Conseil d’État, 1ère sous-section jugeant seule, 20/03/2015, 366345, Inédit au recueil Lebon
The present case concerns the complementary health insurance scheme in France and, in particular, the right to choose a health fund.
A Branch Agreement and a Ministerial decree created a mandatory supplementary health insurance for persons working in on-duty pharmacies obliging them to adhere to a specific health insurance body. Consequently, chemists had to pay their social contributions to the designed insurance body, without having the right to choose another public or private health fund.
Two companies specialised in the insurance sector challenged the new health insurance scheme before the Supreme Court (Conseil d’État).
Firstly, the Supreme Court (Conseil d’État) complied with the Constitutional court (Conseil constitution) and held that the litigated health scheme was unconstitutional. However, restricting their findings of unconstitutionality, the supreme judges decided that the two applicants may not invoke the unconstitutionality.
Concerning the general compatibility of the litigated health insurance scheme with the EU law, the Supreme Court (Conseil d’État) has to wait for the ruling of the EU Court of Justice, which was seised for a preliminary ruling in the case ”Société Beaudout Père et Fils” in order to examine the litigated health insurance scheme concerning people working in the bakery industry.
Secondly, concerning the EU competition rules, the Supreme Court (Conseil d’État) held that the designation of a unique health insurance organisation would not automatically create a dominant position.
However, as it concerns the pretended violation of the public procurement rules the Supreme Court (Conseil d’État) decided to stay proceedings and to wait for the ruling of the Supreme Court (Cour de cassation) which should judge whether the syndics should had organised a call for competition addressed to all the economic operators (case ”Selarl Legrand / Baba-Pom”).
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