On 3 March 2011, the European Court of Justice (CJEU) handed down its judgment on a reference from a French district court asking whether a compulsory healthcare scheme in the French bakery sector was subject to competition law.
The CJEU concluded that Article 101 of the TFEU which prohibits undertakings from entering into anti-competitive agreements) did not apply to the supplementary health scheme, and that the issue of whether the activity carried out by AG2R in managing the supplementary scheme was an economic activity was for the national court to decide. However, to the extent that the national court in France finds that AG2R is carrying out an economic activity, Articles 102 (prohibiting abuses of a dominant position) and 106 (prohibiting State measures from breaching EU competition law rules) of the TFEU do not preclude public authorities from granting the manager of such a scheme an exclusive right to manage the scheme without any possibility of the undertakings in the sector being exempted from affiliation.
The solidarity principles (i.e. "the inherently uncommercial act of involuntary subsidisation of one social group by another"), which rendered the service provided by AG2R less competitive than a comparable service provided by insurance companies who were not bound by those principles, may justify the exclusive right of AG2R to manage the scheme, without there being any possibility of exemption from affiliation. Annulling the agreement that made affiliation compulsory could make it impossible for AG2R to accomplish the tasks of general economic interest which had been assigned to it.