Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01

AOK Bundesverband and Others

v

Ichthyol-Gesellschaft Cordes, Hermani & Co. and Others

(References for a preliminary ruling from the Oberlandesgericht Düsseldorf and the Bundesgerichtshof)

(Competition – Undertakings – Sickness funds – Agreements, decisions and concerted practices – Interpretation of Articles 81 EC, 82 EC and 86 EC – Decisions of groups of sickness funds determining maximum amounts paid in respect of medicinal products)

Summary of the Judgment

Competition – Community rules – Undertaking – Concept – Group of sickness funds determining maximum amounts paid in respect of medicinal products – Not included – Conditions

(Art. 81 EC)

The concept of an undertaking in Community competition law does not cover bodies entrusted with the management of statutory health insurance and old-age insurance schemes which pursue an exclusively social objective and do not engage in economic activity. That is so in the case of sickness funds which, even if the legislature has granted them some latitude in setting the contribution rate, in order to promote sound management, are compelled by law to offer to their members essentially identical obligatory benefits which do not depend on the amount of the contributions. Since the sickness funds therefore have no possibility of influence over those benefits, and are joined together in a type of community founded on the basis of solidarity which enables an equalisation of costs and risks between them, they are not in competition with one another or with private institutions as regards grant of the obligatory statutory benefits in respect of treatment or medicinal products which constitute their main function.

When groups of those sickness funds determine, pursuant to an obligation imposed upon them by the legislature, fixed maximum amounts corresponding to the upper limit of the price of medicinal products whose cost is borne by sickness funds, they do not act as undertakings or associations of undertakings within the meaning of Article 81 EC, inasmuch as they do not pursue a specific interest separable from the exclusively social objective of the funds, but perform an obligation which is integrally connected with the activity of the funds within the framework of the statutory health insurance scheme.

(see paras 47, 52-54, 56-57, 63-65, operative part)

JUDGMENT OF THE COURT 16 March 2004 (1)

(Competition – Undertakings – Sickness funds – Agreements, decisions and concerted practices – Interpretation of Articles 81 EC, 82 EC and 86 EC – Decisions of groups of sickness funds determining maximum amounts paid in respect of medicinal products)

In Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01,

REFERENCES to the Court under Article 234 EC by the Oberlandesgericht Düsseldorf (Germany) and by the Bundesgerichtshof (Germany) for preliminary rulings in the proceedings pending before those courts between

and

on the interpretation of Articles 81 EC, 82 EC and 86 EC,

THE COURT,,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and A. Rosas (Presidents of Chambers), J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

after considering the written observations submitted on behalf of:

after hearing the oral observations of the AOK Bundesverband, the Bundesverband der Betriebskrankenkassen (BKK), the Bundesverband der Innungskrankenkassen, the Bundesverband der landwirtschaftlichen Krankenkassen, the Verband der Angestelltenkrankenkassen eV, the Verband der Arbeiter-Ersatzkassen, the Bundesknappschaft and the See-Krankenkasse, represented by C. Quack (C-264/01 and C-306/01) and A. von Winterfeld (C-354/01 and C-355/01); Ichthyol-Gesellschaft Cordes, Hermani & Co. and Mundipharma GmbH, represented by U. Doepner; Gödecke GmbH and Intersan, Institut für pharmazeutische und klinische Forschung GmbH, represented by U. Reese; the German Government, represented by W.-D. Plessing, acting as Agent; and the Commission, represented by S. Rating, at the hearing on 14 January 2003,

after hearing the Opinion of the Advocate General at the sitting on 22 May 2003,

gives the following

On those grounds,

THE COURT,

in answer to the questions referred to it by the Oberlandesgericht Düsseldorf by orders of 18 May 2001 and 11 July 2001 and the Bundesgerichtshof by orders of 3 July 2001, hereby rules:

Skouris

Jann

Timmermans

Gulmann

Cunha Rodrigues

Rosas

Puissochet

Schintgen

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 16 March 2004.

R. Grass

V. Skouris

Registrar

President