OPINION OF ADVOCATE GENERAL
WAHL
delivered on 23 April 2015 ( 1 )
Case C‑172/14
ING Pensii — Societate de Administrare a unui Fond de Pensii Administrat Privat SA
v
Consiliul Concurenţei
(Request for a preliminary ruling
from the Înalta Curte de Casaţie şi Justiţie (Romania))
‛Reference for a preliminary ruling — Competition — Agreements, decisions and concerted practices — Arrangements for allocating clients on the Romanian market for the private management of compulsory pension funds — Existence of a restriction of competition ‘by object’ for the purposes of Article 101(1) TFEU — Effect on trade between Member States’
1.
The present case originates from legal proceedings between ING Pensii — Societate de Administrare a unui Fond de Pensii Administrat Privat SA (‘ING Pensii’), a company managing a private pension fund, and the Consiliul Concurenţei (Romanian competition authority), for the annulment of a decision ordering the company to pay a fine for participation in an agreement the aim of which was to restrict competition on the private pension fund market. It relates more specifically to agreements, established by the managers of mandatory private pension funds, to allocate ‘duplications’, that is individuals who, either through ignorance of the relevant rules or through the negligence of certain commercial agents, subscribed to two or more funds during the initial affiliation procedure provided for by statute in 2007 (‘duplications’).
2.
This reference for a preliminary ruling, the reason for which is, to a large extent, due to differences in interpretation by the Romanian courts, requires the Court to provide clarification regarding the concepts of restriction ‘by object’ and ‘appreciable distortion of competition’. It provides, in particular, an opportunity to recall the factors which must be taken into account and the method of analysis which must be used in determining whether an agreement has an anti-competitive object for the purposes of Article 101(1) TFEU.
I – National legal framework
3.
The system for allocating duplications at issue in this case forms part of Romanian national legislation relating to the establishment, organisation and operation of the compulsory private pension fund market.
4.
The relevant national law is undeniably characterised by a certain degree of complexity. While it cannot be claimed that they are exhaustive, for the purposes of the analysis below I would like to draw attention to the considerations which follow.
A – General rules relating to affiliation to private pension funds
5.
The pension system in Romania is composed of the following:
—
first pillar: mandatory component, based on redistribution, publicly managed;
—
second pillar: mandatory component, based on capitalisation, privately managed by public limited pension fund management companies which are governed by Law No 411/2004 on private pension funds (legea privind fondurile e pensii administrate privat); ( 2 )
—
third pillar: voluntary component, based on capitalisation, also privately managed.
6.
Pursuant to Law No 411/2004, 18 commercial companies with the management of pension funds as their sole object were approved by the Comisia de Supraveghere a Sistemului de Pensii Private (Private Pension Schemes Board) (‘CSSPP’) during the period from 25 July 2007 to 9 October 2007, each company being entitled to manage only one pension fund in Romania.
7.
Under Article 30(1) of Law No 411/2004, persons aged 35 years or under who are members of and pay contributions to the public pension scheme (first pillar) must also belong to a private pension fund (second pillar).
8.
Persons aged over 45 and those who do not contribute to the public pension scheme (first pillar) may not belong to the second pillar. Persons aged between 35 and 45 who contribute under the first pillar may choose whether or not to participate under the second pillar (Article 30(2) of Law No 411/2004). Regardless of whether they make contributions under the first and second pillars, any natural person may contribute under the third pillar, although that cannot have the effect of replacing contributions under the first and second pillars in the case of persons obliged to contribute to those pension schemes.
9.
In relation to participants under the second pillar, who are the only ones affected by the case in the main proceedings, Article 31 of Law No 411/2004 provides that a person may not belong at the same time to more than one pension fund and may have only one account with the pension fund to which he belongs.
10.
Under Article 32(1) of Law No 411/2004, a person may register with a pension fund only by signing an individual affiliation application, on his own initiative, or following his allocation to the fund by the census authority.
11.
Under Article 33 of Law No 411/2004, any person who has not already become affiliated to one of the private pension funds within a certain time-limit is to be allocated on a random basis to a pension fund by the census authority. This allocation is carried out in proportion to the market share obtained by each of the fund managers (Article 33(2)).
B – Specific rules relating to the initial affiliation to a private pension fund, the procedure for validating affiliations and the random allocation of non-affiliated participants
12.
The procedure for initial affiliation to a private pension fund and the procedure for validating and allocating participants were governed by Order No 18/2007 concerning initial affiliation and registration of participants in private pension funds, ( 3 ) as amended and supplemented by Order No 31/2007 (‘Order No 18/2007’). ( 4 )
13.
Pursuant to Article 17(1) of Order No 18/2007, the initial procedure for affiliation to a private pension fund was to extend over a period of four months, which commenced on 17 September 2007 and ended on 17 January 2008 (Article 5(6) of Order No 18/2007). During that period, any persons who had not reached the age of 35 by 31 December 2007, or who reached that age on that date, and who met certain other requirements, were obliged to join a private pension fund (Article 4(1) and Article 5(3) of Order No 18/2007).
14.
In relation to the validation procedure and the random allocation of participants (Articles 19 to 31), Order No 18/2007 required managers to report twice per month (on the 1st and 15th of every month) to the National Office for Pensions and other Welfare Benefits (Casa Naţională de Pensii şi alte Drepturi de Asigurări Sociale, ‘the CNPAS’) with the details of persons who had signed an individual affiliation application during the two-week period preceding the filing of the report. If, in one of those bi-monthly reports, a person was named by one or more managers as having signed more than one individual affiliation application, or if it was ascertained that that person’s application had been validated on a temporary basis in an earlier report, the CNPAS was to enter the name of that person in the electronic table of duplications (Article 21(1) of Order No 18/2007). In that event, the fund managers were required by law to verify the authenticity of the individual affiliation application and the copy of the identity card each bearing the signature of the person who appeared to have signed more than one affiliation application and, if the application was found to be genuine, the managers could re-submit the details of the affiliation of the person concerned to the CNPAS in their next bi-monthly report.
15.
At the end of the initial affiliation procedure, those persons whose affiliation had appeared to be validated on a temporary basis were registered as validated, and those who appeared to have signed more than one individual affiliation application were entered on the register of participants as not validated and were randomly allocated. ( 5 ) Consequently, random allocation was to apply to those individuals who, although obliged to join a private pension fund during the initial affiliation stage, had failed to do so, and to those registered as persons whose affiliation had not been validated. Allocation to one of the private funds was carried out by the CNPAS, on a basis directly proportional to the number of persons whose affiliation had been validated for each private pension fund by reference to the total number of persons whose affiliation had been validated across all the private pension funds.
16.
Order No 31/2007, which amended and supplemented Order No 18/2007, also required managers to notify participants, within 15 days of the date of validation, of the pension fund with which their affiliation had been validated. If the participants so notified had not signed an individual affiliation application for the fund in question, they had the opportunity to submit a written request to the CSSPP and, once a decision had been taken on the request, the CSSPP would inform the manager whether or not the participant was affiliated to the privately-managed fund.
II – Facts, procedure and the question referred
17.
ING Pensii is a private company that manages pension funds. It operates, inter alia, in the compulsory private retirement pension market in Romania.
18.
Underlying the present case is an investigation carried out by the Consiliul Concurenţei in relation to a potential infringement of Article 5(1) of Law No 21/1996 on competition (legea concurenţei) ( 6 ) and of Article 81 EC (now Article 101 TFEU) on the Romanian compulsory private pension fund market (second pillar).
19.
At the end of that investigation, the Consiliul Concurenţei concluded, in particular, that anti-competitive agreements existed on that market to share clients between the commercial companies managing those funds.
20.
By Decision No 39 of 7 September 2010, the Consiliul Concurenţei fined 14 of those companies, including the applicant. The agreements in question, which were for the most part entered into on a bilateral basis and took various forms, concerned duplications. By entering into the agreements, the private pension fund administrators shared out the duplications equally between them (on a 50/50 basis) and thus sought to avoid any allocation of the duplications by the CNPAS.
21.
On 4 October 2010, ING Pensii claimed that the Curtea de Apel Bucureşti (Court of Appeal, Bucharest) should annul Decision No 39/2010 and, in the alternative, annul in part that decision with a view to reducing the amount of the fine imposed.
22.
The applicant claimed that the agreement in question did not infringe Article 5(1) of the Law on competition and that the conditions necessary for Article 101(1) TFEU to apply were not met. In particular, the applicant submitted that the allocation of participants registered as duplications had not had the effect of restricting, preventing or distorting competition on the Romanian compulsory private pension fund market or any significant part of that market. ING Pensii also argued that competition between managers of private pension funds had not been eliminated since they had been in competition with each other during the initial affiliation period.
23.
The Consiliul Concurenţei argued that, in order to establish the anti-competitive nature of the arrangements agreed between the private pension fund managers, including ING Pensii, it was necessary to take account of the legal framework on which the establishment and operation of the compulsory private pension fund market was based, as well as the specific features of the market on which those arrangements had been made.
24.
By judgment No 749 of 6 February 2012, ING Pensii’s appeal was dismissed by the Curtea de Apel Bucureşti.
25.
The applicant then lodged an appeal in cassation before the referring court. It submitted, inter alia, that choosing an algorithm for calculating duplications other than the statutory algorithm did not constitute an infringement of the Law on competition but, at most, an infringement of the specific legislation applicable to the compulsory private pension sector. In addition, since the arrangement was limited to the allocation of duplications, it could not have affected competition on the market in question, since the duplications, the number of which accounted for less than 1.5% of the market, were not the subject of competition between the managers of the private pension funds.
26.
ING Pensii also submitted that it had no practical or economic interest in the allocation of duplications in equal shares, given that it already had the greatest share of the market as at 15 October 2007. Moreover, the agreement had had a positive outcome in that it made the compulsory private pension affiliation procedure more efficient by giving participants a greater chance of being granted their choice than would have been the case with random allocation.
27.
Finally, the applicant stated that, in the present case, there was no evidence of any partitioning of the national compulsory private pensions market as a result of the choice of a different algorithm for calculating duplications. It was clear that the actual or potential effects of an agreement affecting a marginal percentage of the Romanian market were negligible and not at all of the kind to have any impact on the European Union market.
28.
The Consiliul Concurenţei contended that the appeal should be dismissed, submitting in essence that the agreement for allocating duplications was capable of distorting competition on the compulsory private pensions market and, as such, pursued an anti-competitive object. According to the Consiliul Concurenţei, the ability of an agreement to produce negative effects and the finding of an infringement consisting in the sharing of markets and sources of supply was not dependent on the number of clients actually shared, which is a factor relevant to the actual effects of an agreement.
29.
In those circumstances, the referring court decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:
‘In relation to a practice by virtue of which clients are shared out, is the specific and definitive number of those clients relevant in deciding whether the condition of a significant distortion of competition for the purposes of Article 101(1)(c) TFEU is fulfilled?’
30.
ING Pensii, the Consiliul Concurenţei, the Romanian Government and the European Commission submitted written observations to the Court and presented oral argument at the hearing held on 11 February 2015.
III – Analysis
31.
This request for a preliminary ruling invites the Court to indicate whether and to what extent the number of persons affected by sharing agreements such as those at issue in the main proceedings is relevant for the purposes of determining whether those agreements are caught by the prohibition on such agreements laid down by Article 101(1) TFEU.
32.
Bearing in mind the information provided by the referring court, two preliminary observations must be made.
33.
First, it is my opinion that, while in the main proceedings it would appear that it is only the application of national provisions of Romanian competition law, in particular Article 5(1) of the Law on competition, that is directly called into question, the admissibility of the question must clearly be conceded. In this instance, ING Pensii called into question the applicability of Article 101 TFEU, but that objection was dismissed by the referring court. Since it is precisely the conditions under which that provision is applicable that constitute the key issue of the case, one can only endorse the approach adopted by that court.
34.
In addition, it should be noted that that national provision, in the version currently in force, reproduces almost word for word the prohibition on agreements restricting competition laid down in Article 101(1) TFEU. In those circumstances, I consider that it is necessary, in line with the solutions adopted in numerous previous cases relating to restrictive practices under national competition law, to conclude that the present reference for a preliminary ruling is admissible. ( 7 ) It is clearly in the EU interest, in order to avoid future differences of interpretation, that provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. ( 8 )
35.
Secondly, it should be pointed out that, while the issue at the heart of the debate in the main proceedings is the existence of a restriction of competition ‘by object’, which will form the main focus of the issues addressed in this Opinion, the general terms used by the referring court in wording the question referred for a preliminary ruling also suggest that a wider consideration of the condition relating to a significant effect on competition is called for. The referring court has also made it clear that, in this case, it is seeking a ruling on both the anti-competitive nature of the agreement in question and on the question whether the agreements to share duplications were capable of altering the structure of the compulsory private pension fund market in that they have a significant effect on that market.
A – The relevance of the number of persons actually affected by the agreements at issue in determining whether they seek to restrict competition
36.
In this case, in order to answer the question put by the referring court, it seems to me imperative, having reviewed the relevant case-law, to examine the sharing agreements at issue. While, ultimately, it is only the referring court that can decide whether those agreements are such as to be caught by the prohibition of concerted practices laid down by Article 101(1) TFEU, the Court of Justice is none the less invited to provide guidance to the national court in determining whether those agreements have an anti-competitive object or, if they do not, whether they are anti-competitive in their effect.
