Is the number of persons involved in an agreement for sharing clients relevant to establish whether that agreement results in a significant distortion of competition under Article 101 TFEU?

This question was referred by the Court of Cassation of Romania to the Court of Justice (CJ) in the Case C-172/14, ING Pensii v Consiliul Concurenţei. The case arose when the Competition Authority of Romania condemned 14 managers of private pension funds, including ING Pensii, for entering into an agreement for sharing clients and ING Pensii challenged the decision before the Romanian judges.
The CJ pointed out that agreements for the sharing of customers are amongst the most serious restrictions of competition. Then it went on ascertaining whether the agreement put in place by ING Pensii could be regarded as an object competition restriction. Considering the provisions and the objectives of the agreement as well as the context in which it was concluded, the CJ replied in the affirmative and found that such agreement fell within the scope of Article 101 TFEU. Therefore, the question of how many clients were concerned by that agreement was not a relevant factor to establish whether ING Pensii had breached competition. Referring to the Opinion of the AG, the CJ stressed that the finding that a sharing customers agreement infringed competition did not have to be based on the number of persons concerned by the arrangement, but rather on the provisions and the objectives of the agreements and its context.

ING Pensii v Consiliul Concurenţei confirmed the Expedia doctrine (Case C-226/11) as for a strict formalistic approach in assessing the object restrictions, whose competition impact is then not relevant.

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