Opinion of the Advocate General — ECLI:EU:C:2000:151
Date: 2000-03-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Competition — Community rules — Matters covered — Collective agreements in 
pursuit of social policy objectives — Decision of the members of a profession to set up 
a supplementary pension scheme and to request the public authorities to make 
membership of the fund compulsory — Covered — Agreement of the members of a 
profession not subject to the same rules as a collective agreement between employers 
and employees 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC) and Arts 118 and 118b (Arts 117 to 120 of 
the EC Treaty have been replaced by Arts 136 EC to 143 EC); Agreement on social 
policy concluded between the Member States of the European Community with the 
exception of the United Kingdom, Arts 1 and 4) 
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SUMMARY — JOINED CASES C-180/98 TO C-184/98 
2. Competition — Community rules — Undertaking — Definition — Self-employed 
medical specialists — Covered — Contribution to a single occupational pension 
fund — Medical practitioners acting as undertakings 
(EC Treaty, Arts 85, 86 and 90 (now Arts 81 EC, 82 EC and 86 EC)) 
3. Competition — Community rules — Undertaking — Definition — Professional orga­
nisation governed by a public-law statute — Covered — Association of medical 
specialists 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
4. Competition — Agreements, decisions and concerted practices — Setting up of an 
occupational pension fund by the members of a liberal profession — Whether 
permissible — Decision of the public authorities to make membership of the fund 
compulsory — Lawfulness 
(EC Treaty, Arts 5 and 85 (now Arts 10 EC and 81 EC)) 
5. Competition — Community rules — Undertaking — Definition — Pension fund — 
Covered — Non-profit-making body — Solidarity aspects — Social objective — 
Irrelevant 
(EC Treaty, Art. 85 et seq. (now Art. 81 EC et seq.)) 
6. Competition — Public undertakings and undertakings to which Member States grant 
special or exclusive rights — Pension fund responsible for managing certain insurance 
services in a professional sector — Dominant position — Abuse — Criteria for 
assessment — Not covered 
(EC Treaty, Arts 86 and 90 (now Arts 82 EC and 86 EC)) 
7. Competition — Public undertakings and undertakings to which Member States grant 
special or exclusive rights — Undertakings responsible for managing services of general 
economic interest — Pension fund responsible for managing the supplementary 
pension scheme of the members of a liberal profession 
(EC Treaty, Arts 86 and 90 (now Arts 82 EC and 86 EC)) 
1. Whilst agreements concluded in the 
context of collective bargaining 
between employers and employees 
and aimed at improving employment 
conditions are not, by reason of their 
nature and purpose, to be regarded as 
falling within the scope of Article 85(1) 
of the Treaty (now Article 81(1) EC), 
such exclusion from the scope of Arti­
cle 85(1) cannot be applied to an 
agreement which, whilst being inten­
ded to guarantee a certain level of 
pension to all the members of a profes­
sion and thus to improve one aspect of 
their working conditions, namely their 
remuneration, is not concluded in the 
context of collective bargaining 
between employers and employees. 
The Treaty contains no provisions, 
comparable to Articles 118 and 118b 
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PAVLOV AND OTHERS 
of the Treaty (Articles 117 to 120 of 
the Treaty have been replaced by 
Articles 136 EC to 143 EC) or Arti­
cles 1 and 4 of the Agreement on social 
policy concluded between the Member 
States of the European Community 
with the exception of the United King­
dom, encouraging the members of the 
liberal professions to conclude collec­
tive agreements with a view to improv­
ing their terms of employment and 
working conditions and providing that, 
at the request of members of the 
professions, such agreements be made 
compulsory by the public authorities, 
for all the members of the profession in 
question. 
(see paras 67-69) 
2. Self-employed medical specialists who 
provide, in their capacity as self-
employed economic operators, services 
on a market, namely the market in 
specialist medical services, and who are 
paid by their patients for those services 
and assume the financial risks attached 
to the pursuit of that activity carry on 
an economic activity and are thus 
undertakings within the meaning of 
Articles 85, 86 and 90 of the Treaty 
(now Articles 81 EC, 82 EC and 86 
EC). The complexity and technical 
nature of their services and the fact 
that the practice of their profession is 
regulated cannot alter that conclusion. 
Moreover, where such practitioners 
decide, through their national associa­
tion, to contribute collectively to a 
single occupational pension fund; they 
are acting as undertakings within the 
meaning of Articles 85, 86 and 90 of 
the Treaty and not as final consumers. 
(see paras 76-77, 82) 
3. The fact that a professional organisa­
tion is governed by a public-law statute 
does not preclude the application of 
Article 85 of the Treaty (now Arti­
cle 81 EC), which, according to its 
wording, applies to agreements 
between undertakings and decisions 
by associations of undertakings. So, 
the legal framework within which an 
association decision is taken and the 
legal definition given to that frame­
work by the national legal system are 
irrelevant as far as the applicability of 
the Community rules on competition 
and, in particular, Article 85 of the 
Treaty, are concerned. 
Nor can an association of medical 
specialists be taken outside the scope 
of Article 85 of the Treaty by the fact 
that its main task is to protect the 
interests of its members, and in parti­
cular their income, which is made up in 
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SUMMARY —JOINED CASES C-180/98 TO C-184/98 
part by supplementary pensions, in 
negotiations with national authorities 
concerning the cost of medical services. 
(see paras 85-86) 
4. A decision by the members of a profes­
sion to set up an occupational pension 
fund entrusted with the management of 
a supplementary pension scheme and 
to request the public authorities to 
make membership of that fund com­
pulsory is not contrary to Article 85(1) 
of the Treaty. The decision to set up the 
fund does not appreciably restrict 
competition within the common mar­
ket in that the cost of the supplemen­
tary pension scheme has only a mar­
ginal and indirect influence on the final 
cost of the services offered by the 
members of that profession. Further­
more, the request made to the public 
authorities to make membership com­
pulsory is made under a scheme iden­
tical to those existing under the 
national law of a number of countries 
concerning the exercise of regulatory 
authority in the social domain. Such 
regimes are designed to promote the 
creation of supplementary pensions 
provided in connection with employed 
or self-employed activity and include a 
number of safeguards. Thus Articles 5 
(now Article 10 EC) and 85 of the EC 
Treaty do not preclude public autho­
rities from making membership of such 
funds compulsory. 
(see paras 95, 97-101 and 
operative part 1) 
5. A pension fund which itself determines 
the amount of the contributions and 
benefits and operates on the basis of 
the principle of capitalisation, which 
has been made responsible for mana­
ging a supplementary pension scheme 
set up by a profession's representative 
body and membership of which has 
been made compulsory by the public 
authorities for all members of that 
profession, is an undertakings within 
the meaning of Articles 85, 86 and 90 
of the Treaty. 
Neither the fact that such a fund is 
non-profit-making nor the aspects of 
solidarity in the way in which it 
operates is sufficient to relieve it of its 
status as an undertaking within the 
meaning of the competition rules of the 
Treaty. Conditions, such as the pursuit 
of a social objective, the presence of the 
said solidarity aspects and of restric­
tions or controls on investments made 
by the fund do not prevent the activity 
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PAVLOV AND OTHERS 
engaged in by such a fund from being 
regarded as an economic activity. 
(see paras 117-119 and 
operative part 2) 
6. A pension fund which has a legal 
monopoly in the supply of certain 
insurance services in a professional 
sector of a Member State and thus on 
a substantial part of the common 
market must, in that respect, be regar­
ded as occupying a dominant position 
within the meaning of Article 86 of the 
Treaty. 
However, the mere creation of a domi­
nant position by a Member State 
through the grant of exclusive rights 
within the meaning of Article 90(1) of 
the Treaty (now Article 86(1) EC) is 
not in itself incompatible with Arti­
cle 86 of the Treaty. A Member State 
will be in breach of the prohibitions 
laid down by those two provisions only 
if the undertaking in question, merely 
by exercising the exclusive rights 
granted to it, is led to abuse its 
dominant position or where such rights 
are liable to create a situation in which 
that undertaking is led to commit such 
abuses. 
There is an abusive practice contrary to 
Article 90(1) of the Treaty, in particu­
lar, where a Member State grants to an 
undertaking an exclusive right to carry 
on certain activities and creates a 
situation in which the undertaking is 
manifestly not in a position to satisfy 
the demand prevailing on the market 
for activities of that kind. 
(see paras 126-127) 
7. Articles 86 and 90 of the Treaty (now 
Articles 82 EC and 86 EC) do not 
preclude the public authorities from 
conferring on a pension fund the 
exclusive right to manage a supplemen­
tary pension scheme for the members 
of a profession. 
(see para. 130 and operative part 3) 
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