunity to show their interest in obtaining the concession. (22)

49. In relation to the economic interests at stake in the activities in question, it is apparent from the French Government’s observations that the national collective agreement for traditional bakery and pastry-making undertakings covers 117 476 employees in that sector. (23) The national collective agreement for real estate provides the 142 800 employees of that sector with a wider range of benefits than the national collective agreement for traditional bakery and pastry-making undertakings. Accordingly, it does not seem to me that the economic interests at stake in the management of these schemes can be described as modest.

50. Undoubtedly, there are some characteristics of the area of supplementary social insurance which might suggest that this was essentially a national market. (24)

51. However, in my view it is possible that the management of a supplementary social insurance scheme such as those at issue in the main proceedings is of certain cross-border interest, in view in particular of the economic interests involved in such schemes. In any event, the need for a local presence and the linguistic requirements would not be insurmountable obstacles for undertakings established in other Member States, at least in neighbouring Member States. (25)

52. It is for the referring court to carry out a detailed assessment of all the relevant facts concerning the market at issue so as to verify that it is of certain cross-border interest. (26)

53. On the assumption that certain cross-border interest does exist, I should now go on to examine the obligation of transparency, as developed in the case-law of the Court, and its applicability in the present case, in order to assist the referring court in determining the matters before it.

D – The obligation of transparency under the case-law relating to service concession contracts

54. The judgment in Sporting Exchange , which has been cited by both the referring court and the parties that submitted written observations, followed on from a line of case-law of the Court relating to service concession contracts. In Sporting Exchange itself, which did not relate to a service concession, the Court extended its case-law on service concession contracts to the grant of an exclusive right, holding that the obligation of transparency was a mandatory prior condition of the right of a Member State to award to an operator the exclusive right to carry on an economic activity, irrespective of the method of selecting that operator. (27) To determine the scope of the obligation of transparency established by the case-law, it is thus appropriate to analyse the case-law relating to service concession contracts.

55. Service concession contracts are not currently governed by any of the directives by which the EU legislature has regulated the field of public procurement. (28) However, public authorities concluding such contracts are bound to comply with the fundamental rules of the FEU Treaty in general, including Article 56 TFEU, and, in particular, the principles of equal treatment and of non-discrimination on the ground of nationality, and the consequent obligation of transparency. (29)

56. I note, first of all, that the obligation of transparency, as developed through the case-law of the Court regarding service concessions, is an obligation imposed on the public authorities of Member States concluding a service concession contract. (30) That obligation of transparency applies where the service concession in question may be of interest to an undertaking located in a Member State other than that in which the concession is awarded. (31)

57. As regards the objectives of the obligation of transparency, it is clear from the Court’s case-law that Article 56 TFEU and the principles of equal treatment and non-discrimination on grounds of nationality, as well as the consequent obligation of transparency, pursue the same objectives as Directive 92/50/EEC (32) on public supply contracts, in particular the free movement of services and their opening up to undistorted competition in the Member States. (33) Accordingly, in examining the objectives of the obligation of transparency, it may be useful, by analogy, to examine those of Directive 92/50.

58. According to the case-law of the Court, the aim of that directive is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones. (34) The obligation of transparency pursues the same objectives with regard, in particular, to the grant of service concessions or exclusive rights.

59. The obligation of transparency thus permits the concession-granting public authority to satisfy itself that the principles of equal treatment and non-discrimination on grounds of nationality are being observed. It is for that public authority to evaluate, subject to review by the courts having jurisdiction, the appropriateness of the detailed arrangements of the call for competition to the particularities of the public service concession in question. (35)

60. Without necessarily implying an obligation to call for tenders, the obligation of transparency requires the concession-granting authority to ensure, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed. (36)

61. It is clear from the judgments in Parking Brixen and Commission v Italy that the total lack of any competitive procurement procedure in connection with the award of a service concession, such as those at issue in those two cases, did not comply with Article 49 TFEU or Article 56 TFEU, and, in particular, infringed the general principle of transparency as well as the obligation to ensure a sufficient degree of advertising. (37)

62. In the Sporting Exchange judgment, the Court held, in relation to a licence to operate games of chance issued to a single operator, that the fact that the issue of such a licence was not the same as a service concession contract did not, in itself, justify any failure to have regard to the requirements arising from Article 56 TFEU, in particular the principle of equal treatment and the obligation of transparency, when granting an administrative licence such as that at issue in the main proceedings. The Court indicated that the obligation should apply in the context of a system whereby the authorities of a Member State, by virtue of their public order powers, grant a licence to a single operator, because the effects of such a licence on undertakings established in other Member States and potentially interested in that activity are the same as those of a service concession contract. (38)

63. This interpretation concerning exclusive rights was confirmed in Belgacom , in relation to a service concession. The Court ruled that an economic operator in a Member State may, before the courts of that Member State, allege an infringement of the obligation of transparency arising from Article 56 TFEU occurring at the time of conclusion of an agreement whereby one or more public entities of that Member State have either granted to an economic operator of that same Member State a service concession of certain cross-border interest or granted an economic operator the exclusive right to engage in an economic activity of cross-border interest . (39)

64. In AG2R Prévoyance , the Court held that, inasmuch as AG2R had to be regarded as an undertaking engaged in an economic activity, a decision by the public authorities to make affiliation to a scheme for supplementary reimbursement of healthcare costs compulsory for all undertakings in a particular sector, without possibility of exemption, necessarily implied a grant to that body of an exclusive right to receive and manage the contributions paid by the employers and employees in that sector under that scheme. (40)

65. It follows that the effects of such an exclusive right on undertakings established in other Member States which might be interested in pursuing that activity can be assimilated to those of a service concession contract. It is therefore appropriate to go on to consider the other conditions for the applicability of the obligation of transparency.

E – The applicability of the obligation of transparency to the extension procedure

66. According to UNIS, Beaudout, the French Government and the Commission, the effect of the judgment in Sporting Exchange (41) is that the obligation of transparency arising from Article 56 TFEU must be complied with when an exclusive right is granted to an economic operator through the procedure for extending collective agreements.

67. The other parties which have submitted written observations maintain that the interpretation of Article 56 TFEU adopted in the Sporting Exchange judgment cannot be transposed to the circumstances of the main proceedings, and that the obligation of transparency is therefore inapplicable. First of all, those parties maintain that, unlike the situation considered in Sporting Exchange , and unlike that arising in the context of public procurement and service concessions, the insuring body is not selected by decision of a public authority, but by an agreement reached between the social partners in the context of collective bargaining. The Minister who is competent to extend a collective agreement appointing an insuring body does not take part in the selection of that body, and has no power in relation to that selection under the extension procedure.

68. I reiterate that the obligation of transparency, as developed in the case-law of the Court regarding service concessions, is an obligation imposed on the public authorities of Member States concluding a service concession contract (42) and that it does not necessarily imply an obligation to launch a call for tenders. The transparency requirements are such as to ensure that an undertaking located in the territory of a Member State other than that of the recipient of the service can have access to appropriate information regarding that concession before it is awarded , so that, if that undertaking had so wished, it would have been in a position to express its interest in obtaining that concession. (43)

69. As I have already indicated, in point 22 of this Opinion, the Conseil d’État’s question relates to the procedure by which a Member State extends a collective agreement to all undertakings in a particular sector. This necessarily implies the grant of an exclusive right to the body selected by the social partners.

70. It would seem consistent with the case-law referred to above to interpret Article 56 TFEU as precluding the grant of an exclusive right by the public authorities of the Member State to an economic operator selected in the context of a procedure which is completely opaque, regardless of the method of selection.

71. Where the operator is selected by a party other than the public authority which grants the exclusive right in question, and where the public authority is bound by that selection, made at the conclusion of a procedure which was not conducted by the authority concerned, the obligation of transparency must be complied with in that prior selection procedure. In default, the requirements arising from Article 56 TFEU will not be satisfied, since undertakings situated in other Member States will not have been in a position to express their interest before the managing body was selected. In such a case, the fact that the procedure for extension of the collective agreement within the Ministry is transparent, as the French Government asserts, does not justify the opaque nature of the procedure by which the provident society was selected.

72. This conclusion does not mean that the obligation of transparency, as such, applies to the social partners, who remain free to exercise their right of collective bargaining. (44) It implies only that a minimum level of transparency must be attained in the preliminary procedure, if the collective agreement is later to be extended to the entire sector by the public authorities.

73. It should also be emphasised that the objectivity of the selection of the insuring body is not sufficient in itself to guarantee that the requirements arising from Article 56 TFEU are met. An opaque selection procedure, even if objective, does not provide interested undertakings with access to appropriate information, or put them in a position to express their interest before the selection is made. The requirement for a minimum level of transparency enables interested parties to familiarise themselves with the selection criteria and evaluate their objectivity, as well as the impartiality of the selection.

74. I note that French legislation in this field has recently been amended so as to introduce a competitive procurement procedure, conducted by the social partners, at the stage when the insuring body is selected. In light of that it seems that a more transparent approach may also be possible with regard to the prior selection procedure and that, a contrario , a limitation of the transparency of the selection procedure is not necessary in order to protect the general interests at stake.

F – Was the obligation of transparency complied with in the present case?

75. According to the written observations of the French Government, under Article L. 2261-19 of the Labour Code, a sectoral agreement, occupational or inter-occupational agreement, or indeed an addendum to such a document, can be extended only if it was negotiated and concluded by a joint commission. Such commissions are made up of the social partners of the sector in question, or in other words the representative organisations of employers and employees in the field to which the collective agreement relates.

76. During this collective bargaining phase, it would be possible for an insurance body to put itself forward to the social partners of the sector in question as a candidate for the management of the supplementary social insurance scheme for that sector. In this regard, the French Government emphasises that collective agreements are accessible on the Internet and that interested undertakings can easily follow the timing of renegotiations concerning the management of supplementary social security schemes.

77. In my view, it is not impossible that this national practice may go some way to avoiding the risks that the obligation of transparency is designed to protect against, and, in particular, that it enables interested undertakings to obtain access to the necessary information and to express their interest before the body is selected. I have serious doubts about this, however.

78. In this regard, it is also necessary to decide whether the obligation of transparency demands that legislation is in place ensuring that the requirements of transparency are met, or whether, as the French Government argues, it is sufficient that actual transparency is effectively ensured, even in the absence of express rules, through the availability of a certain amount of information and the publication of data.

79. The case-law of the Court does not seem to me to require that transparency is ensured by legislation, if a sufficient degree of transparency is ensured by other means.

80. I should add that, although there was argument at the hearing as to the eff ects of the supervisory function exercised by the social partners over their selected insuring body, in my view that is irrelevant to any potential justification of the use of an opaque selection procedure. It is true that, in accordance with previous case-law, (45) close supervision of the selected operator by a Member State may, in some situations, justify a lack of transparency in the selection phase. However, this applies where the public authorities are able to supervise the selected operator directly, whereas in the main proceedings it is the social partners who are able, to a certain extent, (46) to supervise the insuring bodies. In those circumstances the Member State does not supervise them, either directly or through the social partners.

81. Consequently, it is for the national court to assess, having regard to all of those matters, whether, in a context such as that of the main proceedings, the procedure for selecting the insurance bodies for the supplementary social security schemes in question was sufficiently transparent, from the point of view of the freedom to provide services, to justify the extensions effected by the ministerial orders at issue.

G – The request that the temporal effects of the judgment be limited

82. In its written observations, the French Government has asked that, in the event that the Court considers that the procedures at issue in the main proceedings do not comply with the obligation of transparency, the effect of its judgment should be limited in time, having regard to the risk of serious repercussions for the health of beneficiaries of the schemes extended by the ministerial orders (47) and the fact that those concerned have acted in good faith. At the hearing, Beaudout argued that this request should be rejected, while the Confédération nationale de la boulangerie et boulangerie-pâtisserie française asked for the temporal effects of the judgment to be limited.

83. It is only quite exceptionally that the Court may, applying the general principle of legal certainty inherent in the EU legal order, decide to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to challenging legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties. (48)

84. In my opinion, the matters advanced by the French Government do not satisfy those criteria. Annulment of the ministerial orders does not necessarily entail bringing to an end the various contractual relationships that exist in this case in the area of insurance. The effect of such annulment is uncertain, at least from the point of view of civil law, both as regards the employers and as regards those insured. That being so, the concrete effects of the judgment to be given by the Court will be a matter to be determined by national law.

V – Conclusion

85. In the light of the foregoing considerations, I propose that the Court should respond to the question referred for a preliminary ruling by the Conseil d’État (France) as follows:

Compliance with the obligation of transparency flowing from Article 56 TFEU is a mandatory prior condition for the extension, by a Member State, to all undertakings within a sector, of a collective agreement under which a single operator, chosen by the social partners, is entrusted with the management of a compulsory supplemental social insurance scheme for employees. It falls to the national court to determine whether, in a context such as that of the cases in the main proceedings, the procedure for selecting insurance bodies for the complementary social insurance schemes was sufficiently transparent, from the point of view of the freedom to provide services, to justify the extensions at issue.

(1) .

(2) – It should however be noted that the exclusive right at issue in the main proceedings is not a ‘natural’ or traditional exclusive right, in the sense of the well-established case-law relating, for instance, to the telecommunications market (see, in particular, British Telecommunications , C‑302/94, EU:C:1996:485, paragraph 27).

(3) – C‑437/09, EU:C:2011:112. In that case, the Court has already had occasion to consider whether an instrument making it compulsory to be a member of a scheme managed by a single organisation, without any possibility of exemption for undertakings in the sector concerned, complied with Articles 101 TFEU and 102 TFEU, and whether there was abuse of a dominant position. While those proceedings were ongoing, the Tribunal d’Instance de Dax (France) made three references for preliminary rulings to the Court, concerning the issue of whether that same instrument, part of the national collective agreement for traditional bakery and pastry-making undertakings, complied with Article 102 TFEU (Cases C‑97/10, C‑98/10 and C‑99/10). After judgment had been given in AG2R Prévoyance , the Tribunal d’Instance de Dax informed the Court that it did not intend to pursue its references for preliminary rulings. By order of 8 June 2011, the President of the Court removed them from the Court register.

(4) – Articles L. 911-1, L. 911-3 and L. 912-1 of the Social Security Code were originally intended to transpose, amongst other things, Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1) (see Law No 94-678 of 8 August 1994 on supplementary social security for employees, transposing Directives No 92-49 of 18 June 1992 and No 92-96 of 10 November 1992 of the Council of the European Communities; JORF of 10 August 1994, p. 11655). They were amended by ordinance No 2006-344 of 23 March 2006 (JORF of 24 March 2006, p. 4456, which entered into force on 24 June 2006).

(5) – JORF, 2 January 1990, p. 13.

(6) – C‑203/08, EU:C:2010:307.

(7) – See Commission v Germany (C‑271/08, EU:C:2010:426, paragraph 37).

(8) – Commission v Germany (C‑271/08, EU:C:2010:426, paragraphs 42 to 44 and the case-law cited).

(9) – International Transport Workers’ Federation and Finnish Seamen’s Union (C‑438/05, EU:C:2007:772, paragraphs 54 and 79).

(10) – Decision No 2013-672 DC of 13 June 2013.

(11) – This Law was promulgated after the decision of the Constitutional Council, on 14 June 2013 (JORF of 16 June 2013 p. 9958). According to that decision, the Constitutional Council can determine the constitutionality of the law which has already been promulgated when it examines legislative provisions amending it, supplementing it, or affecting the field it covers. The contested provisions of the Law on greater security of employment supplement Article L. 912-1 of the Social Security Code.

(12) – JORF of 24 December 2013, p. 21034.

(13) – My italics. Detailed rules regarding this competitive tendering procedure were laid down by Decree No 2015-13 of 8 January 2015 on the procedure for competitive tendering by organisations in the context of a recommendation under Article L. 912-1 of the Social Security Code (JORF of 10 January 2015, p. 450). The purpose of that decree is to lay down the applicable procedure, in order (amongst other things) to ensure that it is transparent.

(14) – SNRT refers to Article L. 931-4 of the Social Security Code, which concerns the administrative authorisation required by provident societies.

(15) – This directive was subsequently repealed by Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1).

(16) – C‑206/98, EU:C:2000:256, paragraph 44. The judgment in Commission v Belgium concerned compulsory insurance against accidents at work under the Belgian statutory social security scheme.

(17) – Serrantoni and Consorzio stabile edili (C‑376/08, EU:C:2009:808, paragraph 25) and Azienda sanitaria locale n. 5 ‘Spezzino’ and Others (C‑113/13, EU:C:2014:2440, paragraph 48).

(18) – Furthermore, at the hearing Beaudout indicated that in France there were already sectors in which foreign undertakings had shown an interest in managing such a scheme, and undertakings which had chosen a foreign insuring body to manage their supplementary schemes for the reimbursement of healthcare costs. UNIS did not address the issue of cross-border interest in its written observations, but at the hearing it asserted that there was cross-border interest. In addition, according to UNIS, French bodies are already offering their services in other Member States.

(19) – The Confédération nationale de la boulangerie et boulangerie-pâtisserie française referred to the Commission’s Sector Inquiry under Article 17 of Regulation (EC) No 1/2003 on business insurance (Final Report) (COM(2007) 556 final), available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0556). According to that report, with the exception of large customers and risks, primary insurance markets tend to be national in scope. The reasons given by the Commission include variations at national level in the general law of contract and the law relating to insurance and liability, the need for a local presence, and language issues. However, it is important to note that the Commission’s inquiry was ‘aimed at further investigating the sector and the practices concerned with a view to ultimately identifying any concrete restrictive practices or distortions of competition that may fall within the scope of Articles 81 or 82 of the Treaty’, which presupposes that there is a cross-border market in the sector concerned. Consequently, the Commission’s findings as to the current state of the insurance markets cannot be decisive in assessing whether there is cross-border interest.

(20) – C‑147/06 and C‑148/06, EU:C:2008:277, paragraphs 24 and 31.

(21) – C‑221/12, EU:C:2013:736, paragraphs 29 and 30.

(22) – Belgacom (C‑221/12, EU:C:2013:736, paragraph 31). However, a mere statement by the Commission, in proceedings for failure to fulfil obligations, that a complaint had been made to it in relation to the contract in question was not sufficient to establish that the contract was of certain cross-border interest and that there was therefore a failure to fulfil obligations ( Commission v Ireland , C‑507/03, EU:C:2007:676, paragraph 34).

(23) – As already indicated in point 43 of this Opinion, Beaudout puts the value of the management contract in question at EUR 70 million.

(24) – Nevertheless, even if the current market were essentially national, this would not necessarily indicate the absence of cross-border interest. According to the final report of an expert group formed by the Commission, differences in national contract legislation hinder cross-border provision of insurance products by giving rise to higher costs, legal uncertainty and difficulties on the part of consumers and undertakings in taking out insurance in other Member States of the EU (see the press release of 27 February 2014 on the final report (Final Report of the Commission Expert Group on European Insurance Contract Law); the report itself is available at http://ec.europa.eu/justice/contract/files/expert_groups/insurance/final_report_en.pdf). On that basis, the modest number of foreign insuring bodies present on a particular market does not show that such foreign bodies have no wish to enter the market.

(25) – I should also point out that, while the present case does not concern insurance which forms part of social security, the provisions of EU law on direct non-life insurance can, where relevant, apply to insurance forming part of a statutory social security scheme which is offered by insurance undertakings at their own risk ( Commission v Belgium , C‑206/98, EU:C:2000:256, paragraph 44).

(26) – Judgments in SECAP and Santorso (C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 34) and Serrantoni and Consorzio stabile edili (C‑376/08, EU:C:2009:808, paragraph 25).

(27) – C‑203/08, EU:C:2010:307, paragraph 47.

(28) – The legal framework of service concession contracts has been clarified in the Commission interpretative communication on concessions under Community law of 29 April 2000 (OJ 2000 C 121, p. 2). It should also be noted that on 26 February 2014, the European Parliament and the Council of the European Union adopted Directive 2014/23/EU on the award of concession contracts (OJ 2014 L 94, p. 1). The period for transposition of that directive expires on 18 April 2016.

(29) – Telaustria and Telefonadress (C‑324/98, EU:C:2000:669, paragraphs 60 and 61), Parking Brixen (C‑458/03, EU:C:2005:605, paragraph 46), Wall (C‑91/08, EU:C:2010:182, paragraph 33), and Sporting Exchange (C‑203/08, EU:C:2010:307, paragraph 39).

(30) – Telaustria and Telefonadress (C‑324/98, EU:C:2000:669, paragraph 62), Parking Brixen (C‑458/03, EU:C:2005:605, paragraphs 49 and 50), and Wall (C‑91/08, EU:C:2010:182, paragraph 36).

(31) – Coname (C‑231/03, EU:C:2005:487, paragraph 17), Wall (C‑91/08, EU:C:2010:182, paragraph 34), and Sporting Exchange (C‑203/08, EU:C:2010:307, paragraph 40).

(32) – Council Directive 92/50/EEC of 18 June 1992 coordinating procedures for the award of public supply contracts (OJ 1993 L 209, p. 1).

(33) – Wall (C‑91/08, EU:C:2010:182, paragraph 48).

(34) – Mannesmann Anlagenbau Austria and Others (C‑44/96, EU:C:1998:4, paragraph 33), BFI Holding (C‑360/96, EU:C:1998:525, paragraphs 42 and 43) and University of Cambridge (C‑380/98, EU:C:2000:529, paragraph 17).

(35) – Parking Brixen (C‑458/03, EU:C:2005:605, paragraphs 49 and 50).

(36) – Telaustria and Telefonadress (C‑324/98, EU:C:2000:669, paragraph 62), Parking Brixen (C‑458/03, EU:C:2005:605, paragraph 49), Commission v Italy (C‑260/04, EU:C:2007:508, paragraph 24), Wall (C‑91/08, EU:C:2010:182, paragraph 36), and Sporting Exchange (C‑203/08, EU:C:2010:307, paragraph 41).

(37) – Parking Brixen (C‑458/03, EU:C:2005:605, paragraph 50) and Commission v Italy (C‑260/04, EU:C:2007:508, paragraph 25).

(38) – Sporting Exchange (C‑203/08, EU:C:2010:307, paragraphs 46 and 47).

(39) – See Belgacom (C‑221/12, EU:C:2013:736, paragraph 34) (my italics).

(40) – C‑437/09, EU:C:2011:112, paragraph 66.

(41) – C‑203/08, EU:C:2010:307.

(42) – Telaustria and Telefonadress (C‑324/98, EU:C:2000:669, paragraph 62), Parking Brixen (C‑458/03, EU:C:2005:605, paragraphs 49 and 50), Wall (C‑91/08, EU:C:2010:182, paragraph 36).

(43) – Coname (C‑231/03, EU:C:2005:487, paragraph 21), Coditel Brabant (C‑324/07, EU:C:2008:621, paragraph 25) and Sporting Exchange (C‑203/08, EU:C:2010:307, paragraph 41) (my italics).

(44) – Pursuant to Article 28 of the Charter of Fundamental Rights of the European Union, in particular.

(45) – It is apparent from the case-law of the Court that restrictions on the fundamental freedom enshrined in Article 56 TFEU which arise specifically from procedures for the grant or renewal of a licence to a single operator may be regarded as justified if the Member State concerned decides to grant a licence to, or renew the licence of, a public operator whose management is subject to direct State supervision, or a private operator whose activities are subject to strict control by the public authorities ( Sporting Exchange , C‑203/08, EU:C:2010:307, paragraph 59).

(46) – It should be noted that the parties represented at the hearing diverged greatly on the issue of whether trade unions which had not signed a collective agreement are able to participate in the joint commission after the agreement is extended, and thus to supervise the insuring body.

(47) – As one of the grounds advanced in support of this request, it was asserted that the annulment of the extension orders, which would be the likely consequence of such a judgment at national level, would terminate the pooling of risks on which the schemes are based, and threaten both their financial equilibrium and the benefits they provide. Furthermore, in relation to the national collective agreement for real estate, the entry into force of the scheme in question was conditional on the publication of the order extending it to all undertakings, including those originally subscribing to the scheme.

(48) – Balazs and Casa Judeţeană de Pensii Cluj (C‑401/13 and C‑432/13, EU:C:2015:26, paragraph 50 and the case-law cited).