Bayerische Ärzteversorgung and Others (Economic and monetary policy - European system of national and regional accounts - Statistical reporting requirements applicable to pension funds - Judgment) [2024] EUECJ C-758/22 (28 November 2024)

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( References for a preliminary ruling - Economic and monetary policy - European system of national and regional accounts - Statistical reporting requirements applicable to pension funds - Special pension schemes for the professions - Compulsory membership and contributions )

REQUESTS for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany), made by decisions of 27 September 2022, received at the Court on 15 December 2022, in the proceedings

Bayerische Ingenieurversorgung-Bau m. Psychotherapeutenversorgung (C‑758/22),

composed of I. Jarukaitis, President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and Z. Csehi (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 13 December 2023,

– the Bayerische Ärzteversorgung, the Bayerische Architektenversorgung, the Bayerische Apothekerversorgung, the Bayerische Rechtsanwalts- und Steuerberaterversorgung, the Bayerische Ingenieurversorgung-Bau m. Psychotherapeutenversorgung, by S. Altenschmidt and P. Müller, Rechtsanwälte,

– the Deutsche Bundesbank, by L. Luyken, M. Mogendorf, W. Spoerr, Rechtsanwälte,

– the European Commission, by F. Blanc, S. Delaude and L. Mantl, acting as Agents,

– the European Central Bank (ECB), by S.J. Hlásková Murphy, K. Kaiser and B. van der Eem, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 February 2024,

1 The references for a preliminary ruling concern the interpretation of Regulation (EU) 2018/231 of the European Central Bank of 26 January 2018 on statistical reporting requirements for pension funds (ECB/2018/2) (OJ 2018 L 45, p. 3) read in conjunction with Regulation (EU) No 549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts in the European Union (OJ 2013 L 174, p. 1).

2 The requests have been made in the context of two sets of proceedings between a number of mutual insurance institutions, namely, on the one hand, the Bayerische Ärzteversorgung (doctors’ pension scheme of Bavaria, Germany), the Bayerische Architektenversorgung (architects’ pension scheme of Bavaria), the Bayerische Apothekerversorgung (pharmacists’ pension scheme of Bavaria), the Bayerische Rechtsanwalts- und Steuerberaterversorgung (lawyers’ and accountants’ pension scheme of Bavaria), and the Bayerische Ingenieurversorgung-Bau m. Psychotherapeutenversorgung (pension scheme of civil engineers and of psychotherapists of Bavaria), in Case C‑758/22, and on the other hand, the Sächsische Ärzteversorgung (doctors’ pension scheme of Saxony, Germany), in Case C‑759/22, and the Deutsche Bundesbank (German Central Bank), concerning whether those mutual insurance institutions are subject to statistical reporting requirements applicable to pension funds.

‘(1) Policymaking in the Union and monitoring of the economies of the Member States and of the economic and monetary union (EMU) require comparable, up-to-date and reliable information on the structure of the economy and the development of the economic situation of each Member State or region.

(3) Citizens of the Union need economic accounts as a basic tool for analysing the economic situation of a Member State or region. For the sake of comparability, such accounts should be drawn up on the basis of a single set of principles that are not open to differing interpretations. The information provided should be as precise, complete and timely as possible in order to ensure maximum transparency for all sectors.

(12) The revised European System of Accounts set up by this Regulation (ESA 2010) includes a methodology, and a transmission programme which defines the accounts and tables that are to be provided by all Member States according to specified deadlines. The Commission should make those accounts and tables available to users on specific dates and, where relevant, according to a pre-announced release calendar, particularly with regard to monitoring economic convergence and achieving close coordination of the Member States’ economic policies.

(14) The ESA 2010 is gradually to replace all other systems as a reference framework of common standards, definitions, classifications and accounting rules for drawing up the accounts of the Member States for the purposes of the Union, so that results that are comparable between the Member States can be obtained.

(a) a methodology (Annex A) on common standards, definitions, classifications and accounting rules that shall be used for compiling accounts and tables on comparable bases for the purposes of the Union, together with results as required under Article 3;

5 Annex A to that regulation contains Chapter 1 entitled ‘General features and basic principles’, paragraphs 1.34, 1.35, 1.37 and 1.57 of which are worded as follows:

‘1.34 Sector accounts are created by allocating units to sectors and this enables transactions and balancing items of the accounts to be presented by sector. The presentation by sector reveals many key measures for economic and fiscal policy purposes. The main sectors are households, government, corporations (financial and non-financial), non-profit institutions serving households (NPISHs) and the rest of the world.

The distinction between market and non-market activity is an important one. An entity controlled by government, which is shown to be a market corporation, is classified in the corporation sector, outside the general government sector. Thus, the deficit and debt levels of the corporation will not be part of the general government deficit and debt.

1.35 It is important that clear and robust criteria for allocating entities to sectors are set out.

The public sector consists of all institutional units resident in the economy that are controlled by government. The private sector consists of all other resident units.

Table 1.1 sets out the criteria used to distinguish between public and private sector, and in the public sector between the government sector and public corporations sector, and in the private sector between the NPISH sector and the private corporations sector.

1.37 Differentiating between market and non-market, and so, for public sector entities, classifying them into the general government sector or the corporations sector, is decided by the following rule:

An activity shall be considered as a market activity when the corresponding goods and services are traded under the following conditions:

(1) sellers act to maximise their profits in the long term, and do so by selling goods and services freely on the market to whoever is prepared to pay the asking price;

(2) buyers act to maximise their utility given their limited resources, by buying according to which products best meet their needs at the offered price;

(3) effective markets exist where sellers and buyers have access to, and information on, the market. An effective market can operate even if these conditions are not met perfectly.

1.57 Institutional units are economic entities that are capable of owning goods and assets, of incurring liabilities and of engaging in economic activities and transactions with other units in their own right. For the purposes of the ESA 2010 system, the institutional units are grouped together into five mutually exclusive domestic institutional sectors:

The five sectors together make up the total domestic economy. Each sector is also divided into subsectors. The ESA 2010 system enables a complete set of flow accounts and balance sheets to be compiled for each sector, and subsector, as well as for the total economy. Non-resident units can interact with these five domestic sectors, and the interactions are shown between the five domestic sectors and a sixth institutional sector: the rest of the world sector.’

6 Annex A to Regulation No 549/2013 includes, in Chapter 2 thereof, which is headed ‘Units and groupings of units’, paragraphs 2.32 to 2.35, 2.38, 2.40, 2.43, 2.105 to 2.110 and 2.117 which state as follows:

‘2.32 Each sector and subsector groups together the institutional units which have a similar type of economic behaviour.

2.33 The institutional units are grouped into sectors on the basis of the type of producer they are and depending on their principal activity and function, which are considered to be indicative of their economic behaviour.

2.34 Diagram 2.1 shows how units are allocated to the main sectors. In order to determine the sector of a unit which is resident and not a household, according to the diagram, it is necessary to determine whether it is controlled by general government or not, and whether it is a market or a non-market producer.

2.35 Control over a financial or non-financial corporation shall be defined as the ability to determine general corporate policy, for example by choosing appropriate directors if necessary.

2.38 General government secures control over a corporation as a result of special legislation, decree or regulation which empowers the government to determine corporate policy. The following indicators are the main factors to consider in deciding whether a corporation is controlled by government:

A single indicator may be sufficient to establish control, but, in other cases, a number of separate indicators may collectively indicate control.

2.40 Differentiating between market and non-market, and so for public sector entities classification between the general government sector and the corporations sector, depends on the criteria set out in paragraph 1.37.

2.43 Table 2.2 shows the type of producer and the principal activities and functions that are characteristic of each sector:

Table 2.2 - Type of producer and principal activities and functions classified by sector

2.105 Definition: the pension funds subsector (S.129) consists of all financial corporations and quasi-corporations which are principally engaged in financial intermediation as the consequence of the pooling of social risks and needs of the insured persons (social insurance). Pension funds as social insurance schemes provide income in retirement, and often benefits for death and disability.

2.106 Subsector S.129 consists of only those social insurance pension funds that are institutional units separate from the units that create them. Such autonomous funds have autonomy of decision and keep a complete set of accounts. Non-autonomous pension funds are not institutional units and remain part of the institutional unit that sets them up.

2.107 Examples of participants in pension fund schemes include employees of a single enterprise or a group of enterprises, employees of a branch or industry, and persons having the same profession. The benefits included in the insurance contract can be:

2.108 In some countries, all those types of risks can be insured by life insurance corporations as well as through pension funds. In other countries, it is required that some of those classes of risks are insured through life insurance corporations. In contrast to life insurance corporations, pension funds are restricted by law to specified groups of employees and self-employed.

2.109 Pension fund schemes may be organised by employers or by general government. They may also be organised by insurance corporations on behalf of employees; or separate institutional units may be established to hold and manage the assets to be used to meet the pension entitlements and to distribute the pensions.

(a) institutional units which fulfil each of the two criteria listed in paragraph 2.117. They are classified in subsector S.1314;

2.117 Definition: the social security funds subsector includes central, state and local institutional units whose principal activity is to provide social benefits and which fulfil each of the following two criteria:

(a) by law or by regulation certain groups of the population are obliged to participate in the scheme or to pay contributions; and

(b) general government is responsible for the management of the institution in respect of the settlement or approval of the contributions and benefits independently from its role as supervisory body or employer.

There is usually no direct link between the amount of the contribution paid by an individual and the risk to which that individual is exposed.’

7 Annex A to that regulation contains Chapter 3, entitled ‘Transactions in products and non-produced assets’, paragraphs 3.17 to 3.19, 3.24, 3.26 to 3.28 of which read as follows:

‘3.17 Definition: market output consists of output that is disposed of on the market or intended to be disposed of on the market.

3.19 Definition: economically significant prices are prices that have a substantial effect on the amounts of products that producers are willing to supply and on the amounts of products that purchasers wish to acquire. Such prices arise when both of the following conditions apply:

(a) the producer has an incentive to adjust supply either with the goal of making a profit in the long run or, at a minimum, covering capital and other costs; and

(b) consumers have the freedom to purchase or not purchase and make the choice on the basis of the prices charged.

Not economically significant prices are likely to be charged in order to raise some revenue or achieve some reduction in the excess demand that may occur when services are provided completely free.

The economically significant price of a product is defined in relation to the institutional unit and local KAU that has produced the output. For example, all the output of unincorporated enterprises owned by households sold to other institutional units is sold at economically significant prices; it is thus to be regarded as market output. For the output of other institutional units, the ability to undertake a market activity at economically significant prices will be checked notably through a quantitative criterion (the 50% criterion), using the ratio of sales to production costs. To be a market producer, the unit shall cover at least 50% of its costs by its sales over a sustained multi-year period.

3.24 Definition: market producers are local KAUs or institutional units the majority of output of which is market output.

If a local KAU or institutional unit is a market producer, its main output is by definition market output, as the concept of market output is defined after having applied the distinction market, for own final use and non-market output, to the local KAU and institutional unit that have produced that output.

3.26 Definition: non-market producers are local KAUs or institutional units the major part of the output of which is provided for free or at not economically significant prices.

Institutional units distinction between market, for own final use and non-market

3.27 For institutional units as producers, the distinction between market, for own final use and non-market is summarised in Table 3.1. The classification by sectors is also shown.

Table 3.1 - The distinction between market producers, producers for own final use and non-market producers for institutional units

3.28 Table 3.1 shows that, in order to determine whether an institutional unit should be classified as a market producer, a producer for own-final use or a non-market producer, several distinctions are made sequentially. The first distinction is between private and public producers. A public producer is a producer that is controlled by the general government, where control is as defined in paragraph 2.38.’

8 Annex A to that regulation contains Chapter 17, paragraph 17.43 of which states:

‘Definition: social security pension schemes are contractual insurance schemes where the beneficiaries as participants of a social insurance scheme are obliged by general government to insure against old age and other age-related risks such as disability, health etc. Social security pensions are provided to beneficiaries by general government.’

9 Chapter 20 of that Annex A, which is headed ‘The Government Accounts’ includes in particular paragraphs 20.05, 20.15, 20.32 to 20.34, 20.38, 20.39, 20.306, 20.309 and 20.310 which state as follows:

20.05 The general government sector (S.13) consists of all government units and all non-market non-profit institutions (NPIs) that are controlled by government units. It also comprises other non-market producers as identified in paragraphs 20.18 to 20.39.

20.15 Control of a NPI is defined as the ability to determine the general policy or programme of the NPI. Public intervention in the form of general regulations applicable to all units working in the same activity is irrelevant when deciding whether the government holds control over an individual unit. To determine whether a NPI is controlled by the government, the following five indicators of control should be considered:

(b) other provisions of the enabling instrument, such as the obligations in the statute of the NPI;

A single indicator can be sufficient to establish control. However, if a NPI that is mainly financed by government remains able to determine its policy or programme to a significant extent along the lines mentioned in the other indicators, then it would not be considered as being controlled by government. In most cases, a number of indicators will collectively indicate control. A decision based on these indicators will be judgmental in nature.

20.32 The case of units engaged in financial activities needs special consideration. Financial intermediation is the activity in which units acquire financial assets and at the same time incur liabilities on their own account by engaging in financial transactions.

20.33 A financial intermediary places itself at risk by incurring liabilities on its own account. For instance, if a public financial unit manages assets but does not place itself at risk by incurring liabilities on its own account, it is not a financial intermediary and the unit is classified in the general government sector rather than in the financial corporations sector.

20.34 Applying the quantitative criterion of the market/non-market test to public corporations involved in financial intermediation or in managing assets is generally not relevant, because their earnings arise from both property income and holding gains.

20.38 Employers’ pension schemes are arrangements set up to provide retirement benefits to participants, based on a contractual employer-employee relationship. They include funded, unfunded, and partly funded schemes.

20.39 A defined-contribution funded scheme, established by a government unit, is not treated as a social security scheme, where there is no government guarantee on the level of pensions due, and the level of pensions is uncertain because it depends on asset performance. As a consequence, the unit identified as managing the scheme - as well as the fund itself, if it is a separate institutional unit - is considered a financial corporation, classified in the insurance corporations and pension funds subsector.

20.306 All institutional units included in the public sector are resident units controlled by government, either directly or indirectly by public sector units in aggregate. The control over an entity is defined as the ability to determine the general policy of that entity. This is described in more detail below.

20.309 Control of a resident public sector unit is defined as the ability to determine the general policy of the unit. This can be through the direct rights of a single public sector unit or the collective rights of many. The following indicators of control are to be considered:

(h) control via excessive regulation. When regulation is so tight that it effectively dictates the general policy of the business, it is a form of control. Public authorities can in some cases have powerful regulatory involvement, particularly in areas such as monopolies and privatised utilities where there is a public service element. It is possible for regulatory involvement to exist in important areas, such as price setting, without an entity ceding control of general policy. Choosing to enter into or operate in a highly regulated environment is similarly an indicator the entity is not subject to control;

(i) others. Control may also be obtained from statutory powers or rights contained in an entity's constitution, for example to limit the activities, objectives and operating aspects, approve budgets or prevent the entity changing its constitution, dissolving itself, approving dividends, or terminating its relationship with the public sector. An entity that is fully, or close to fully, financed by the public sector is considered to be controlled if the controls on that funding stream are restrictive enough to dictate the general policy in that area.

20.310 Each classification case needs to be judged on its own merits and some of these indicators may not be relevant to the individual case. Some indicators, such as (a), (c) and (d) in paragraph 20.309, are sufficient by themselves to establish control. For others a number of separate indicators may collectively indicate control.’

‘The purpose of imposing statistical reporting requirements on PFs is to provide the [European Central Bank (ECB)] with adequate statistics on the financial activities of the PF subsector in the Member States whose currency is the euro (hereinafter the “euro area Member States”), which are viewed as one economic territory. The collection of statistical information on PFs is necessary to satisfy regular and ad hoc analytical needs, to support the ECB in carrying out monetary and financial analysis, and for the ESCB’s contribution to the stability of the financial system.’

1. “pension fund (PF)” (subsector S.129 of the ESA 2010) means a financial corporation or quasi-corporation that is principally engaged in financial intermediation as the consequence of the pooling of social risks and needs of the insured persons (social insurance). A pension fund as a social insurance scheme provides income in retirement and may provide benefits for death and disability.

12 In Bavaria, mutual insurance institutions are covered, inter alia, by Article 1, entitled ‘Legal form, seat, scope, regulatory power’, of the Gesetz über das öffentliche Versorgungswesen (Law on the Public Mutual Insurance System) of 16 June 2008 (BayGVBl. p. 182), in the version applicable to the facts in the main proceedings in Case C‑758/22 (‘the VersoG’).

13 Article 9 of the VersoG, entitled ‘Principles governing commercial activities’, provides in paragraphs 1 to 3:

“(1) Mutual insurance institutions shall operate on the basis of mutuality and exclusively for public interest purposes. They are required to practise prudent economic management. The assets of mutual insurance institutions must be separated.

(2) Mutual insurance institutions shall cover their administrative expenses, including the remuneration of civil servants, employees and workers as well as benefits granted to beneficiaries, from their own funds. The allocation between the various mutual insurance institutions shall be carried out in accordance with the costs actually incurred.

(3) The funds and assets of mutual insurance institutions may be used for the sole purpose of fulfilling their insurance-provision mandate. In the event of the dissolution of an institution, the remaining funds shall accrue to the members, insured persons and beneficiaries, in accordance with the provisions of the statutes.’

14 Article 10 of the VersoG, entitled ‘Statutes’, provides in paragraphs 1 to 3 thereof as follows:

“(1) mutual insurance institutions shall govern their affairs by means of statutes in accordance with this law.

(2) The statutes must contain, in addition to the matters specifically mentioned in this law, provisions concerning:

1. the composition, duration of the term of office and the convening of the board of directors and of committees;

2. the proposal of members to, and departure of members from, the board of directors and their alternates …;

4. the amount of the contributions and their due date or the principles for setting distributions;

5. the conditions, nature and amount and the termination of rights of members, insured persons and those receiving benefits;

(3) The statutes and amendments to them shall be drawn up by the chairman of the board of directors after prudential approval and published in the Bayerischer Staatsanzeiger. They shall enter into force on the day following their publication, unless another date has been set.’

15 Part Two of the VersoG, entitled ‘Mutual insurance institution of Bavarian doctors, Mutual insurance institution of Bavarian pharmacists, Mutual insurance institution of Bavarian architects, Mutual insurance institution of Bavarian civil engineers and of Bavarian psychotherapists, Mutual insurance institution of Bavarian lawyers and accountants’, Chapter 1 of which concerns ‘Common provisions’, includes Article 28 of that law, entitled ‘Tasks’. That article provides, in its third sentence, that ‘mutual insurance institutions must fulfil the conditions for their members to be exempted from the obligation to be insured under the statutory pension insurance scheme’.

16 Article 30 of the VersoG, headed ‘Membership’, states in its paragraphs 1 to 3:

(2) The statutes may provide for exceptions and exemptions from compulsory membership, in particular where the member of the profession:

1. pursues his or her professional activity on a temporary basis only or on a small scale;

2. begins professional activity at an advanced age or becomes a member of the professional association at an advanced age;

(3) Members who joined compulsorily and whose membership has ceased may remain voluntary members in accordance with the provisions of the Statutes.’

17 Article 31 of the VersoG, entitled ‘Contributions, transition’, provides in paragraphs 1 and 4:

“(1) Members are required to pay contributions in accordance with the provisions of the Statutes. The Statutes may provide for minimum contributions independent of income. They may stipulate that, in order to maintain pension coverage, appropriate contributions must be paid for periods without work or gainful activity or without income. The compulsory contribution must not exceed the limit which determines the dispensation from corporation tax enjoyed by the mutual insurance institution.

(4) The statutes may permit additional voluntary payments in order to increase pension rights. Such payments, which are added to the compulsory contribution, may not exceed the limit set in the fourth sentence of paragraph 1.’

18 Articles 33 to 36 and 38 of the VersoG set out the rules relating to compulsory membership of the mutual insurance institutions concerned.

19 Paragraph 6 of the Sächsisches Heilberufekammergesetz (Law on associations of healthcare professionals of Saxony) of 24 May 1994 (SächsGVBl. p. 935), in the version applicable to Case C‑759/22, which is entitled ‘Mutual Insurance Institutions’, provided:

‘(1) Associations may, by their statutes, set up a mutual insurance institution to provide for the welfare of their members and members of their families. … Members of the associations shall be members of the mutual insurance institution in accordance with the statutes.

1. the tasks, formation, composition, election and term of office of the bodies of the mutual insurance institution, as well as its legal representation in court proceedings and other legal representation, in so far as is not already governed by legal provisions,

2. the beginning and end of compulsory membership and the conditions under which exceptions and exemptions from compulsory membership are permitted,

3. the conditions under which voluntary membership is permitted, in particular following cessation of membership of the association,

4. the conditions under which entitlements may be increased after a divorce settlement,

6. the obligation on members to participate, the beginning and end of the obligation to contribute, the procedure for setting contributions and the due date and details of the amount of the contributions, which are calculated according to income

(b) from capital, in so far as the income comes from corporations whose object is also to provide medical, dental, veterinary or pharmacy services, and

(c) from commercial activities, in so far as they include medical, dental, veterinary or pharmacy services, and which must not exceed the amount resulting from [the relevant law] in the version in force,

7. the amount of reductions and dispensations from contributions which may be granted in specific situations,

8. the conditions and amount of any late payment charges in respect of contributions due,

9. the conditions under which contributions or late payment charges may be deferred, waived or abolished,

10. the conditions for the grant of, and the amount of benefits, old-age pension, invalidity pension and survivor’s pension,

The statutes may lay down the conditions under which a member may transfer the contributions he or she has paid into the mutual insurance institution to another public law insurance institution or to another mutual insurance institution for his or her occupational category (occupational mutual insurance institution), as well as the conditions and amount of the right to reimbursement of contributions paid on cessation of membership.

(4) The assets of the mutual insurance institution constitute special funds which are available only to meet the obligations of the mutual insurance institution. It must be managed separately from the other assets of the association. It may be used only for purposes permitted by law, including compensation for necessary administrative costs.’

The disputes in the main proceedings and the questions referred for a preliminary ruling

20 In 2018 and 2019, the applicants in the main proceedings received communications from the German Central Bank informing them that, under Articles 1 and 2 of Regulation 2018/231, they were subject, as pension funds, to statistical reporting requirements under which they had to send to it, with effect from 30 September 2019, more precise data on their financial situation, on a quarterly basis for certain applicants and on an annual basis for others.

21 The applicants in the main proceedings brought actions before the Verwaltungsgericht Frankfurt am Main (Administrative Court, Frankfurt am Main, Germany) seeking, primarily, the annulment of those communications and, in the alternative, a declaration that they are not subject to the statistical reporting requirements referred to above.

22 That court dismissed those actions on the ground that the applicants in the main proceedings are pension funds within the meaning of point 1 of Article 1 of Regulation 2018/231 and that they are therefore subject to reporting requirements under Article 2(1) of that regulation. According to that court, mutual insurance institutions such as the applicants in the main proceedings form part, as market producers, of financial limited liability corporations and therefore fall within the pension fund subsector (S.129) of the ESA 2010 provided for by Regulation No 549/2013. As part of their main activity, they provide mutual insurance services. In order to do so, they establish prices which are economically significant. The same applies in respect of compulsory benefits. In the absence of state aid, mutual insurance institutions are required to regulate contributions and benefits in such a way that their ability to provide benefits continued to be ensured. In any event, classification of compulsory benefits as market output follows, in particular, from paragraph 3.19 of Annex A to Regulation No 549/2013, since the applicants in the main proceedings have for a number of years covered at least 50% of their costs by sales of their products. That court states that Paragraph 1.37 of Annex A to that regulation does not preclude such classification, since that provision applies only to public sector entities, and the applicants in the main proceedings are not public sector entities in so far as they are not controlled by the State. Therefore, an allocation to the social security funds subsector (S.1314) of the ESA 2010, to which the obligation to provide information does not apply, can also be ruled out. That classification as a pension fund of the applicants in the main proceedings is confirmed by paragraph 20.39 of Annex A to that regulation. Under that provision, a pre-determined contribution funded scheme managed by a public body is not to be treated as a social security scheme where it operates, as is the case for the applicants in the main proceedings, with no State guarantee as to the amount of benefits to be paid and that amount, which is dependent on the profitability of the assets managed, is necessarily uncertain.

23 The applicants in the main proceedings brought an appeal on a point of law (Revision) against that judgment before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), which is the referring court. They submit that they are not market producers. Their compulsory benefits, which constitute the major part of their production, are not sold at economically significant prices. In that regard, since members with a membership obligation could not choose freely to purchase mutual insurance benefits on the basis of the required contributions, which breaches one of the conditions of such prices, namely the condition at point (b) of the first subparagraph of paragraph 3.19 of Annex A to Regulation No 549/2013, which provides that ‘consumers have the freedom to purchase or not purchase and make the choice on the basis of the prices charged’. The applicants argue that the 50% criterion laid down in the third subparagraph of paragraph 3.19 of Annex A - whereby an institutional unit which, over a sustained multi-year period, covers at least 50% of its costs by its sales, is to be classified as a market producer - is not relevant, since it serves only to determine output value. In any event, mutual insurance institutions, like statutory pension insurance, fall within social security.

24 The German Central Bank submits that the judgment of the Verwaltungsgericht Frankfurt am Main (Administrative Court, Frankfurt am Main) is not vitiated by the alleged errors of law.

25 The referring court has doubts regarding the classification of the applicants in the main proceedings, having regard, in particular, to Article 1(1)(f) of Regulation 2018/231 and paragraphs 1.37, 2.107, 2.117, 3.17 to 3.19, 3.24, 3.26, 17.43, 20.10. 20.12 and 20.39 of Annex A to Regulation No 549/2013. It asks whether they ought to be classified as pension funds or social security funds, or whether they ought to be classified in another way.

26 That court states that the applicants in the main proceedings are bodies governed by public law with legal personality. They may pursue only activities in the public interest and may use their funds and assets only for the fulfilment of their public service mandate. They must bear their own administrative costs, including the remuneration of their staff and the benefits granted to beneficiaries, from their own resources.

27 The referring court states that, under German law, the vast majority of members of the schemes of the applicants in the main proceedings are subject to compulsory membership on account of the fact that they pursue their profession in Bavaria or Saxony. When that compulsory membership ends, it is possible to remain a member on a voluntary basis, in order to be able to continue to acquire pension rights. The applicants in the main proceedings determine, in their statutes, the collection of contributions or of contributions to the financing of their mandate, as well as the conditions, nature, amount and termination of pension rights. Additional voluntary payments are also possible, but they are subject to an authorised maximum amount. The applicants in the main proceedings provide more than 50% of their benefits to their members who are subject to compulsory membership.

28 In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions, which are worded identically in Case C‑758/22 and Case C‑759/22, to the Court of Justice for a preliminary ruling:

‘(1) (a) Does point (b) of the first subparagraph of paragraph 3.19 of Annex A to the ESA require that all consumers of the products offered by the producer must have the freedom to purchase or not purchase those products and to make that choice on the basis of the prices charged?

(b) In cases where the vast majority of those consumers, without having such freedom of choice, receive from the producer products amounting to more than half of its output by virtue of compulsory membership with that producer and are required to pay compulsory contributions in an amount set by the producer, are the requirements of the provision satisfied by the fact that a minority had the option of joining the producer as voluntary members and exercised that option in order to obtain the products in exchange for payment of the same contributions as the compulsory members?

(2) Will market output at economically significant prices, as defined under paragraphs 3.17 to 3.19 of Annex A to the ESA, always be present if the “50% criterion” defined in the third and fourth sentences of the third subparagraph of paragraph 3.19 of Annex A to the ESA is fulfilled by virtue of the fact that at least 50% of the costs are covered by sales over a sustained multi-year period, or is that criterion to be interpreted not as a sufficient condition (one that is sufficient by itself) but rather as a necessary condition that applies in addition to the two preconditions laid down in points (a) and (b) of the second sentence of the first subparagraph of paragraph 3.19 of Annex A to the ESA?

(3) For the purposes of determining whether institutional units are market producers as defined in paragraph 3.24 of Annex A to the ESA, must reference be made not only to paragraphs 3.17, 3.19 and 3.26 of Annex A but also to the additional requirements laid down in the second subparagraph of paragraph 1.37 of Annex A to the ESA?

(4) (a) In order for an institutional unit to be classified in subsector S.129, does paragraph 2.107 of Annex A to the ESA necessarily require that all of its benefits must be provided to all participants on the basis of an insurance contract?

(b) Is the requirement for the benefits to be provided on a contractual basis already fulfilled in this respect if, notwithstanding the fact that the compulsory membership, the compulsory contributions and the compulsory benefits of the institutional unit are governed by the public body pursuant to its statutes, compulsory members can also establish claims to additional benefits through the payment of voluntary additional contributions?

(5) Is point (f) of the [second subparagraph] of Article 1(1) of Regulation [2018/231] to be interpreted as excluding from the concept of a “pension fund”, as defined in the [first subparagraph] of that provision, only those institutional units that satisfy both of the criteria set out in paragraph 2.117 of Annex A to the ESA, or does that exception also cover other institutional units which are to be regarded as social security pension schemes under paragraph 17.43 of Annex A to the ESA, even if they do not meet all of the requirements set out in paragraph 2.117 of Annex A to the ESA?

(6) (a) Does the concept of “general government” in paragraph 2.117(b) and paragraph 17.43 of Annex A to the ESA refer only to the respective primary unit, or does it also include legally independent pension institutions that have been established on a statutory basis, are organised on the basis of compulsory membership and financed by contributions, and which have the right to self-governance and separate accounting?

(b) Does the settlement of the contributions and benefits, as referred to in paragraph 2.117(b) of Annex A to the ESA, mean [setting] the amounts, or does it suffice if a law prescribes the minimum risks to be covered and the minimum level of cover, and also regulates the principles and limits for collection of contributions, while leaving it for the pension institution to assess the amount of the contributions and benefits within this framework?

(c) Does the concept of a “government unit”, as referred to in paragraph 20.39 of Annex A to the ESA, include only institutional units that fulfil all the requirements set out in paragraphs 20.10 and 20.12 of Annex A to the ESA?’

29 By its questions, the referring court is asking, in essence, whether the provisions of Annex A to Regulation No 549/2013 must be interpreted as meaning that mutual insurance institutions - which offer benefits covering the risks of retirement, death and invalidity to members who are, for the most part, subject to compulsory membership on account of pursuing a particular profession - are covered by the concept of ‘pension funds’, within the meaning of paragraph 2.105 of that annex and, accordingly, must be subject to the statistical reporting requirements laid down in Regulation 2018/231.

30 It must be pointed out that it is clear from recital 14 of Regulation No 549/2013 that, for the purposes of the European Union, and in particular for the formulation and monitoring of its economic and social policies, the ESA 2010 establishes a reference framework intended for the drawing up of the accounts of the Member States. In that regard, as stated in recital 3 of that regulation, those accounts should be drawn up on the basis of a single set of principles that are not open to differing interpretations, so that comparable results can be obtained (judgment of 13 July 2023, Ferrovienord, C‑363/21 and C‑364/21, EU:C:2023:563, paragraph 64 and the case-law cited).

31 As is apparent from Article 1(2)(a) of that regulation, the ESA 2010 lays down a methodology, set out in Annex A, on common standards, definitions, classifications and accounting rules that is to be used for compiling accounts and tables on comparable bases for the purposes of the European Union.

32 Paragraph 1.01 of that annex states that the ESA 2010 is ‘an internationally compatible accounting framework for a systematic and detailed description of a total economy (that is, a region, country or group of countries), its components and its relations with other total economies’.

33 That annex, the design of which is similar to a handbook, is made up of 24 chapters, which are briefly described in paragraphs 1.03 and 1.04. Chapter 1 sets out the basic features of the ESA system in terms of concepts and sets out its principles. That chapter describes the basic statistical units and their groupings and gives an overview of the sequence of accounts. Chapter 2 describes the institutional units used in measuring the economy, and sets out how those units are classified into sectors and into other groups to allow analysis. Chapter 20 deals with the accounts for the government sector.

34 Paragraphs 1.34 and 1.57 of Annex A to Regulation No 549/2013 provide that every institutional unit - which is defined as an economic entity that is capable of owning goods and assets, of incurring liabilities, and of engaging in economic activities and transactions with other units in its own right - is to be allocated to one of the six main sectors identified by the ESA 2010, that is to say, non-financial corporations, financial corporations, general government, households, non-profit institutions serving households and the rest of the world (see, to that effect, judgment of 13 July 2023, Ferrovienord, C‑363/21 and C‑364/21, EU:C:2023:563, paragraph 66 and the case-law cited).

35 It is apparent from those provisions, and from paragraph 2.41 of that annex, that those sectors are mutually exclusive, so that an institutional unit can belong to only one sector or subsector. In accordance with paragraph 2.32 of that annex, each sector and subsector groups together the institutional units which have a similar type of economic behaviour.

36 The pension funds subsector falls within the financial corporations sector, as indicated in paragraph 2.66 of Annex A to Regulation No 549/2013. Therefore, pension funds are, like any institutional unit in that sector, classified as ‘market producers’, in accordance with the definition of ‘financial corporations’ in paragraph 2.55 of that annex.

37 As regards that classification of pension funds as ‘market producers’, it must be stated that particular features specific to the activities of those funds are detailed in paragraphs 2.105 to 2.110 of that annex. Indeed, it is apparent from paragraph 2.108 of that annex that, in contrast to life insurance corporations, ‘pension funds are restricted by law to specified groups of employees and self-employed’. Accordingly, the pension fund subsector groups together financial corporations which are not free to offer their services to the public as a whole.

38 In the present case, it is apparent from the orders for reference that the mutual insurance institutions at issue in the main proceedings, which are active in Bavaria (Case C‑758/22) and in Saxony (Case C‑759/22), guarantee benefits to their members after retirement, death and invalidity and are organised on a sectoral basis, in the sense that most of their members are subject to a statutory membership requirement on account of pursuing a particular profession such as doctor, pharmacist, lawyer or architect.

39 Moreover, it is that sectoral organisation of the mutual insurance institutions, and the corresponding membership requirement on their members, which resulted in the referring court asking whether the activities of those institutions are capable of falling within the concepts of ‘market output’ or ‘market activity’ within the meaning of Annex A to Regulation No 549/2013.

40 It should be stated, however, that such sectoral organisation of pension funds is expressly provided for in paragraphs 2.107 and 2.108 of Annex A to Regulation No 549/2013, as has been stated in paragraph 37 of the present judgment. Notwithstanding that particular feature, the EU legislature chose to classify pension funds as financial corporations and, therefore, as market producers. Therefore, it is necessary, in the present case, not to consider the interpretation of the concept of ‘market output’ or of ‘market activity’, but rather to establish whether mutual insurance institutions such as those at issue in the main proceedings may be classified as ‘pension funds’ in the light of the criteria laid down in paragraphs 2.105 to 2.110 of that annex.

41 In that regard, it may be inferred from the wording of paragraphs 2.105 to 2.110 of Annex A to Regulation No 549/2013 that the activities of pension funds satisfy the following criteria.

42 In the first place, it is apparent from paragraphs 2.105 and 2.107 of that annex that pension funds, which are principally engaged in financial intermediation services as a consequence of the pooling of social risks and needs of the insured persons, guarantee benefits to insured persons after retirement. Those funds may also guarantee benefits to the insured person in the event of invalidity as well as benefits to the insured person’s spouse and children in the event of the death of the insured person.

43 In the second place, paragraph 2.106 of that annex states that pension funds, which are separate from the units which created them, have autonomy of decision and keep a complete set of accounts.

44 In the third place, and as stated in paragraph 37 of the present judgment, paragraphs 2.107 and 2.108 of Annex A to Regulation No 549/2013 state that, unlike life assurance corporations, pension funds are restricted by law to specific groups of employees and self-employed persons, such as, in particular, persons pursuing the same profession.

45 In the fourth place, paragraph 2.110 of that annex excludes the concept of social security funds referred to in paragraph 2.117 of that annex from the concept of ‘pension fund’. Paragraph 2.117 states that social security funds, whose principal activity is the provision of social benefits, are characterised by the fact that, first, by law certain groups of the population are obliged to participate in the scheme or to pay contributions and, second, general government is responsible for the settlement or approval of the contributions and benefits, there being usually no direct link between the amount of the contribution paid by an individual and the risks to which that individual is exposed.

46 In that latter regard, it is apparent from paragraph 20.39 of Annex A to Regulation No 549/2013, which forms part of Chapter 20 of that annex, entitled ‘The government accounts’, that a pension scheme, even if established by a government unit, cannot be treated as a social security scheme and must be classified in the pension fund subsector where there is no government guarantee on the level of benefits and the level of benefits is uncertain because it depends on the performance of assets.

47 In accordance with settled case-law of the Court, in the context of the procedure provided for in Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter does not have jurisdiction to interpret national law and only the national courts may establish and assess the facts of the dispute in the main proceedings and determine the exact scope of national laws, regulations or administrative provisions (judgment of 28 April 2022, SeGEC and Others, C‑277/21, EU:C:2022:318, paragraph 21and the case-law cited).

48 However, the Court, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written observations which have been submitted to it, in order to enable that court in question to give judgment (judgment of 28 April 2022, SeGEC and Others, C‑277/21, EU:C:2022:318, paragraph 22 and the case-law cited).

49 In the present case, it is apparent from the explanations provided by the referring court that the activities of the mutual insurance institutions at issue in the main proceedings have the characteristics set out below.

50 First, it is common ground that those mutual insurance institutions guarantee benefits to their members in the event of retirement, death and invalidity.

51 Second, it is apparent from the information provided by the referring court that the mutual insurance institutions at issue in Case C‑758/22, which have legal personality, enjoy a right to self-governance and keep separate accounts. According to the same information, the mutual insurance institution at issue in Case C‑759/22, while being a body of the doctors’ association with partial legal personality, is organisationally and economically independent, enjoys considerable autonomy, has its own assets and keeps a complete set of accounts. Such mutual insurance institutions, which enjoy management autonomy and keep separate accounts, satisfy the criterion set out in paragraph 43 of the present judgment.

52 Third, it is also apparent from the information provided by the referring court referred to in paragraph 38 of the present judgment that the vast majority of members of the mutual insurance institutions at issue in the main proceedings are subject to a statutory membership requirement on account of pursuing a particular professional activity, it being understood that those mutual insurance institutions are not, in principle, permitted to provide their services to other persons. Therefore, such institutions appear to satisfy the criterion referred to in paragraph 44 of the present judgment.

53 Fourth, it is apparent from the orders for reference that the level of benefits offered to members, which general government does not guarantee, depends on the amount of the contributions paid and on the performance by the mutual insurance institution concerned in managing assets. Furthermore, the referring court has indicated that the mutual insurance institutions at issue in the main proceedings determine, within the framework of the statutory provisions, the amount of the contributions which they receive and the amount of the benefits which they offer. Therefore, such mutual insurance institutions meet the criteria, referred to in paragraphs 45 and 46 of the present judgment, which precludes classification as a social security scheme in favour of classification as a pension fund.

54 It follows that, if the activities of the mutual insurance institutions at issue in the disputes in the main proceedings do have the characteristics listed in paragraphs 50 to 53 of the present judgment, which it is for the referring court to establish, those institutions may be classified in the subsector of ‘pension funds’ within the meaning of paragraph 2.105 of Annex A to Regulation No 549/2013.

55 In the light of all the foregoing considerations, the answer to the questions referred is that the provisions of Annex A to Regulation No 549/2013 must be interpreted as meaning that mutual insurance institutions whose activities have all the following characteristics are covered by the concept of a pension funds within the meaning of paragraph 2.105 of that annex and, accordingly, must in principle be subject to the statistical reporting requirements laid down by Regulation 2018/231:

– those mutual insurance institutions offer benefits covering the risks of retirement, death and invalidity;

– the vast majority of their members are subject to a legal membership requirement on account of pursuing a particular profession, it being understood that those mutual insurance institutions are not, in principle, permitted to provide their services to other persons;

– the level of benefits offered to members, which general government does not guarantee, depends on the amount of the contributions paid and on the performance by the mutual insurance institution concerned in managing assets.

56 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

The provisions of Annex A to Regulation (EU) No 549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts in the European Union

must be interpreted as meaning that mutual insurance institutions whose activities have all the following characteristics are covered by the concept of pension funds, within the meaning of paragraph 2.105 of that annex and, accordingly, must in principle be subject to the statistical reporting requirements laid down by Regulation (EU) 2018/231 of the European Central Bank of 26 January 2018 on statistical reporting requirements for pension funds:

– those mutual insurance institutions offer benefits covering the risks of retirement, death and invalidity;

Type of producer	Principal activity and function	Sector
Market producer	Production of market goods and non-financial services	Non-financial corporations (S.11)
Market producer	Financial intermediation including insurance Auxiliary financial activities	Financial corporations (S.12)
Public non-market producer	Production and supply of non-market output for collective and individual consumption, and carrying out transactions intended to redistribute national income and wealth	General government (S.13)
Market producer or private producer for own final use	Consumption Production of market output and output for own final use	Households (S.14) As consumers As entrepreneurs
Private non-market producer	Production and supply of non-market output for individual consumption	Non-profit institutions serving households (S.15)

Type of institutional unit				Classification
Private or public?		NPI or not?	Market producer?	Type of producer	Sector(s)
1. Private producers	1.	Private producers	1.1 Unincorporated enterprises owned by households (excluding quasi-corporate enterprises owned by households)	1.1	Unincorporated enterprises owned by households (excluding quasi-corporate enterprises owned by households)			1.1 = Market or for own final use	Households
	1.2 Other private producers (including quasi-corporate enterprises owned by households)	1.2	Other private producers (including quasi-corporate enterprises owned by households)	1.2.1 Private NPIs	1.2.1	Private NPIs	1.2.1.1 Yes	1.2.1.1	Yes	1.2.1.1 = Market	Corporations
			1.2.1.2 No	1.2.1.2	No	1.2.1.2 = Non-market	NPISH
		1.2.2 Other private producers not NPI	1.2.2	Other private producers not NPI		1.2.2 = Market	Corporations
2. Public producers	2.	Public producers			2.1 Yes	2.1	Yes	2.1 = Market	Corporations
			2.2 No	2.2	No	2.2 = Non-market	General government

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bayerische Ärzteversorgung and Others (Economic and monetary policy - European system of national and regional accounts - Statistical reporting requirements applicable to pension funds - Judgment) [2024] EUECJ C-758/22 (28 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C75822.html Cite as: [2024] EUECJ C-758/22

Court of Justice of the European Communities (including Court of First Instance Decisions)