Keywords

Summary



Keywords

1 Competition - Community rules - Scope ratione materiae - Collective agreements in pursuit of social policy objectives - Collective agreement setting up a sectoral pension fund - Decision by the public authorities making affiliation compulsory - Not covered

(EC Treaty, Art. 3(g) and (i) (now, after amendment, Art. 3(1)(g) and (j) EC), Arts 5 and 85(1) (now Arts 10 EC and 81(1) EC) and Arts 118 and 118b (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC))

2 Competition - Community rules - Undertaking - Concept - Pension fund entrusted with the management of a supplementary pension scheme - Scheme operated in accordance with the principle of capitalisation - Covered

(EC Treaty, Art. 85 et seq. (now Art. 81 EC et seq.))

3 Competition - Public undertakings and undertakings to which Member States grant special or exclusive rights - Undertakings entrusted with the management of services of general economic interest - Pension fund entrusted with the management of a supplementary pension scheme

(EC Treaty, Arts 86 and 90 (now Arts 82 EC and 86 EC))

Summary

1 If Article 3(g) and (i) of the Treaty (now, after amendment, Article 3(1)(g) and (j) EC), Article 85(1) thereof (now Article 81(1) EC) and Articles 118 and 118b thereof (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) are construed as an effective and consistent body of provisions, it follows that agreements concluded in the context of collective negotiations between management and labour, in pursuit of social policy objectives such as the improvement of conditions of work and employment, must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 85(1) of the Treaty.

An understanding in the form of a collective agreement which sets up in a particular sector a supplementary pension scheme to be managed by a pension fund to which affiliation may be made compulsory by the public authorities does not, by virtue of its nature and purpose, fall within the scope of Article 85(1) of the Treaty. Such a scheme seeks generally to guarantee a certain level of pension for all workers in that sector and therefore contributes directly to improving one of their working conditions, namely their remuneration.

A decision by the public authorities, at the request of the parties to the agreement, to make affiliation to such a fund compulsory cannot therefore be regarded as requiring or favouring the adoption of agreements, decisions or concerted practices contrary to Article 85 of the Treaty or as reinforcing their effects. Accordingly, it does not fall within the categories of legislative measures which undermine the effectiveness of Articles 3(g) of the Treaty, Article 5 thereof (now Article 10 EC) or Article 85 thereof.

It follows that Articles 3(g), 5 and 85 of the Treaty do not preclude a decision by the public authorities to make affiliation to a sectoral pension fund compulsory at the request of organisations representing employers and workers in a given sector.

2 The concept of an undertaking for the purposes of Article 85 et seq. of the Treaty (now Article 81 et seq. EC) encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.

It therefore embraces a pension fund which has been entrusted with the management of a supplementary pension scheme, which has been set up by a collective agreement between organisations representing management and labour in a particular sector, membership of which has been made compulsory for all workers in that sector by the public authorities, which operates in accordance with the principle of capitalisation and which engages in an economic activity in competition with insurance companies. Neither the fact that the fund is non-profit-making nor the fact that it pursues a social objective is sufficient to deprive it of its status as an undertaking within the meaning of the competition rules of the Treaty.

3 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 supplementary pension scheme in a given sector.

The exclusive right of a sectoral pension fund to manage supplementary pensions in a given sector and the resultant restriction of competition may be justified under Article 90(2) of the Treaty as a measure necessary for the performance of a particular social task of general interest with which that fund has been entrusted.