ING Pensii, Societate de Administrare a unui Fond de Pensii Administrat Privat SA v Consiliul Concurenței.
Date: 2015-07-16
30. According to settled case-law established by the judgment in LTM (56/65, EU:C:1966:38), the alternative nature of those requirements, indicated by the conjunction ‘or’, leads to the need to consider, in the first place, the precise purpose of the concerted practice, in the economic context in which it is to be pursued. Where, however, an analysis of the terms on which the concerted practice is conducted does not reveal a sufficient degree of harm to competition, the effects of the concerted practice should then be considered and, for it to be caught by the prohibition, it is necessary to find that those factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see judgments in Beef Industry Development Society and Barry Brothers , C‑209/07, EU:C:2008:643, paragraph 15, and T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 28).
31. With regard to the concept of restriction ‘by object’, it should be noted that certain types of coordination between undertakings reveal, by their very nature, a sufficient degree of harm to the proper functioning of normal competition so that there is no need to examine their effects (see, to that effect, judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraphs 49 and 50 and the case-law cited).
32. It is established case-law that agreements whose object, as will be apparent from the very nature of such agreements, is to share customers for services constitute forms of collusion that are particularly injurious to the proper functioning of normal competition. Accordingly, agreements to share customers, like agreements on prices, clearly form part of the category of the most serious restrictions of competition (see, to that effect, judgment in Commission  v Stichting Administratiekantoor Portielje , C‑440/11 P, EU:C:2013:514, paragraphs 95 and 111).
33. The Court has also stated that, in order to determine whether an agreement between undertakings or a decision by an association of undertakings has those characteristics, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the actual conditions of the functioning and structure of the market or markets in question (see judgment in CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 53 and the case-law cited).
48. Lastly, in order for the condition that an agreement within the meaning of Article 101(1) TFEU must be capable of affecting trade between Member States to be fulfilled, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law and of fact, that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (see judgments in Javico , C‑306/96, EU:C:1998:173, paragraph 16; Bagnasco and Others , C‑215/96 and C‑216/96, EU:C:1999:12, paragraph 47; and Dalmine  v Commission , C‑407/04 P, EU:C:2007:53, paragraph 90).
49. As regards the ability of an agreement, decision or concerted practice extending over the whole of the territory of a Member State to affect trade between Member States, it is settled case-law that such an agreement, decision or concerted practice has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the FEU Treaty is designed to bring about (see judgments in Vereeniging van Cementhandelaren  v Commission , 8/72, EU:C:1972:84, paragraph 29; Commission  v Italy , C‑35/96, EU:C:1998:303, paragraph 48; and Wouters and Others , C‑309/99, EU:C:2002:98, paragraph 95).