Albany International BV contra Stichting Bedrijfspensioenfonds Textielindustrie.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Moitinho de Almeida
• ECLI: ECLI:EU:C:1999:28
• Date: 28 January 1999
• Docket Number: C-67/96
• Procedure Type: Reference for a preliminary ruling
• Celex Number: 61996CC0067

61996C0067

Joined opinion of Mr Advocate General Jacobs delivered on 28 January 1999. - Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie. - Reference for a preliminary ruling: Kantongerecht Arnhem - Netherlands. - Case C-67/96. - Brentjens' Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen. - Reference for a preliminary ruling: Kantongerecht Roermond - Netherlands. - Joined cases C-115/97 to C-117/97. - Maatschappij Drijvende Bokken BV v Stichting Pensioenfonds voor de Vervoer- en Havenbedrijven. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Case C-219/97. - Compulsory affiliation to a sectoral pension scheme - Compatibility with competition rules - Classification of a sectoral pension fund as an undertaking.

European Court reports 1999 Page I-05751

Opinion of the Advocate-General

I - Introduction

1 In the present cases, referred to the Court by the Netherlands Hoge Raad, the Kantongerecht (Cantonal Court) Roermond and the Kantongerecht Arnhem, the Court is asked to give a ruling on a number of questions concerning the compatibility of a system of compulsory affiliation to sectoral pension funds with the competition rules of the Treaty. Those questions arise in the context of proceedings brought by three undertakings challenging orders issued by sectoral pension funds demanding payment of the contributions to their respective schemes.

2 The cases raise several issues of general importance which have to be addressed before the more specific substantive questions can be considered. At issue in all three cases is whether a national system in which, at the request of the representatives of employers and employees in a particular sector of the economy, affiliation to a sectoral pension fund is made compulsory for all undertakings in that sector infringes either Article 5 of the Treaty in conjunction with Article 85 or Article 90(1) of the Treaty in conjunction with Article 86. The cases also raise the issue, in the context of Articles 5 and 85 of the Treaty, whether a collective agreement between employers and employees within a particular sector setting up a sectoral pension scheme falls under Article 85(1) of the Treaty. The Court is thus called upon for the first time to give a ruling on the relationship between the competition rules of the Treaty and agreements reached by collective bargaining between the two sides of industry. A further issue, relevant to the application of Articles 90(1) and 86 of the Treaty, is whether the Netherlands sectoral pension funds operating in the framework of the rules requiring compulsory affiliation to a sectoral pension fund constitute undertakings for the purposes of the competition rules of the Treaty.

II - The national law background

3 It appears that the system of pensions in the Netherlands is based on three pillars:

- First a statutory basic pension, granted by the State under the Algemene Ouderdomswet (1) (General law on old age pensions, `the AOW') and the Algemene Nabestaandenwet (General law on survivors' benefits), provides the whole population with a flat-rate benefit which is a certain percentage of the minimum wage. The benefit is reduced for any year in which an individual has not been insured. Participation is compulsory.

- Secondly, in most cases the basic pension is topped up by supplementary pensions provided in the context of employment or self-employed activity. Those supplementary pensions are normally managed by collective schemes covering a sector of industry, a profession or the employees of an undertaking.

- Finally, there is the possibility of concluding individual pension or life insurance contracts on a voluntary basis.

4 The present cases are all concerned with second pillar sectoral pension schemes granting supplementary pensions to employees. In that respect they are different from the supplementary pension scheme at issue in Van Schijndel (2) which granted pensions to members of a profession.

5 Under Netherlands law employers are in principle free to decide whether or not to offer supplementary pensions to their employees. If they want to do so they can set up a company pension scheme either in the form of a company pension fund or through a group pension insurance contract with an insurance company. They can also set up a sectoral pension scheme together with other employers or join an existing sectoral scheme.

6 However, in practice employers are often obliged to affiliate their employees to a compulsory sectoral pension fund. Those funds are set up by collective agreement between management and labour in a particular sector of industry. The State then makes affiliation to the scheme offered by those funds compulsory.

7 The first set of rules applicable to such schemes is the Wet betreffende verplichte deelneming in een bedrijfspensioenfonds of 17 March 1949 (3) (Law on compulsory affiliation to a sectoral pension fund, the `BPW', as amended on several occasions).

8 The central rule is Article 3(1). It empowers the Minister for Social Affairs, at the request of a group of employers' associations and trade unions deemed by him to be sufficiently representative, to issue a decree requiring all groups of persons belonging to a given sector of the economy to be affiliated to a sectoral pension fund. In the absence of a specific request the Minister has no such power. Before taking his decision the competent Minister has to consult inter alia the Sociaal-Economische Raad (Social and Economic Council) and the Verzekeringskamer (Insurance Board), which supervises insurance and pension funds.

9 By virtue of Article 3(2) of the BPW all persons falling under the decree, together with their employers, have to abide by the rules of the relevant sectoral pension fund. The obligations resulting from those rules, including the obligation to pay the contributions, are legally enforceable. Article 18 empowers the pension fund to issue an enforceable order for recovery of unpaid premiums.

10 In the parliamentary proceedings leading to the adoption of the BPW the Government gave the following explanation of the objectives of the rules on compulsory affiliation: (4)

`... The present Bill is intended to lay down rules in the field of pension arrangements for individuals which are similar to those contained in the Wet op het Algemeen Verbindend Verklaren van Bepalingen van Collectieve Arbeidsovereenkomsten (Law on declaring provisions of collective employment agreements generally binding) with regard to conditions of employment. It seeks therefore to avoid the possibility of some employers in the sector gaining an advantage over other employers in the same sector by not granting pensions ...'

The then Minister for Social Affairs stated: (5)

`... occupational pension insurance of the type aimed at by this Bill is particularly expedient since it is based on the concept of collective insurance, that is to say, the notion that the members of an industrial sector, primarily employers and employees ..., should collectively assume responsibility for collecting the necessary funds with a view to ensuring that all persons who have completed a sufficient number of years of employment in that sector and have attained a certain age can obtain the benefits which they need. Where this is done on an individual basis - as it is in certain cases - and matters are left at that, the consequence is that those finding themselves in the most favourable circumstances are able to provide for themselves with relative ease, by contrast with those who are less favourably placed.'

11 According to Article 5(2) of the BPW a number of requirements must be fulfilled before the Minister can make affiliation compulsory. For example under Article 5(2), subparagraph IV, the representatives of the employers and the workers have to sit in equal numbers on the management board and under subparagraph V the pension fund must have legal personality.

12 Article 5(2), subparagraph II, specifies a number of issues that have to be dealt with by the statutes and regulations of the pension fund. More specifically, by virtue of Article 5(2), subparagraph II, letter l), the statutes and regulations of the fund have to provide for the possibility of exemption from compulsory affiliation in certain circumstances or at least from certain obligations resulting from affiliation.

13 Article 5(3) empowers the Minister for Social Affairs to adopt `richtlijnen' (guidelines) concerning exemption from compulsory affiliation. Pursuant to that provision the competent Minister issued the Beschikking van 29 december 1952 betreffende de vaststelling van de richtlijnen voor de vrijstelling van deelneming in een bedrijfspensioenfonds wegen een bijzondere pensionsvoorziening (Decree of 29 December 1952 relating to the adoption of the guidelines on the exemption from participation in a sectoral pension fund in case of special pension arrangements, `the exemption guidelines' or `the guidelines', since amended on several occasions). (6)

14 By virtue of Article 1 of those guidelines, in the version applicable to the facts of the main proceedings, it is the sectoral pension fund itself which grants exemptions. Exemptions have to be requested either by an employee on an individual basis or, as in the main proceedings, by an employer for all his employees.

15 Under Article 1 the fund has a discretion to grant an exemption from the obligation to participate where the participant firm has its own pension arrangements and where the conditions specified in Article 1(a) to (d) of the guidelines are met. Article 1(a) enumerates the kinds of alternative pension arrangements which are accepted, namely a company pension fund, a different sectoral pension fund or a group insurance agreement with a private...