British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2008:29
• Court: General Court (European Union)
• Docket Number: T-289/03
• Date: 12 February 2008
• Procedure Type: Recours en annulation - irrecevable
• Celex Number: 62003TJ0289

Case T-289/03

British United Provident Association Ltd (BUPA) and Others

v

Commission of the European Communities

(State aid – Risk equalisation scheme introduced by Ireland on the private medical insurance market – Aid system – Services of general economic interest – Article 86(2) EC – Commission decision not to raise objections – Action for annulment – Admissibility – Principles of necessity and proportionality)

Summary of the Judgment

1. Preliminary rulings – Interpretation – Temporal effects of judgments by way of interpretation

(Arts 86(2) EC, 87(1) EC, 231 EC and 234 EC)

2. Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest – Member States’ discretion

(Arts 5 EC, 16 EC, 86(2) EC and 87(1) EC; Commission communication 2001/C 17/04, point 22)

3. Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest – Interpretation of the criterion of general interest

(Arts 86(1) and (2) EC and 87(1) EC; Commission communication 2001/C 17/04, points 14 and 15)

4. Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest – Universal and compulsory nature

(Arts 86(2) EC and 87(1) EC; Commission communication 2001/C 17/04, points 14 and 15)

5. Competition – Undertakings entrusted with the operation of services of general economic interest – Compensation for the costs generated by the public service mission – Member States’ discretion

(Arts 86(2) EC and 87(1) EC)

6. Competition – Undertakings entrusted with the operation of services of general economic interest – Compensation for the costs generated by the public service mission

(Arts 86(2) EC and 87(1) EC)

7. State aid – Commission decision adopted pursuant to Article 87 EC in conjunction with Article 86(2) EC

(Arts 86(2) EC and 87(1) EC)

8. State aid – Examination by the Commission – System of aid intended to ensure the provision of a mission of general economic interest

(Arts 86(2) EC and 87(1) EC)

9. Actions for annulment – Pleas in law – Pleas that may be raised against a Commission decision on State aid

(Arts 86 EC, 87 EC, 88 EC, 226 EC and 230 EC)

10. State aid – Examination by the Commission – Preliminary stage and inter partes stage

(Art. 88(2) and (3) EC; Council Regulation No 659/1999, Arts 4(4) and 13(1))

1. The interpretation which the Court of Justice gives, on a reference for a preliminary ruling, of a provision of Community law is limited to clarifying and defining the meaning and scope of that provision as it ought to have been understood and applied from the time of its entry into force. It follows that the provision as thus interpreted may, and must, be applied even to legal relationships which arose and were established before the judgment in question and it is only exceptionally that, in application of a general principle of legal certainty which is inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision, which it has interpreted, with a view to calling in question legal relationships established in good faith. However, such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought. Those considerations, which derive from case-law dealing, in particular, with the national courts’ duty to apply Community law, apply mutatis mutandis to the Community institutions when they, in turn, are required to implement the provisions of Community law which are subsequently interpreted by the Court of Justice.

It follows that, since the Court of Justice did not place any temporal limitation on the scope of its judgment of 24 July 2003 in Case C‑280/00 Altmark, the criteria for the interpretation of Article 87(1) EC laid down in that judgment, the scope of which to a large extent overlaps that of the criteria of Article 86(2) EC, are fully applicable, in accordance with the spirit and the purpose which prevailed when they were laid down, in a manner adapted to the particular facts of the present case, for the purpose of adjudicating on the validity of a Commission decision adopted before delivery of that judgment and declaring that a State measure necessary for the protection of a mission of general economic interest could not be characterised as State aid.

(see paras 158-160)

2. Member States have a wide discretion to define what they regard as services of general economic interest. That prerogative is confirmed by the absence of any competence specially attributed to the Community and by the absence of a precise and complete definition of the concept of service of general economic interest in Community law. The determination of the nature and scope of a mission involving the provision of a service of general economic interest in specific spheres of action which either do not fall within the powers of the Community, within the meaning of the first paragraph of Article 5 EC, or are based on only limited or shared Community competence, within the meaning of the second paragraph of that article, remains, in principle, within the competence of the Member States. That division of powers is also reflected, generally, in Article 16 EC, which provides that, given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion in the Union, the Community and the Member States, each within their respective powers and within the scope of application of the Treaty, are to take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions. The Member State’s power to define services of general economic interest is not, however, unlimited and cannot be exercised arbitrarily for the sole purpose of removing a particular sector from the application of the competition rules.

Consequently, the control which the Community institutions are authorised to exercise over the use of the discretion of the Member State in determining a service of general economic interest is limited to ascertaining whether there is a manifest error of assessment.

Even though the Member State has a wide discretion when determining what it regards as services of general economic interest, that does not mean that it is not required, when it relies on the existence of and the need to protect a mission involving the provision of a service of general economic interest, to ensure that that mission satisfies certain minimum criteria common to every mission involving the provision of a service of general economic interest within the meaning of the Treaty, and to demonstrate that those criteria are indeed satisfied in the particular case. These are, notably, the presence of an act of the public authority entrusting the operators in question with such a mission and the universal and compulsory nature of that mission. Conversely, the lack of proof by the Member State that those criteria are satisfied, or failure on its part to observe them, may constitute a manifest error of assessment, in which case the Commission is required to make a finding to that effect, failing which the Commission itself makes a manifest error. Furthermore, the Member State must indicate the reasons why it considers that the service in question, because of its specific nature, deserves to be characterised as a service of general economic interest and to be distinguished from other economic activities. In the absence of such reasons, even a marginal review by the Community institutions with respect to the existence of a manifest error by the Member State in the context of its discretion would not be possible.

(see paras 166-169, 172)

3. The provision of a service of general economic interest must, by definition, assume a general or public interest. Thus, services of general economic interest are distinguished in particular from services in the private interest, even though that interest may be more or less collective or be recognised by the State as legitimate or beneficial. In addition, the general or public interest must not be reduced to the need to subject the market concerned to certain rules or the commercial activity of the operators concerned to authorisation by the State. The mere fact that the national legislature, acting in the general interest in the broad sense, imposes certain rules of authorisation, of functioning or of control on all the operators in a particular sector does not in principle mean that there is a mission involving the provision of a service of general economic interest.

On the other hand, the recognition of a mission involving the provision of a service of general economic interest does not necessarily presume that the operator entrusted with that mission will be given an exclusive or special right to carry it out. It follows from a reading of paragraph 1 together with paragraph 2 of Article 86 EC that a distinction must be drawn between a special or exclusive right conferred on an operator and the mission involving the provision of a service of general economic interest which, where appropriate, is attached to that right. The grant of a special or exclusive right to an operator is merely the instrument, possibly justified, which allows that operator to perform a mission involving the provision of a service of general economic interest. Therefore, the Commission’s finding, based on paragraphs 14 and 15 of the Commission communication on services of general interest, that the attribution of a mission involving the provision of a service of general economic interest may also consist in an obligation imposed on a large number of, or indeed on all, the operators active on the same market, is not vitiated by an error. In that case, there can...