Critical Interpretation of article 101 (1) TFEU on an anti – competitive share clients agreement of a Romanian pension fund
Following a request for a preliminary ruling under article 267 TFEU from Înalta Curte de CasaĠie úi JustiĠie (High Court of
Cassation and Justice of Romania), the Court of Justice of the European Union (Second Chamber) ruled on the 16th of
July 2015 on the interpretation of Article 101(1)(c) TFEU.
The request was made in the context of the proceedings between ING Pensii – Societate de Administrare a unui Fond
de Pensii Privat SA (hereinafter referred to as “ING Pensii”), a company administering a private pension fund, and
Consiliul ConcurenĠei (the Romanian Competition Council, hereinafter referred to as “Consiliul ConcurenĠei”) concerning
an application for the annulment of a decision of Consiliul ConcurenĠei imposing a fine on ING Pensii for its participation
in an agreement to restrict competition on the Romanian private pension fund market.
Background:
On 7 September 2010, Consiliul ConcurenĠei by Decision no. 39/2010 imposed fines on 14 companies managing private
pension funds, including ING Pensii, on the grounds that agreements to share clients had been concluded between
those companies, infringing thus the provisions of the Romanian and EU competition legislation, mainly article 5(1) of
Law no. 21/1996 and article 101 TFEU.
Those agreements had as object the sharing by those companies of the persons who had signed two different private
pension fund affiliation applications during the initial legal affiliation period described by the provisions of Law 411/2004
concerning private pension funds. Hence, the companies shared those persons (referred to by Consiliul ConcurenĠei as
“duplications”) equally between them, avoiding the random allocation of duplications according to the relevant legal
provisions.
On 4 October 2010, ING Pensii sought the annulment or, in the alternative, the partial annulment of Consiliul
ConcurenĠei’s Decision before Curtea de Apel Bucureúti (Bucharest’s Court of Appeal) arguing that the said agreements
were not infringing the Romanian competition legislation and moreover that the conditions for the application of article
101 TFEU were not fulfilled. ING Pensii’s request was dismissed by Curtea de Apel Bucureúti, ING Pensii appealing
Curtea de Apel Bucureúti’s judgment before Înalta Curte de CasaĠie úi JustiĠie.
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