The referring court has not established the facts nee‍d­ed to enable the Court to ascertain whether, in the cases in the main proceedings, there is certain cross-border interest. Therefore, the Court’s answer is given subject to the proviso that the referring court establishes that there is certain cross-border interest in the case in the main proceedings. Accordingly, the following statements are made on the premiss that the grant of the right to manage each of the supplementary social insurance schemes at issue in the main proceedings for all employers and employees within the sectors concerned presents certain cross-border interest, a matter which must, however, be determined by the referring court (§28-32).

Where a public authority renders binding, for all employers and employees in a sector, a collective agreement appointing a single body to manage a compulsory social insurance scheme throughout a given period, that decision also binds those who, since they are not members of an organisation which is a signatory to that agreement, were not represent­ed when the agreement in question was negotiated and concluded (§33).

Where a public authority creates an exclusive right, the obligation of transparency is, in principle, to be complied with (see Sporting Exchange, C-203/08, paragraph 47). Accordingly, where a public authority exercises its power to extend the binding nature of a collective agreement appointing a single body to manage a supplementary social insurance scheme, it must previously have given potentially interested operators other than the one appointed an opportunity to express their interest in providing such management and must have acted with full impartiality when appointing the operator entrusted with management of that supplementary scheme (§35).

The extension decision is not exempt, because of its subject-matter (an agreement concluded following collective bargaining between organisations representing respectively employers and employees within a sector), from the requirements of transparency resulting from Article 56 TFEU (§ 37).

According to the case-law, the obligation of transparency stems from the principles of equal treatment and non-discrimination, compliance with which is required by the freedom to provide services guaranteed by Article 56 TFEU. Indeed, in the absence of all transparency, an award to an undertaking located in the Member State in which the award procedure takes place, amounts to a difference in treatment which operates mainly to the detriment of all undertakings which might be interested but which are loca‍t­ed in other Member States, since those undertakings have had no real opportunity of expressing their interest, and that difference in treatment amounts, in principle, to indirect discrimination on grounds of nationality, which is, in principle, prohibited by Article 56 TFEU (§ 38).

Although the obligation of transparency does not necessarily require there to be a call for tenders, it does require there to be a degree of publicity sufficient to enable, on the one hand, competition to be opened up and, on the other, the impartiality of the award procedure to be reviewed. In principle, therefore, a Member State may create an exclusive right for an economic operator by rendering binding for all employers and employers in a sector a collective agreement under which that operator, chosen by the social partners, is entrusted with the management of a compulsory supplementary social insurance scheme established for the employees in that sector, but may do so only if the adoption of the decision extending the collective agreement appointing a single managing body is conditional upon the obligation of transparency being complied with (§ 39-41).

Neither the referring court nor the French Government has mentioned any possible justification for the fact that the exclusive right to manage a supplementary social insurance scheme is awarded without any form of publicity (§ 42).

The following factors, even if taken together, do not represent a degree of publicity sufficient to ensure that interested operators may express their interest in managing the social insurance scheme at issue in the main proceedings, before an extension decision is adopted with full impartiality: (i) the fact that the collective agreements and the addenda thereto have been filed with an administrative authority and may be consulted on the Internet, (ii) the fact that notice is published in an official journal of the intention to start the procedure for extending such an addendum and (iii) the fact that any interested party has an opportunity to submit observations following that publication. Indeed, interested parties have only 15 days within which to submit their observations, an appreciably shorter time than the periods laid down, except in urgent cases, in Articles 38, 59 and 65 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, which is not applicable in the present case but which may serve as a reference point in this regard. Furthermore, according to the observations made by the French Government at the hearing before the Court, the competent Minister merely conducts a review of legality. It thus appears to be the case that the fact that a more advantageous offer exists and that an interested party has informed the Minister about it cannot prevent the extension of that agreement, this being a matter which the referring court must determine (§ 45).

In the specific circumstances of the cases in the main proceedings, it must be held that the effects of the present judgment will not concern the collective agreements under which a single body was appointed to manage a supplementary social insurance scheme and which a public authority has, before the date of delivery of the present judgment, made binding on all employers and employees within a sector, without prejudice to legal proceedings brought before that date (§ 53).